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Berney v. Drexel, 33 Hun, 34.

trivance of the said Messier de St. James and James Berney, and 6 thereupon granted probate of said will and codicil, and issued letters testamentary thereupon to the said James Berney.

And the plaintiffs further show that, acting under the said illegal and invalid letters testamentary, and in pursuance of the said arrangement previously contrived by the said Messier de St. James, the said James Berney sent to him, the said St. James, a power of attorney purporting to empower him to sell any property belonging to the estate. That said power of attorney was execu ted by the said James Berney in the city of New York, only four

7 days after the said will was offered for and admitted to probate, and letters testamentary issued by the Probate Court of Montgomery county, Alabama.

And the plaintiffs show that the said St. James, acting under the said pretended power of attorney, authorized Cazade, Crooks & Reynaud, of the city of New York, to take all the necessary steps to cause the Secretary of the Treasury of the United States to transfer to bearer, or alter from nominal bonds and scrips into bonds and scrip payable to bearer, certain bonds and scrips of the United States funded loan of 1881, standing registered on 8 the books of the Treasury Department in the name of said Robert Berney, and which formed part of his estate at the time of his death. That said bonds were twenty-two in number, and of the par value in the aggregate) of $200,000, four of said bonds, numbered respectively. [llere followed the numbers and denominations).

That said bonds at the time of the death of Robert Berney were in his possession in the city of Paris, but that after his death the said Messier de St. James in some way acquired pos- 9 session of said bonds in said city of Paris and transmitted the same, with the said illegal and invalid power of attorney, to the said Cazade, Crooks & Reynaud, who, acting under said power, on or about the 22d day of June, 1875, assumed to sell and deliver the said bonds to the defendants, trading in the city of New York under the firm of Drexel, Morgan & Co. That said sale was without the written or other consent of the testator's widow, Louise Berney, and without her knowledge.

That all the particular legacies given by said will had been

Berney v. Drexel, 33 Hun, 34.

10 paid prior to such sale, and the sale was not necessary to carry

out any of the provisions of the will, nor were the proceeds of sale applied to any such purpose, but the same were misappropriated by the said St. James to his own use.

And the plaintiffs are informed and believe that by the said will and codicil, and the several powers of attorney hereinbefore mentioned (copies of which are annexed), marked, respectively, Exhibits A and B, the said defendants had legal notice of the limitations on the power of sale, and of the illegal and invalid

character of the title to said bonds assigned by said Cazade, 11 Crooks & Reynaud.

The plaintiffs further show that the defendants had converted the said bonds to their own use, and that the same were of the value of two hundred and sixty thousand dollars.

WHEREFORE, the plaintiffs demand judgment against the defendants, and each of them, for the sum of two hundred and sixty thousand dollars, with interest from the twenty-second day of June, 1875, besides the costs of this action, which is to be tried

in New York county. 12

Defendants demurred on the following grounds:

1. That the plaintiffs have not legal capacity to sue, for that they are not the executors or trustees of the will of Robert Berney in the complaint mentioned, and have at no time acquired by or from said executors or trustees, by assignment or otherwise, any right to or ownership of the United States bonds in the complaint mentioned, and also for that, by the terms of said will, annuities were given to one Eliza Ozier, the plaintiff, Louise

Berney, and a certain countess of Perregaux, during their re13

spective lives, and his estate charged with the payment thereof, and it does not appear that the said annuities have been satisfied.

2. That there is a defect of parties defendant in that James Berney and the said Eliza Ozier and Countess of Perregaux are not made parties defendant.

3. That the complaint does not state facts sufficient to constitute a cause of action.

The Supreme Court at Special Term, (MACOMBER, J.) overruled the demurrer. After recapitulating the contents of the

Berney v. Drexel, 33 Hun, 34.

complaint, concluding with the fact that the sale of the bonds 14 was unnecessary and contrary to the will, the learned judge said :

From all these facts so specifically alleged, together with the exhibits which are attached to and made part of the complaint, it is apparent, as has already been stated, that the action is simply in trover to recover damages for the conversion of personal property. All other allegations are matters of evidence, except those which are irrelevant. The analysis of the complaint, though disclosing much that could properly be omitted in a common law action, shows that all the essential parts of a

15 declaration in trover have been complied with by the plaintiffs. There is a distinct allegation that by the French law “the title to all the personal property of which the testator was possessed at the time of his decease vested immediately thereafter in the plaintiffs ” and in those to whose rights the plaintiffs have succeeded. This is not an allegation of law; it is an allegation of fact. It is an issue of fact tendered by the plaintiffs to the defendants, and the truth of it is admited by the defendants in their demurrer. A general averment of ownership in the complaint is sufficient. (Heine r. Anderson, 2 Duer, 318.) 16

