Aaron Kahn, Appellant, v. The Brooklyn Trust Company, Respondent

Aaron Kahn, Appellant, v. The Brooklyn Trust Company, Respondent. Trust — established for the benefit of a contestant of a will, under a compromise — right of an attorney under an agreement by the contestant to gire the attorney one-half of what might be recovered. Antoinette Scliermerhorn, who was an heir at law and next of kin of Francis W. Lasak, who died leaving a will substantially disinheriting her, entered into an agreement with one Kahn by which Kahn agreed to render legal services in the contest of the will for which he was to receive as compensation one-half of whatever he might obtain for his client. A compromise was finally made under which three of the devisees under the will each contributed one-third of a trust fund of §50,000, which was paid to the Brooklyn Trust Company upon the trust that the income thereof should be paid to Antoinette Scliermerhorn during her life, and that upon her decease the principal should revert to the contributors. Certain interest having accumulated upon this fund, Kahn brought an action against the Brooklyn Trust Company to recover one-half of this interest. Held, that the action could not be maintained ; That no relation of debtor and creditor existed between the plaintiff and the defendant, and that no action at law would lie by the plaintiff. Appeal by tlie plaintiff, Aaron Kahn, from a judgment of the County Court of Kings County in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of February, 1896, upon the decision of the court rendered upon an appeal from a judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 4th day of February, 1896, reversing the said judgment. Action Kahn, appellant, in person. E. H. Benn, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : One Mrs. Antoinette Schermerhorn was an heir at law and next of kin of Francis W Laask, who died in February, 1889, leaving a will substantially disinheriting her. The plaintiff, a lawyer, and Mrs. Schermerhorn entered into an agreement for the contest of the will, whereby the plaintiff was to render services in such actions and legal proceedings as might be necessary, and receive as compensation one-half of whatever he might obtain for his client. There was much and long litigation over the will. Finally a compromise was made, by which it was agreed that three of the devisees under the will should each contribute one-third of a trust fund of $50,000, the income of which was to be paid to Mrs. Schermerhorn during her life, and on her decease the principal to revert to the three contributors. This agreement was carried out, and the fund was paid to the defendant upon the trust specified, together with $468 interest, accumulated on the fund during the interval between the execution of the agreement and the time of the deposit. The plaintiff sued the defendant for- one-half of this accumulated interest, $234. He recovered before the justice, but the County Court reversed the judgment. One question of law is sufficient to dispose of this appeal. The plaintiff never had any title to the moneys deposited with the defendant, and no relation of debtor and creditor existed between the defendant and the plaintiff. Therefore, no action at law could be maintained. The moneys proceeded from the three contributors, and were deposited upon a specified trust, under which the plaintiff was not a beneficiary. Even as to the beneficiary, all she took was a right to the performance of the trust in equity. It is not possible that her assignee (assuming what is probably not the law, that the assignment is valid) can have any greater rights than the beneficiary has. The judgment appealed from should be affirmed, with costs. All concurred. Judgment affirmed, with costs.