101 N.Y.S. 340 | N.Y. App. Div. | 1906
This action is brought by plaintiff as substituted trustee in place of John M. Pendleton, deceased, against the latter’s executrix to obtain an accounting for certain sums for which, as it is claimed, the deceased trustee was properly accountable. The trust of which John M. Pendleton was formerly, and plaintiff now is trustee, was created by the 3d clause of the will of William S. Pendleton, deceased, whereby á sum of money was given to the testator’s executors (of whom John M. Pendleton alone qualified) to invest and hold during the lifetime of George E. Pendleton, paying the income to him, and at his death to pay the principal sum over to his lawful issue, with a provision that in default of such issue the principal ■ sum should fall into the residuary estate. John M. Pendleton, the executor trustee, having died, the plaintiff was substituted as trustee in his place by order of this court, and instituted this action. An interlocutory judgment was obtained, which, however, was reversed and a new trial ordered. (179 N. Y. 486.) Pending the appeal George B. Pendleton, the cestui que trust, died, and defendant, under leave of the court, interposed a supplemental answer setting forth the fact of George B. Pendleton’s death; that he left no lawful issue and that under the will of William S. Pendleton, deceased, the principal of the trust fund thereupon fell into the residuary-estate in which plaintiff has no interest, but that defendant, being a legatee of John M. Pendleton, deceased, one of William S. Pendleton’s residuary ' legatees, is entitled to a portion of said residuary estate and does not wish this action to be further prosecuted. When the cause came on for a retrial, and all the evidence had been taken, the court of its own motion, without any motion on the part of either party, and without any substitution of parties, and without any .objection from either party as to the court’s jurisdiction, entered the order appealed from which declared that the action could not proceed unless it be revived by- the legal representative of the cestui que trust, George B. Pendleton, deceased, and restored the cause to the
It follows that the order must be reversed, without costs to either party, leaving the action to be disposed of in the court below.
Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.
Order reversed, without costs. Order filed.