
    Edith Williams, Respondent, v. Louisa A. Fischlein, Individually and as Executrix and Trustee of the Last Will and Testament of Louise A. Fischlein, Deceased, Appellant, Impleaded with Mina E. Harvey (Formerly Mina E. Fischlein), Individually and as Executrix and Trustee of the Last Will and Testament of Louise A. Fischlein, Deceased, and Kittie G. Wiley, Defendants.
    Second Department,
    April 21, 1911.
    Pleading — equity — impressing trust on property — complaint — parties — foreign estate — bonds secured by mortgage on land here — situs of debt. •. . |
    For the purposes of pleading one sued in a representative capacity is a separate and distinct person from the same person sued as an individual. i , ■
    Where the complaint in am action against persons individually and as executors and trustees under a -will alleges only that plaintiff’s mother who was also the mother; of the defendants and their testator, agreed with plaintiff that, if she; would convey to her a certain interest in the father’s estate, she, the|mother, would “preserve and retain” it “in trust using only the income for life, and upon her death would give back to the plaintiff said interest, which was worth about $3,000,. but fails to set forth the mother’s' will or to allege that any trust was created thereby, or that any one ¡was appointed trustee thereunder, it is demurrable as not stating á cause of action against the defendants in then-alleged capacity as trustees.
    Nor does the complaint state a cause of action against the defendants individually for damagesjfor breach of the contract to which they were ' not parties. , . ■
    Where it. appears that the defendants are foreign executors the action cannot be maintained against them as executors, as one at -law for damages for breach of contract by then- testatrix, for the court has no jurisdiction of the. personj of the defendants.
    Since, so far as the complaint discloses, the trust was one of personalty only, its execution upon the death of the testatrix did not devolve upon her executors, but it vested in the Supreme Court until the appointment of a new trustee.
    If, therefore, the action be deemed one in furtherance of the trust, it is not maintainable againstjthe defendants as executors. >
    
      It seems, that the complaint states a cause of action against the defendants as executors upon the theory that the deceased repudiated the' trust agreement, and that property which might have been impressed with a trust in plaintiff’s behalf in the deceased’s lifetime is now-in the hands of her executors.
    When necessary to prevent" a failure of justice, equity will assume jurisdiction against foreign executors, but only where the relief asked relates to property -within its jurisdiction.
    Equity, however, will not take jurisdiction solely because a portion of the estate of a decedent, who was a resident of New Jersey, consists of a bond of a resident of this State secured by a mortgage on real estate located here.
    Where a creditor’s domicile and the bonds are both without the State, the debt evidenced by the bond has no situs here, even though the debtor be a resident.
    Where the complaint fails to allege that the bond or any of the estate of the deceased is within the State, it is demurrable as against the defendants as executors, even though it otherwise stated a good cause of action against them. »
    If in such a suit the court had jurisdiction of the subject-matter and the persons of the foreign executors, it seems that the individuals who are ultimately entitled to the property on which it was sought to impress the trust would be proper parties defendant.
    But where such a suit-fails as against the executors, it fails of necessity as against the individuals.
    Appeal by the defendant, Louisa A. Fischlein, individually and as executrix and trustee, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of December, 1910, upon the decision of the court, rendered after a trial at the- Kings County. Special Term, overruling the said defendant’s demurrer to the complaint.
    
      Helen K. Hoy, for the appellant. ‘ ;
    
      E. W. Cushing, for the respondent.
   Burr, J.:

The plaintiff brings this action against Louisa A. Fischlein and Mina E. Harvey, ' She seeks therein to hold them liable individually and as executors of the last will and testament of Louise A. Fischlein, and as trustees under said will. For the purposes of pleading, one sued in a representative capacity is a separate and distinct person from one (although the same one) sued as an individual. • (Leonard v. Pierce, 182 N. Y. 431; Rathbone v. Hooney, 58 id. 463.) For the purposes of a. demurrer, therefore,, we may treat this action, as if persons different from the individuals had been named as executors, and persons different from either had been named as trustees. Plaintiff’s right'to receiver depends upon the effect to be given to the agreement upojn the part of her mother, Louise A. Fischlein, who was also the mother of the defendants herein, that, if plaintiff would! convey to her such interest as she had in the real estate devised to her by her father’s will, which consisted of one-sixth part thereof subject to the mother’s life. estate therein, she, the] mother, would ‘ preserve and retain in ‘ trust the plaintiff’s one-sixth (|) interest in the estate, given to her by the last will and testament of her father, using only" the income thereof for jlif6, and upon her death would give to. the plaintiff the said one-sixth interest in her father’s estate, which interest was ancj is worth approximately three thousand ($3,000.00) dollars. ” It is not entirely clear from the complaint whether plaintiff seeks |to recover damages for breach of this agreement upon her mother’s part, whether she proceeds upon the theory that her mother recognized the trust while living, and she now seeks to enforce, final execution thereof by defend- - ants as successors to such trust, or whether she proceeds upon, the theory that the agreement was repudiated by her mother, and seeks to impress] upon- the property left by her, .inwhosesoever hands itjmay.be,'a trust resulting-from such agreement enforcible as against them. The prayer for relief is broad enough to include them all,

