App. Div.]

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

viously assigned as security for loans made by such creditors, and which had been unlawfully collected by the corporation, and that, hence, they do not constitute a preference within the prohibition of section 48 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688). The effect of such a view would be to give special favor to a claim growing out of the wrongful appropriation of the accounts by the corporation, and to permit such creditors to surrender an additional remedy in tort against the officers of the corporation in exchange for property of the corporation transferred to them to the exclusion of the other creditors.

Nor can such assignments be supported on the ground that, although their actual execution was deferred until after insolvency, they were made to secure money advanced upon the strength of them, where there was no agreement between the parties to substitute other accounts for accounts collected by the corporation, but, on the contrary, the agreement signed by the corporation contained a special agreement to turn over the proceeds of any assigned accounts collected by it to the assignees.

APPEAL by the defendants, Morris L. Ernst and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 2d day of June, 1898, upon the report of a referee.

A. J. Dittenhoefer, for the appellants.

Charles F. Brown, for the respondent.

Judgment affirmed, with costs, on opinion of referee.

All concurred.

The following is the opinion of the referee: WILLIAM, VANAMEE, Referee :

This action is brought by the receiver of a stock corporation to compel the defendants, who are creditors of the corporation, to account to him, for the benefit of all the creditors, for the property of the corporation transferred to the defendants by an act of preference prohibited by the statute. Section 48 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688) forbids and invalidates the transfer of any property of such a corporation when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation. While it will always seem hard to an individual creditor to be required to restore

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38. property which he has, either by favor or by diligence, secured from an insolvent corporation for the purpose of applying it upon a just debt, still this is the very result which it is the design of the statute to accomplish. The statute constitutes an assurance to all who deal with the corporation that in case it becomes insolvent no creditor will be permitted to acquire a preference over other creditors in the distribution of its assets. It distinctly notifies all the creditors that diligence will not be rewarded nor favor ratified. In these circumstances, it would be grossly unfair to allow one creditor to retain the property of an insolvent corporation acquired in disregard of the statute, which another might equally have secured if he had not regarded, and had not been warned off by the statute. The courts will not hesitate to enforce the restitution provided for by the statute, whenever the facts clearly fall within its terms.

In this case the insolvency of the Kilmer Manufacturing Company as early as October 10, 1895, and at the time of all the assignments made in that month, is established by the evidence.

The intent by the officers of the corporation to give to the defendants a preference in making these assignments is entirely clear. They were fully advised of the desperate condition of the affairs of the company and had consulted with counsel in relation to the necessity of obtaining the appointment of a receiver. Schedules and inventories were in course of preparation at the time the assignments were made, and the officers of the corporation were complaining that their counsel was too slow in securing the appointment of a receiver. This delay, due to the magnitude of the labor involved, alone made these assignments possible. The receivers were appointed October 22, 1895, three days after the last assignments to the defendants.

The assignments were of accounts of the corporation against its customers for goods sold to them. Similar assignments had been taken by the defendants from the company extending over a peried of several months, as security for loans made by the defendants. In every instance, except at the time of the last two assignments, notes were given by the company to represent the indebtedness. The defendants, therefore, occupied the position of creditors of the company.

Upon the 10th day of October, 1895, the defendants advanced to

App. Div.]

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

the company the sum of $1,800, taking as security an assignment of accounts upon which they have realized the sum of $2,130.23, leaving a balance in their hands of $330.23, which does not represent any consideration advanced at the time of the assignment.

This balance and the amounts collected under the assignments of October sixteenth and October nineteenth, when no advances whatever were made, the defendants seek to apply upon the indebtedness growing out of the collection and conversion by the Kilmer Manufacturing Company of an account against the New Haven Wire Manufacturing Company assigned by the Kilmer Company to the defendants.

Upon the 10th day of October, 1895, the Kilmer Company assigned to the defendants an account against the New Haven Wire Company of $8,488.96. Upon the same day the agent of the Kilmer Company collected of the New Haven Company $5,000 of this account. Upon ascertaining this the defendants applied to the Kilmer Company for other security and the assignments of October sixteenth and October nineteenth were of other accounts in response to this application.

