
    Amelia Peters and Louise Peters, Appellants, v. William H. Peters, Respondent, Impleaded with Isabella Widder, Defendant.
    First Department,
    April 8, 1910.
    Trust — partnership — lands purchased with partnership funds— pleading— complaint against one holding legal title—devise conditioned on promise of devisee to apply property to certain purpose — demurrer — unintelligible cause of action.
    A partner who takes title to lands purchased with partnership funds for partnership purposes cannot as against his copartners assert that he alone is the beneficial owner.
    A complaint which in substance alleges that ■ the defendant’s predecessor in title purchased lands in his own name with partnership funds for the benefit of the partnership of which the plaintiffs are members, and devised them to the defendant with an understanding that he was to hold them on the same'trust, etc., states a cause of action.
    Aside from the question of partnership such complaint states a cause of action, for when one induces a. testator to make a devise apparently absolute upon a promise, express or implied, to devote the property to a certain purpose, equity will compel him to apply it in accordance with the promise. Silent acquiescence in such agreement is as effective as an express promise.
    A demurrer tp a cause of action which is unintelligible will be sustained.
    Appeal by the plaintiffs, Amelia Peters and .another, from an interlocutory judgment of the Supreme Court in favor of the defendant William H. Peters, entered in the office of the clerk of the county of Mew York on the 11th day of Movember, 1909, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining the said defendant’s demurrer to the first and third causes of action in the amended complaint.
    
      Asa L. Garter, for the appellants.
    
      Albert R. Resinshy, for the respondent,
   Miller, J.:

This complaint contains a jumble oí evidentiary facts and inferences, but I think that the ultimate facts necessary to sustain a cause of action may be spelled out of the first cause, of action attempted to be pleaded. The parties’ are brothers and ' sisters, the only surviving members of the family. It is averred, among other things, that prior to 18J6 the father conducted a general livery and stable business; that in that year, being in failing health, he turned the conduct of the business over to the other members of the family under-the management of the mother; that she gave the oldest .brother, from the common savings, most-of which belonged to the father, $1,500 with which to purchase certain real property; that said property was so purchased, the title being taken in the name of said son pursuant to an understanding that it should be held by him for the benefit of his brothers and sisters; that thereafter the said business was conducted on said property thus purchased by all the members of the family, each contributing to the common enterprise and all sharing profits and losses equally ; that the father died intestate .February 3, 1894, leaving five children him surviving; that no letters of administration were taken out by them, but that they mutually agreed to continue the business, sharing - the profits and losses'equally; that the oldest brother, John George Peters,’ in whose name - the title to the property stood, died on or about the ■ 20th day of September, 1894; that shortly prior thereto he told the defendant William H. Peters that there was not enough property, to divide, and that the latter must hold the- real estate and business in his name for the benefit of the remaining members of the family, and that they must continue to share the profits and losses as theretofore ; that said- defendant and the other members of the family consented to that arrangement; that shortly thereafter .the said John George Peters, made his will, leaving all his property, both real and personal, to the said defendant, intending thereby that he should have the legal title and should hold it for the benefit of all the surviving members of the family, so that the business could be conducted as theretofore; that the surviving members of the family continued to conduct the business as theretofore, sharing profits and losses equally; that in the year 1895 the said survivors purchased tjie property in suit for tfie purpose of keeping and renting the same for profit, paving therefor with money earned by them in their common enterprises and with the proceeds arising from the sale of the property first above mentioned, the title to said property being taken in the name of the said defendant; that shortly before the commencement of this action the said defendant asserted that he was the beneficial owner of said property, and has since refused to account for the proceeds therefrom. Among the seventeen prayers for relief the plaintiffs ask that the copartnership be dissolved, that a receiver be appointed, that the said defendant be required to account, and that the plaintiffs be decreed to be the equitable owners, each of one-quarter of the property in suit.

I think the necessary inferences from .the foregoing statement of fads are that, upon the death of the father, the brothers and sisters agreed to, and did, form a copartnership to continue the business theretofore conducted by all as members of a family, if not of a copartnership, agreeing to share profits and losses equally; that . thereafter the business was continued by them, pursuant to that agreement, as copartners, the' oldest brother holding the legal title to the copartnership property, but asserting no beneficial ownership in himself; that for the purpose of convenience he devised the property to the next oldest brother, to be held by him .in the same way, pursuant to the agreement of all the copartners; and that the property in suit was purchased by the copartnership with the copartnership property, legal title being taken in the name of the defendant.

It is immaterial that the legal title to the copartnership property happened to be in one of the partners, and it seems to me that it is immaterial whether he happened to obtain it by devise or by grant. Indeed, the title to the property in suit was obtained by grant. It is unnecessary to determine whether the oldest brother could have successfully asserted beneficial ownership, because he did not do so. The defendant is in the position of having obtained property for a copartnership with copartnership funds, and of now asserting that he is the beneficial owner. Authorities are not needed to show that he cannot do that. It is true that it is nowhere distinctly alleged that an agreement was made to form a copartnership, but I think that is the necessary inference. The second cause of action does specifically allege the formation of a copartnership on the 21st day of September, 1894, but it may be important for the plaintiffs to rely upon a copartnership existing prior thereto.

Moreover, eliminating the idea of a copartnership from the facts pleaded, equity would construct a trust. It. is now settled law in this State that when one induces a testator to make to him an apparently absolute devise or bequest by a promise, express or implied, on his part, tó devote the devise or bequest'to a certain purpose, equity will compel him' to apply the property thus obtained in accordance with his promise. (Matter of O'Hara, 95 N. Y. 403; Amherst College v. Ritch, 151 id. 282; Edson v. Bartow, 154 id. 218; Rutherfurd v. Carpenter, 134 App. Div. 881.) True, it is not distinctly alleged that the said John George Peters was induced to devise his property to®'the said defendant by the latter’s promise to hold it for the benefit of the surviving members of the family ; but the eases above cited hold that silent acquiescence may have the effect of an express promise. The purpose of the testator in making the will, the defendant’s assent to that purpose, and the, subsequent making of the will'to carry out that purpose are alleged.

The demurrer to the third cause of action was properly sustained, as it is unintelligible.

The judgment should be reversed in so far as it sustains the demurrer to' the first cause of action, and the demurrer to that cause of action should be overruled,-with leave to defendant to withdraw demurrer and answer within twenty days after service of the order of this court and the judgment, so far as it sustains the third cause of action, affirmed with leave to the plaintiffs' to amend the complaint in relation to the third cause of action within a like period, without costs of this appeal to either party.

Ingraham, Pi J., McLaughlin and Laughlin, JJ., concurred.

As to first cause of action, judgment reversed and demurrer overruled, with' leave to defendant to withdraw demurrer and to answer, and as to third cause of action, judgment affirmed, with leave to plaintiffs to amend; no costs of appeal to either party.' Settle order on notice.  