The further objection is made by the defendants' counsel thač no demand has been made upon the defendants for the possession of the bonds. No demand, in my judgment, need be alleged, where there is an allegation of an actual conversion of personal property. A demand and a refusal may be proper evidence of a conversion in a case where the original possession of the defendants was lawful ; here the original taking constituted a conversion, and no demand is necessary. The allegation “converted to their own use” would, as it seems to me, be proper and suitable alike

17 in the case of an original wrongful taking, and in a case of wrongful withholding of personal property. (Pease v. Smith, 61 N. Y., 477; Cormier v. Batty, 9 J. & S., 70; Farmers' and Traders' Bank v. Farmers and Mechanics' Bank, 60 N. Y., 40.)

The Supreme Court at General Term affirmed the judgment.

Davis, P. J. The questions presented by the demurrer depend wholly upon the sufficiency of certain allegations in the complaint.

After setting forth the will and codicil of Robert Berney,

Berney v. Drexel, 33 Hun, 34.


18 which appears to have been made and published in England,

while he was domiciled and residing in Paris, the complaint avers that the said Robert Berney departed this life on the 19th of November, 1874, at Paris, and, in substance, that at the time of his death the domicile of the testator was at Paris, France, and that he left him surviving the plaintiff, Louise Berney, who is the widow of said Berney, and the several other plaintiffs, who are his sole surviving nephews and nieces, and who are all of the age of twenty-five years and upwards. The complaint

then avers that “under and by virtue of the laws of France, 19

where the testator had his domicile, the title to all the personal property of which said testator was possessed at the time of his decease vested immediately thereafter in the plaintiffs other than the widow

the residuary legatees named in said will, their title being subject, however, to the payment of the particular legacies by said will bequeathed, and of the annuities therein given.”

The first question presented is whether this averment is a sufficient allegation of ownership to entitle the plaintiffs to 20 maintain an action to recover for the conversion of a portion of

the personal property of which the testator was possessed at the time of his death. The Special Term held that it was sufficient upon demurrer, and we are of opinion that that conclusion is correct.

It is necessary in an action to recover for conversion that the plaintiff should show by his complaint title to the property alleged to be converted, or his right to the possession thereof. Either of these is sufficient to entitle him to maintain the action.

In this case the averment is of title under and by virtue of the 21

laws of France. This, it is alleged, is an allegation of a legal proposition or conclusion, and not of a fact. We are of opinion, however, that it is an allegation of fact, under which, at the trial of the issue, the plaintiffs would be at liberty to prove the laws of France, for the purpose of establishing the fact that the title to the personal property vested immediately upon the decease of the testator in them; and, on that fact being so proved, the legal result would be that such title would draw to it the right of possession and show full authority to maintain the

Berney v. Drexel, 33 Hun, 34.

action. The title would presumptively draw to it the right of 22 possession, and show the right to maintain an action against an alleged wrongdoer.

The complaint proceeds, then, to allege facts showing that one James Berney had fraudulently obtained possession of the property in question by virtue of letters testamentary procured in the court of another state having no jurisdiction, and that, having such fraudulent possession, through his attorneys has sold and transferred certain bonds the property to the defendants. Having thus carried the property into the possession of the

23 defendants, the complaint alleges that, by the will and codicil and the several powers of attorney, copies of which are annexed to the complaint, the said defendants had legal notice of the limitations on the power of sale and of the illegal and invalid character of the title of said bonds assigned to them; and they further allege that the defendants have converted the said bonds to their own use. What force is to be given to the allegations of notice, in the form in which it is averred, it is not necessary to determine. That averment probably presents a question of law, inasmuch as it is substantially an allegation that the will 24 and codicil and the several powers of attorney contained in themselves “ legal notice of the illegality and invalidity of the title of the defendants' assignor to the said bonds assigned.” The Special Term considered that the sufficiency of the allegation of conversion depended wholly upon the averment that “the defendants have converted the said bonds to their own use."

Assuming it to be :correct proposition that the allegations of the complaint are not sufficient to show that the bonds came into the possession of the defendants with any notice or knowledge of the want of title in their assignor, so that upon such allegations alone an action for the conversion could not be maintained without proof of a demand before bringing the action, nevertheless, if such allegations were followed with the sufficient averment of conversion to entitle the plaintiff to put in evidence facts showing an actual conversion, that would be sufficient upon demurrer to uphold the complaint. The allegation of conversion to their own use is one of fact. It will admit, upon a trial, of evidence that the defendants not only received the bonds under the


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