The defendants justify these assignments and assert their right to hold the fruits of them upon the ground that as they were made to take the place of accounts that had been previously assigned as security for loans, and which had been unlawfully collected by the company, such assignments do not constitute a preference within the meaning of the statute; that they were simply a carrying out of the original agreement to furnish security for the loans.

It is difficult to see how the application of the statute can be avoided upon this ground. It would apply just as well to a preference made to secure any other ordinary debt, for that also would simply be the carrying out of the original agreement to pay the debt. Besides, the debt which it was sought, under these assignments to secure, assumes a new form. It becomes a claim founded in tort admitting of an election of remedies. There certainly was no original agreement as to how the results of the tortious act should be dealt with. The defendants found themselves with a new remedy against the officers of the corporation which gave them certain advantages over other creditors. The whole effect of the argument APP. DIV.-VOL. XXXVIII.

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[Vol. 38. for the defendants is that a creditor may voluntarily surrender any additional remedy against the officers of an insolvent corporation in exchange for the property of the corporation transferred to the particular creditor to the exclusion of the creditors at large.

It is one of the wholesome results of the statute that the officers of an insolvent corporation shall not be permitted to purchase immunity for themselves by transferring the property of the corporation to a creditor who might otherwise pursue them individually.

The point urged by the defendants, that a security will be sustained if given after insolvency in cases in which money was advanced upon the strength of it, though its actual execution was deferred, has no application to the facts of this case. There was no agreement between the parties to substitute other accounts for accounts collected by the company. On the contrary, the agreements signed by the Kilmer Company contained a special agreement to turn over any assigned accounts collected by them to the defendants forthwith.

It was this obligation which the Kilmer Company violated, and it was to prefer the debt thus created that the assignments of October sixteenth and nineteenth were given. The defect in the argument of the defendants is that it seems to regard as possessing peculiar sacredness and entitled to special favor a claim growing out of a wrongful act. The statute makes no such distinction. So far as the other creditors were concerned it was still a simple debt. Whether we regard the debt as a recent one growing out of the tortious act, or whether we regard the assignments as a substituted security upon the original debt, in either case the transfer of the corporation property after the insolvency of the corporation falls within. the prohibition of the statute.

The amount collected by the defendants under the invalid assignments of October sixteenth is $497.04, and under that of October nineteenth $785.97, making, with the amount of $330.23, before referred to, $1,613.24. The defendants are entitled to a credit for $155.04, due to them from the plaintiff as receiver, making the amount which the plaintiff is entitled to recover from the defendants the sum of $1,458.20, with interest from the commencement of the action.

CHARLES T. DUNCKLEE, as Executor and Trustee of the Estate of JOHN G. BUTLER, Deceased, Respondent, v. FRANCELLA BUTLER and Others, Appellants, Impleaded with J. ARTHUR BUTLER.

A testator by the 3d clause of his will gave to his executor the sum of $25,000, in trust, to pay the income thereof to the testator's wife during her life, said sum, upon her decease, to become a part of the residuary estate, and to be disposed of under the 4th article of the will. By the 4th article the testator gave to his executor all the residue of his estate, real and personal, in trust, to divide the same into four equal parts, and apply so much of the income thereof as might be necessary to the support and education of the testator's four children (three daughters and a son) during their minority, but with this proviso, that as soon as each of his daughters "shall arrive at the age of twenty-one years, said trustee shall pay over to such one so arriving at the age of twentyone years the net income semi-annually thereafter of one of said equal fourth parts of my said estate during her life, and upon her death shall pay over the principal thereof to her issue, if any; but if she shall die leaving no issue living at the time of her death, then said one-fourth part of my estate shall be added to the portions of my estate held in trust for the benefit of my other children then living, an equal amount thereof to each portion. Should any of my said children die before arriving at the age of twenty-one years, said residue shall be held in trust as aforesaid for the benefit of the survivors of them and administered as above provided, only the number of parts into which said residue shall be divided shall be equal to the number of children then living. "When my son, John G. Butler, Junior, shall be twenty-one years of age, said trustee shall pay to him, out of one of the portions of said residue of my estate,