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FIFTH DEPARTMENT, MARCH TERM, 1893.

"Fourth and lastly. I nominate and appoint Conrad Schumacher sole executor of this my last will and testament, hereby revoking all former and other wills by me made.

"In witness whereof I have hereunto set my hand and seal this first day of July, A. D., 1857."

In 1860 Salomea Lang, who was the wife of the appellant and one of the daughters of the testator, petitioned the surrogate for an accounting by Conrad Schumacher as such executor. But pending such proceedings she died, leaving a last will and testament which was admitted to probate February 5, 1861, in and by which she devised and bequeathed her estate to the appellant, her husband. The proceedings upon such accounting were continued and terminated in a decree of the Surrogate's Court, dated February 6, 1861, wherein Conrad Schumacher, as executor, was charged with the balance in his hand, $423.95, and was directed by such decree to apply the same towards the discharge of a mortgage upon the real estate left by the testator.

On the 20th day of December, 1862, Charles Lang, the appellant, conveyed all his estate, title and interest in the real estate left by the testator to Conrad Schumacher, in consideration of the sum, as mentioned in the deed, of $250.

In the year 1865 the real estate of the testator was sold by his executor. And subsequently, and in the year 1874, the proceeds thereof were distributed among the testator's children, with the exception of the share of Louis Ledrich.

On the 24th day of September, 1887, Conrad Schumacher executed his last will and testament, and shortly thereafter died. His will was admitted to probate on the 10th day of January, 1888, and letters thereon were issued to Charlotte Schumacher. In the month of April, 1890, Charlotte Schumacher, as executrix, petitioned the Surrogate's Court for a settlement of the accounts of Conrad Schumacher, as executor of the last will and testament of Frederick Ledrich. And in such petition stated that the only person interested in the settlement was Charles Lang; that on the 7th day of April, 1890, a citation was issued, directed to said Lang, requiring him to appear upon the settlement of the accounts of Conrad Schumacher, as executor. And such citation was served upon the said Lang, but nothing further appears to have been done thereon.

FIFTH DEPARTMENT, MARCH TERM, 1893.

Subsequently, Willis C. Jacus, as administrator of Louis Ledrich, deceased, presented to the Surrogate's Court a petition for the judicial settlement of the accounts of Conrad Schumacher. And such proceedings were had thereon that a decree was entered by that court on the 9th day of March, 1891, finally settling such accounts. But the appellant Lang was not cited to appear, and did not appear in such proceedings.

The surrogate found as conclusions of law:

"First. That the said deed from Charles Lang of his interest in the farm belonging to the Ledrich estate, to Conrad Schumacher, is binding upon the said Lang, and operates as an absolute estoppel.

"Second. That more than six years having elapsed since the right to commence this proceeding accrued, the same is barred by the Statute of Limitations." And concluded by ordering the proceedings dismissed.

August Becker, for the appellant.

Frederick Howard, for the respondent.

HAIGHT, J.:

The decree of the surrogate of February 6, 1861, entered upon the accounting of the executor, finally settled and disposed of the personal estate of the testator. This was expressly conceded upon the argument, and such was doubtless the effect of the decree. That being so, there remained only the real estate and the rents, issues and proceeds thereof to be accounted for.

The first transaction after the settlement of the personal estate, disclosed by the record, is the deed of Charles Lang to Conrad Schumacher, dated December 20, 1862, in which Lang conveys all of his estate, title and interest in the real estate left by the testator. As the devisee and legatee of his deceased wife, he had become vested with all of the right, title and interest that she had in the estate of her deceased father. Under the will, Ledrich had given the real estate to Schumacher, the executor, but in trust, with power to sell the same and divide the proceeds equally among his children. The legal title was thus vested in the trustee. But he held it for the benefit of the children, and the proceeds belonged to them. They were the equitable owners. Lang, being one of such equitable FIFTH DEPARTMENT, MARCH TERM, 1893. owners, and entitled to a share of the proceeds, executed the deed in question. In it he undertook to convey all his estate, title and interest. It is contended that he was not the owner, and, therefore, he conveyed nothing. True, he was not the legal owner, but, as we have shown, he was the equitable owner, and had an interest in the proceeds, which he could convey or release.

Again, it is said that the will, devising the real estate of the executor with directions for it to be sold, worked an equitable conversion of the realty into personal property. Suppose this to be so. It is not, however, apparent how the rights of the parties would be changed. The children would still be the equitable owners entitled to the proceeds. And we know of no rule that prevents the transfer of personal property by deed.

We are aware of the doctrine that prohibits a trustee from dealing with trust property for his own benefit. He will not be permitted to take advantage of his cestui que trust; but where the cestui que trust is of full age, and stands upon an even footing with the trustee, we see no reason why he may not settle with the trustee for a consideration, and either release or convey his interest in the trust estate.

