
    Lotta Hopper, Plaintiff, v. Frank O. Brown and Clarence E. Dow, as Executors, etc., of Caroline S. Sherwood, Deceased, Defendants.
    (Supreme Court, New York Trial Term,
    April, 1901.)
    Statute of Limitations — Code C. P., §§ 383, 403 — Action by cestui que trust, as for money had and received, to recover a trust fund i which the trustee paid away improperly.
    The six-year Statute of Limitations applies to an action by a cestui que trust to recover, as for money had and received, a trust fund which the trustee paid to another person; and, where the trustee dies and leaves all his property to his widow and executrix, and she dies without accounting for the fund and her property goes to the hands of executors, an action against them brought by the cestui que trust within seven years and six months of the trustee’s unauthorized payment of the fund is not barred by the statute.
    Action to recover trust funds belonging to plaintiff of which the defendants became possessed.
    Hamilton E. Squier, for plaintiff.
    Gantz, Heier & McKennell, for defendants.
   McAdam, J.

This action is to recover the sum of $2,400 alleged to have been deposited in a savings bank by Benson Sherwood in trust for the plaintiff, which amount was thereafter drawn by the trustee and paid to some person other than the plaintiff. The jury found that there was an irrevocable trust made by the depositor in favor of the plaintiff; and the only question for determination is whether the contention of the defendants, who are the executors of the executrix of the decedent, that the claim is barred by the Statute of Limitations is correct. The three years’ limitation (Code, § 383, subd. 4) is inapplicable. A recovery is sought for money had and received by the trustee, and not for damages for taking, detaining or injuring plaintiff’s personal property. Fowler v. Bowery Sav. Bank, 113 N. Y. 455; Goodwin v. Griffis, 88 id. 629. The six-year limitation (Code, § 382), therefore, controls. On August 1, 1894, the unauthorized payment was made. The trustee died within a month thereafter, leaving a last will and testament which was duly proved, and Caroline S. Sherwood, the widow, duly qualified ¡as executrix of the will. She was also sole devisee and legatee of her husband’s property. The executrix ’ died April 12, 1898, without completing administration of the testator’s estate and without accounting for the property which came into her hands. A brother of the testator administered the unadministered estate, made an accounting, and paid over about $10,000 to the defendants, who are the executors of the widow. The cause of action accrued August 1, 1894. By the death of the trustee the running of the Statute of Limitations upon the liability was suspended for eighteen months, which period was no part of the time limited for the commencement of an action against the executrix. Code, § 403. Such an action, therefore, would not be barred by the statute until February 1, 1902 (Hall v. Brennan, 140 N. Y. 409; Riley v. Riley, 141 id. 409; Adams v. Fassett, 149 id. 61), and suit was brought January 5, 1901. The claim of the defendants that the death of the executrix deprived the plaintiff of the benefit of the suspension, as against the defendants, because they are not the executors of the trustee, is untenable. The running of the statute was suspended by the death of the trustee, and the death of the executrix could not affect the suspension. Motion for new trial denied.

Motion denied.  