141 N.Y.S. 470 | N.Y. App. Div. | 1913
This appeal is from a decree of a Surrogate’s Court that directs a distribution of income received and to be received on the principal of the estate of Phebe H. Robinson-, deceased. After a devise of certain realty, the testator gave her estate to her executors in trust during their lives and that of the survivor to apply the rents, issues and profits to the use of her two children and a grandchild respectively, to be paid quarterly, The letters testamentary were issued on October 11, 1910. On October 10, 1911, the executors filed an account in the office of the surrogate, with petition for judicial settlement. Two of the beneficiaries appeared and asked to examine the executors in order to determine the question of objections. One of the executors was examined and several hearings were had, but before any objections were filed and before any decree was •made two of the said beneficiaries brought an action in the Supreme Court against the executors, wherein they demanded judgment inter alia that the said defendants be removed as trustees, that they turn over all moneys in their hands as' executors and trustees to a receiver to be appointed, that they account as executors or trustees, and that said defendants be enjoined pendente lite from proceeding with the accounting in the said Surrogate’s Court. The plaintiffs in the action in the Supreme Court obtained an injunction pendente lite which restrained the defendants from taking further proceedings in the accounting then pending in the Surrogate’s Court until the final determination of the action. . The surrogate upon application of the said beneficiaries had theretofore made a decree directing distribution of income shown in the account, which was obeyed. 1
The contention of the respondent rests upon the. fact that the injunction order in the Supreme Court provides as follows: “ This injunction does not prevent the said executors, and trustees from receiving and disbursing the income from the estate of the said Phebe H. Robinson as provided in said will.” The learned counsel for the respondent contends that this proceeding is properly brought, either under, subdivision 2 of section 2722, or under sections 2804 and 2805 of the Code of Civil Procedure. I shall consider first the said sections 2804 and 2805. (See Matter of Hunt, 110 App. Div. 533.) Section 2804 prescribes the presentation of a petition praying for a decree and for a citation to the testamentary trustee to show cause why a decree should not be made. Such citation must follow in course. Section 2805 prescribes upon the return of the citation if the testamentary trustee files a written answer, duly verified, Setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal and denying its validity or legality absolutely, or upon his information and belief, a decree must be made dismissing the petition without prejudice to an action on behalf of the petitioner for an accounting, otherwise the surrogate must hear the allegations and proofs of the parties and must make such a decree in the premises as justice requires. I - think it clear beyond discussion that these provisions do not contemplate a proceeding in the nature of an accounting, else there would be no provision in section 2805 as to an accounting. Moreover, section 2803' provides for an intermediate account at any time, so that it is not likely that the provisions of the section immediately following should contain a repetition of remedies. I think that the answer filed in this case shows sufficient facts within the requirements of section 2805 to show that the validity and legality of the claim is doubtful. The contention in brief is that the appellants had paid all income up to and including April 10, 1912; that from April 10,1912, until July 10, 1912, they had collected $7,553.10; that up to that time, they had paid out the following expenses
Inasmuch as the petition asks for general relief it would have been in the power of the surrogate to have ordered an immediate accounting under section 2803 of the Code of Civil Procedure (Matter of Odell, 52 Hun, 88, per Bartlett, J.), but for the fact that the petitioner has enjoined that accounting by her affirmative action in the Supreme Court. I’ think that my discussion of sections 2804 and 2805, is germane to the provisions of section 2722 invoked by the petitioner. (See Jessup Surr. Pr. [4th ed.] 1052.)
The decree must be reversed, with costs to the appellants payable out of the estate,
Hirschberg, Burr and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Dutchess county reversed, with costs to the appellants payable out of the estate.