As against defendants in their representative capacity as trustees under the will of- Louise A. Fischlein, no cause of action is stated upon any theory. So far as the complaint discloses, Mrs. Fischlein’s ¡will created no trust, appointed no ’ per-. sons as trustees thereunder, and there are no such persons in existence. As against ‘defendants in their individual capacity, no cause of action is stated for damages. They were not parties to the agreement, if there was a. breach thereof, nor have they ever assumed its performance, nor does it appear that, as yet, they have received ¡any property under their mother’s will. We delay for a moment considering the question whether they might not be proper parties under certain circumstances to a suit in equity to consider the action as one against the defendants in their representative capacity as • executors of their mother’s will.. It may not he maintained against them as an action at law for damages for a broken agreement upon their testator’s part, because this court has no jurisdiction of their persons. They are foreign executors solely. (Flandrow v. Hammond, 13 App. Div. 325; McGfrath v. Weiller, 98 id. 291.) If the action be deemed one in furtherance of the trust and to compel its final execution, then, passing by other objections, the trust being, so far as the complaint discloses, entirely one of personalty, upon the death of Mrs. Fischlein -the further execution of the trust would not devolve upon her executors, but would vest in the Supreme Court until a new trustee was appointed. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 20.)

We are inclined to the opinion that the complaint does state facts sufficient to constitute a cause of action in equity upon the ground that the deceased, Louise A. Fischlein, repudiated her trust agreement, and that property which was subject to be impressed with a trust in plaintiff’s behalf in her lifetime is now in the hands of defendants in their representative capacity as executors. But the same difficulty with regard to the jurisdiction of their persons and the subject-matter of the action still exists in connection with such an action which was heretofore suggested in connection with an action at law for damages. While equity, when necessary to prevent a total failure of justice, will in such a case assume jurisdiction so far as the relief to be secured relates to property within its jurisdiction (Bergmann v. Lord, 194 N. Y. 70), no case has been cited to us which goes further than this. Such cases seem to rest upon the doctrine that the ‘ ‘ res, ” the specific thing which is to be affected by the judgment, is here situated and within the jurisdiction of this court. But at the time of her death Louise A. Fischlein was and for some time prior thereto had been a resident of hiew Jersey. The fact that a portion of her personal estate consists of a bond of a resident secured by a mortgage upon real property located in Kings' county in this State does not of itself alter the situation. A debt upon a specialty has its situs where the specialty, in this case the bond itself, is. (Beers v. Shannon, 73 N. Y. 292, 299.) At least, where the creditor’s domicile and the bond also are without the State, the debt evidenced by the bond, even though the debtor be a resident here, has no situs within this State. Matter of Whiting, Id. 27 (Matter of Bronson, 150 N. Y. 1, 8; ; Matter of Fearing, 200 id. 340.) It does not appear affirmatively that the bond is within this State. Inferentially it appears that it is in New Jersey. The fact that this bond is secured by ai mortgage upon real property here located does not alter the situation. The mortgage creates no . estate in the land, and is simply a security for the debt represented by the bond. (1 Jones Mort. [6th ed.] § 44; Barson v. Mulligan, 191 N. Y. 306; Hubbell v. Moulson, 53 id. 225, 227, and cases there cited.) Stone v. Scripture (4 Lans. 186), relied upon by the learned justice at Special Term, is not an authority to the contrary.. In that case it appeared that an administrator had been appointed in the State of the debtor’s domicile, prior to the appointment of the administrator in the domicile of decedent. The language in the opinion in that case as to the situs of the bond and mortgage was not necessary to .its ■ decision, and should not be. extended to cases not resting upon similar facts, if indeed - itj is entirely accurate under any circumstances. 'Neither was this, case cited with approval in Maas v. German Savings Bank (73 App. Div. 524, 530), as the learned justice at Special Term indicates. On the contrary, its authority was' questioned, and the decision in the Maas case was opposed to the doctrine contained in the case of Stone v. Scripture.. (See decision in Maas v. German Savings Bank, 36 Misc. Rep. 154.) If- tlue court had jurisdiction in an equity., action, such as is hereinbjefore referred to, of the subject-matter of the action' and the persons of the foreign executors, it might be that the individual défendants would he proper parties to such' an action as the persons who might ultimately be entitled . to the property upon wliich it is sought to impress the trust. But when such an action fails as against the executors, the principal defendants, of necessity, it fails as against them also. We thinly, .therefore, that if plaintiff would enforce , her claim to impress-a trust upon, tie property of which Louise A. Fischlein died possessed, she must do so in the jurisdiction where the property is located arid where her legal representatives are: The interlocutory judgment entered herein must be reversed and the demurrer of the defendant Louisa A. Fischlein sustained, with costs of this appeal, and with leave to the plains tiff, within twentv days after the entry of the order herein, to amend her comjplaint upon payment of the costs of the demurrer and of this appeal.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Interlocutory judgment reversed and demurrer of the defend, aint Louisa A. Fischlein sustained, with costs of this appeal, and with leave to plaintiff, within twenty days after the entry of the order herein, to amend her complaint upon payment of the costs of the demurrer and of this appeal.  