Chapter 225 of the Laws of 1925 directs the Superintendent of Insurance to transfer to the State Comptroller funds in his hands from “ old receiverships of defunct insurance companies.” The Court of Claims was given sole jurisdiction to determine claims to these funds. The Atlantic Insurance Company was formed by a special act of the Legislature (Laws of 1824, *320chap. 59). It soon had financial difficulties. Chapter 223 of the Laws of 1828 gave authority, in the alternative, to discontinue or, by new subscriptions to the capital stock, to reorganize and continue business. Distribution, if made, was to be under the direction of the chancellor or circuit judge, acting through “ commissioners.” An account was presented to the chancellor in 1832 and again in 1834, and partial distributions were directed. In 1862 the Supreme Court appointed a trustee and receiver of the undistributed balance, and to take the proceeds of a claim which had been pending against a foreign government for many years. After the death of that trustee and receiver, the fund involved in this proceeding was, in 1921, ordered by the Supreme Court to be deposited with the State Superintendent of Insurance. In 1924 the claimant herein was appointed by the court. The order making such appointment recited as authority the act of 1828. It continued the Superintendent of Insurance as a depository of the fund. The Superintendent determined that the 1925 statute first mentioned herein required the payment of the moneys in this proceeding to the Comptroller, and acted accordingly. The claim by the trustee for the fund was rejected by the Court of Claims, and this appeal taken. The judgment should be reversed.
Supervision over and authority to handle the funds of this insurance company were given to the predecessor of the Supreme Court by the act of 1828. This is an unexecuted trust, and upon the death of the trustee the trust estate “ vests in the Supreme Court and' shall be executed by some person appointed by the court, whom the court may invest with all or any of the powers and duties of the original trustee or trustees.” (Pers. Prop. Law, § 20, as amd. by Laws of 1911, chap. 217.) This claimant trustee was a “ person ” within the meaning of the 1925 statute. (Republic of Honduras v. Soto, 112 N. Y. 310; Sultan of Turkey v. Tiryakian, 213 id. 429.) This act authorizes claims to be made by those “entitled” to any of the funds. “Entitled” fittingly describes the relation of the Supreme Court to this fund. (Bigelow v. Percival, 162 App. Div. 831; 20 C. J. 1272.) This fund vested in the Supreme Court for the purposes of handling and distribution, both by the old special act of 1828, and the above-quoted section of the Personal Property Law, the last directing that the trust “ shall be executed by some person appointed by the court.” In order to execute a trust there must be distribution among those entitled, after payment of fees and expenses of the trustee, his agents and attorneys.
The judgment should be reversed on the law, with costs, and judgment directed, with costs, that the fund now deposited with *321•the State Comptroller to the credit of the Atlantic Insurance Company is vested in the Supreme Court and in its trustee, Frank P. Walsh, to be transferred and distributed under the order of that court.
Van Kirk, P. J., Hinman and Whitmyer, JJ., concur; Hasbrouck, J., dissents with an opinion.