This is a demurrer by the defendants to the complaint of the plaintiffs. Three grounds of demurrer are stated, namely:
First. That the plaintiffs have not legal capacity to sue.
Second. That there is a defect of parties defendant.
Third. That the complaint does not state facts sufficient to constitute a cause of action.
The action is trover for the conversion of bonds of the United States of the value of $200,000. In such an action the allegation of ownership of personal property in the plaintiffs and the conversion of it by the defendants, coupled with actual damage, constitute a good cause of action. The only question I shall consider is whether or not there are allegations in the complaint which, separated from other irrelevant
The plaintiffs base their recovery of damages for the conversion of the bonds upon a title derived from Robert Berney, who, being domiciled in France, died in Paris, November 19, 1874, having theretofore and on November 2,1864, at Croydon, in England, made his last will and testament, and subsequently and on September 25, 1874, having made a codicil thereto. The will and codicil are set forth in the complaint. By the sixth, tenth and eleventh clauses of the will all the estate of the testator, after providing for two annuities, one of $3,000 to Eliza Ozier and another of 2,000 francs to the Countess de Per Perregent, is given to five trustees for the following purposes: 1st. To pay an annuity of 30,000 francs to his widow, to be reduced to 5,000 in case of her remarriage. 2d. To apply any surplus income, after providing for all annuities (after making good any deficiencies in said annuities for previous years), to creating a contingent fund, to be accumulated for twenty-one years, the annual appropriation to such fund not, however, to exceed 12,500 francs per annum. 3d. To distribute any remaining surplus among the residuary legatees upon the death of the widow. Certain legacies were by the thirteenth and fourteenth clauses of the will given to two nephews, and then the whole residuary estate was to be distributed among the children of the testator’s brother, James Berney, and his two sisters, Philippa Seibels and Sophia Hallenguist, who should be living at the testator’s death, to be paid to them personally, if of twenty-five years of age, otherwise to their parents or guardians. The codicil made some changes in the provisions of the will. Different trustees were appointed and two legacies were given, one of $50,000 to his brother, James Berney, and another of $20,000 to his sister, Philippa Seibels.
The plaintiffs are the widow of the testator and all the children of James Berney, Philippa Siebels and Sophia Hallenguist, who were living at the time of the testator’s decease,
It is also alleged that the shares of the said John Berney and James Berney, Jr., vested immediately upon their decease in their surviving brothers and sisters, who are plaintiffs.
The will and codicil were admitted to probate in the probate court of Montgomery county, state of Alabama, and letters testamentary were issued thereon to the said James Berney, and it is alleged that this was done by collusion between Messier de St. James and James Berney; that the testator had never been domiciled in Alabama and had left no property there, and that the court of probate of Montgomery county did not acquire jurisdiction of the subject-matter.
It further appears that James Berney, acting under such illegal letters testamentary, gave a power of attorney to Messier de St. James, authorizing him to “sell any property belonging to the estate ;” that Messier de St. James in turn authorized Cazade, Crooks & Beynand, of the city of Flew York, to convert certain United States bonds, amounting, at par, to $200,000, which stood in the testator’s name, into bonds payable to bearer, and that the said firm thereupon sold and delivered them to the defendants, and that the defendants have converted such bonds to their own use.
It further appears by the complaint that all the particular legacies have been paid, and that such .sale of bonds was not necessary to carry out any of the provisions of the will, and that the sale to the defendants was without the knowledge or consent of the widow; contrary to the ninth clause of the
From all of these facts, so specifically alleged, together with the exhibits which are attached to and made a 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 allegation's 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 declaration in trover have been complied with by the plaintiffs. There is the 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 plaintiff,” 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 admitted by the defendants in their demurrer. A general averment of ownership in the complaint is sufficient (Heine agt. Anderson, 2 Duer, 318).
The further objection is made by the defendant’s counsel that no demand has been made upon the defendants for the possession of the bonds. Ho 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; but where the original possession was unlawful, the original taking constitutes 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 in the case of an original wrongful taking and in a case of wrongful withholding of personal property (Pease agt. Smith, 61 N. Y., 477; Cormier agt. Batty, 9 J. & S., 70; Farmers and Traders’ Bank agt. Farmers and Mechanics’ Bank, 60 N. Y., 40).
Judgment must be ordered for the plaintiffs upon demurrer, under the terms mentioned in my decision.