It appears to us that the appellant, by the deed to Schumacher, undertook to convey his interest in the estate to Schumacher for the consideration of $250, which sum he admitted was paid to him, and that, by reason thereof, he is now estopped from claiming any further interest in the estate.

Mrs. Schumacher petitioned the surrogate for a settlement of the accounts of Conrad Schumacher in April, 1890, and in such petition stated that Lang had an interest in such settlement. She, doubtless, then supposed him to be interested. But it is not apparent how her supposed interest of Lang in the estate can change or alter the effect of his deed.

These views render it unnecessary to consider the question raised under the Statute of Limitations.

The decree should be affirmed, with costs.

All concurred.

Decree of the surrogate of Erie county appealed from affirmed,

with costs.

FIFTH DEPARTMENT, MARCH TERM, 1893.

AUBURN BUTTON COMPANY, Appellant, v. PHILIP L. SYLVESTER, Respondent, Impleaded, etc.

Appeals by corporations, after judgment of sequestration and the appointment of a

permanent receiver.

The entry of a judgment of sequestration against a corporation, obtained as provided by the Code of Civil Procedure (section 1784 et seq.), and the appointment of a permanent receiver, do not deprive the corporation of power thereafter to take and prosecute appeals from judgments recovered against it.

MOTION by the respondent, Philip L. Sylvester, made pursuant to an order to show cause, to dismiss the appeal of the plaintiff, the Auburn Button Company, from a judgment of the Supreme Court against the plaintiff, entered in the office of the clerk of Cayuga county on the 22d day of December, 1892, upon the decision of the court rendered on a trial at the Cayuga Special Term.

W. E. Hughitt, for the appellant.

E. C. Aiken, for the respondent.

HAIGHT, J.:

The judgment herein against the plaintiff for ninety dollars and seventy-eight cents was entered upon a decision of the Cayuga Special Term on the 22d day of December, 1892. On the 3d day of January, 1893, an appeal therefrom was taken to this court. On the 21st day of December, 1892, a judgment of sequestration was entered in another action against the plaintiff in this action, and Daniel L. Hurlburt was appointed permanent receiver, with the usual powers and duties and vested with all of the rights and powers of receivers in like cases.

It is now claimed that by the judgment of sequestration the plaintiff ceased to exist as a corporation, and consequently cannot bring this appeal.

It is true that by the judgment of sequestration the property, things in action and effects of the corporation are vested in the receiver, with power to sell and dispose of the same and pay the debts, but we do not understand that it absolutely dissolves the corporation. (Mann v. Pentz, 3 N. Y. 415, 419.)

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AUBURN BUTTON CO. v. SYLVESTER.
FIFTH DEPARTMENT, MARCH TERM, 1893.

The property and effects vest in the receiver, and he only can maintain actions to recover amounts owing to the company. Creditors of the corporation may still prosecute their claims against it to judgment, and the corporation may defend itself against such

claims.

In the case of Kincaid v. Dwinelle (59 N. Y. 548), it was held that a corporation, which has been enjoined from the exercise of its corporate franchises and deprived of its property, and has thus ceased to exist for all practical purposes, is not thereby actually dissolved. It cannot be dissolved save by the judgment of a court of competent jurisdiction. Until such judgment is rendered creditors may proceed by suit against it, unless restrained by injunction. And to the same effect are the cases of Pringle v. Woolworth (90 N. Y. 502, 510) and Parry v. The American Opera Company (12 N. Y. Civ. Pro. Rep. 194).

It is claimed that the case of Hollingshead v. Woodward (107 N. Y. 96) is in conflict. We are, however, satisfied, from a careful reading of the opinion, that it was not the intention of the court to overrule or abandon the doctrine promulgated in the former cases. The case itself is clearly distinguishable. And so is that of Decker v. Gardner (124 Ν. Υ. 334).

It appears to us that these views are in harmony with the provisions of the Code of Civil Procedure. Section 1784 provides for the cases in which an action to procure a judgment of sequestration may be brought. Section 1785 specifies the cases in which an action to dissolve a corporation may be maintained. Section 1787 provides that in an action brought as prescribed in the article, which is either that of sequestration or for a dissolution, the court may grant an injunction restraining the corporation and its trustees, directors, managers and officers from collecting or receiving any debt or demand, and from paying out, or in any way transferring or delivering to any person any money, or property, or effects of the corporation during the pendency of the action, except by express permission of the court. And "Where the action is brought to procure the dissolution of the corporation, the injunction may also restrain the corporation and its trustees, directors, managers and other officers from exercising any of its corporate rights, privileges or franchises," etc.

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