
    William H. Harbeck, Plaintiff, v. Kate A. Harbeck, Defendant.
    (Supreme Court, Rockland Special Term,
    November, 1914.)
    Contracts — action on — agreement in writing as to income of trust fund — who entitled to enforce — when claim not barred by decree of Surrogate’s Court — pleading.
    A complaint alleged that on June 16, 1894, A and B were-holding a trust fund and paying the income to C during his lifetime, as required by the will of D, which had given each of them a one-half interest in the fund, subject to C’s life interest, which ownership in common they had by contract changed to a joint ownership; that A was the father of plaintiff who at that time was an infant; that on said date for a valuable consideration passing between them A and B agreed in writing that from and after the death of C the income from the fund should be paid to plaintiff during his life; that A died in 1904; that C died in 1908; that on January 10, 1909, B, in writing, ordered the depository of the fund to pay until further notice from him the income accrued and to accrue on the fund after C’s death to plaintiff’s guardian; that plaintiff had received all such income except that which accrued on January 1, 1914; that B died in November, 1910, leaving a will which has been probated; that the executor thereof has accounted and has been discharged; that defendant in Hay, 1914, as residuary legatee under the will of B, took possession of said- fund-and has refused to pay over the income which accrued on January 1, 1914, and refuses to pay over to plaintiff the income which may hereafter accrue; that said fund is now invested, etc. Held, that plaintiff was entitled to enforce the contract against defendant. •
    That plaintiff’s claim was not barred by a decree of the Surrogate’s Court settling the account of the executrix of B and directing that all assets and property whatsoever belonging to his estate be delivered to the defendant in this action.
    A claim that there was a defect of parties defendant in that (a) personal representatives of B are not made defendants; (b) the executrix of his estate is not made a defendant, and (c) the former depository of the fund is not made a defendant, is without merit, as the agreement of June 16, 1894, did not charge any duties as to the fund upon any of those persons and the fund is now in the sole possession of the defendant.
    Demubbeb to amended complaint.
    Frank Comesky (Alfred S. Brown, of counsel), for plaintiff.
    Frederick N. Watriss (Hugh M. Hewson, of counsel), for defendant.
   Tompkins, J.

The defendant demurs to the amended complaint upon the grounds:

1. That the amended complaint does not state facts " sufficient to constitute a cause of action.

2. That there is a defect of parties defendant in that the personal representatives of the estate of John Henry Harbeck, deceased, who are necessary parties, are not made parties defendant.

3. That there is a defect of parties defendant in that the executrix of the estate of John Henry Harbeck, deceased, a necessary party, is not made a party defendant.

4. That there is a defect of parties defendant, in that the United States Trust Company of New York, a necessary party, is not made a defendant.

The amended complaint seems to me to state a cause of action. Summarizing the complaint, it alleges that on June 16, 1894, Henry Harbeck and John Henry Harbeck were holding a fund of $10,000, and paying the income therefrom to Daniel Barker, Jr., during his lifetime, as required by the will of Elvira Harbeck, which had given each of them a half interest in said fund, subject to Barker’s life interest, which ownership in common they had, by contract, changed to a joint ownership; that Henry Harbeck was the father of the plaintiff, who was then an infant; that on the said 16th day of June, 1894, for valuable considerations passing between them, the said Henry Harbeck and John Henry Harbeck, in writing, agreed that from and after the death of Barker the income from the said fund should be paid to the plaintiff, during the plaintiff’s life; that Henry Harbeck died on January 1,-1904; that Barker died in August,-1908; that on January 10,1909, John Henry Harbeck, in writing, ordered the depository of the fund to pay, until further notice from him, the income accrued and to accrue upon said fund, after Barker’s .death, to the plaintiff’s guardian, the plaintiff still being under twenty-one years of age; that the plaintiff has received all such income except that which accrued on January 1, 1914; that John Henry Harbeck died on November 8, 1910, leaving a will which has been probated; that its executor has accounted and been discharged; that the defendant, in .May, 1914, as residuary legatee, under John Henry Harbeck’s will, took possession of the said fund, and has refused, to pay over the income therefrom, which accrued on January 1, 1914, and refuses to pay over to the plaintiff "the income that may hereafter accrue; that the fund is now invested in ten first mortgage five per cent bonds of the Texas and Pacific Bailroad Company.

This, briefly stated, is the substance of the plaintiff’s amended complaint. It is true that the plaintiff was not a party to the contract of June 16, 1894, but at that time he was an infant, the son of Henry Harbeck, and the contract was made for his benefit, and pursuant to that contract John Henry Harbeck and his executrix have paid to the plaintiff all income from the fund that has accrued since Barker’s death, which occurred six years ago, except that which has accrued since the executrix was discharged from her trust in March, 1914. There was a good consideration for the promise of John Henry Harbeck to pay the income that should accrue after Barker’s death, to the plaintiff, in the promise of Henry Harbeck to do likewise; and besides that a valuable consideration is alleged in the complaint, and for the purpose of this demurrer that must be assumed to be true.

This case is distinguishable from the cases cited by the defendant, because in this case the plaintiff was the infant son of one of the parties to the mutual agreement, and the other party to the promise, as well as the executrix, kept the agreement by actually paying the income of the fund over to the plaintiff, and making the first payments while the plaintiff was still an infant.

These facts, I think, entitle the plaintiff to enforce the contract against the defendant, who is John Henry Harbeck’s residuary legatee. Todd v. Weber, 95 N. Y. 181; Buchanan v. Tilden, 158 id. 109; Murphy v. Whitney, 140 id. 541; Brown v. Spohr, 180 id. 201; Locke v. Farmers’ Loan & Trust Co., 140 id. 135.

The plaintiff’s claim is not barred by the decree of the New York county Surrogate’s Court settling the account of the executrix of John Henry Harbeck, and directing that all “ assets and property whatsoever belonging to the estate of John Henry Harbeck be delivered to the defendant.” The fund was, in effect, a trust fund, and the trust never having been repudiated by John Henry Harbeck, or his executrix, but having, on the contrary, been fully performed by them, the property of the estate of John Henry Harbeck in the fund was simply the right to the principal thereof after the expiration of the trust, i. e., after the death of the. plaintiff; and, besides, it is to be borne in mind that the executrix of that estate was the defendant in this action, who, as an individual, now makes a claim, which is inconsistent with her own acts as such executrix, and the acts of her testator, in paying the income to the plaintiff prior to June, 1914.

The claim that there is a defect of parties defendant, in that (a) personal representatives of John Henry Harbeck are not.made defendants; (b) the executrix of the estate is not made a defendant, and (c) the United States Trust Company, the former'depository of the fund, is not made a defendant, is without merit.

The agreement of June 16, 1894, did not charge any duties as to the fund upon any of these persons, and the fund is now in the sole possession of the defendant.

The demurrer' will be overruled, with leave to the defendant to answer within twenty days, upon payment of costs.

' Demurrer overruled, with leave to defendant to answer within twenty days, upon payment of costs.  