156 N.Y.S. 588 | N.Y. Sur. Ct. | 1915
The petitioner presents releases by virtue of which he claims to be relieved from the duty of accounting to the beneficiaries of his several trusts.
. The jurisdiction of this court to consider equitable defenses to these releases is within the text of the statute. It is provided by section 2510 of the C'ode of Civil Procedure that the surrogate may determine all questions, legal or equitable, “ arising between any and all of the parties * * * as to -any and
all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.”
This court will not discuss the constitutionality of this enactment. While it is within the power, and sometimes within the duty, of a court sitting in the first instance to entertain a constitutional question, it is a rule of practical force, though resting only in judicial convenience and policy, that such questions
The views of Mr. Surrogate Fowxer upon this subject must be adopted. In Matter of Thornburgh (72 Misc. Rep. 619) he says: “ But the transcendent power of declaring an act of the legislature unconstitutional should never, in my opinion, be assumed by a court of first instance, except possibly in rare cases involving life or liberty, and where the invalidity of the legislative act is apparent on its face. The exercise of a judicial power to declare acts of the legislature void should, I think, be reserved to the graver courts of the state, in solemn session in Vane, or held for the final review of such great questions. Otherwise the processes of the government may be disorganized by the action of a single judicial officer possessed of a little brief authority. Such an individual exercise of power tends to bring into contempt with the people an historic jurisdiction, approved by the wisdom of the greatest of mankind —a jurisdiction of fundamental importance to constitutional government when well exercised, and of most evil import when lightly exercised by a single judge animated, perhaps, by some theory squaring with his own conceptions of government or polity. Doubtless the ultimate power to test the validity of legislative enactments by a solemn comparison with delegated constitutional powers is of supreme importance and the keystone of our political fabric. But the uower and the exercise of the power are distinct.
“ It is well known that the power of the American judiciary to guard the citizen against legislative violation of delegated authority to enact laws is not original or a novelty in government, as often asserted. Eor is it a mere phenomenon or experiment. On the contrary, it is the result of political experience of long duration. In England a similar assertion of judicial power just missed a triumph. Lord Coke, in Dr. Bonham’s case (8 Rep. 118a) cited several ancient cases in support of the inherent judicial power to pass on the validity of an act of Parlia
The reasoning which forbids adjudication by this court- must with greater force restrain it from mere declamation, for if considerations of modesty and deference would be offended by decision, they would be violated by a discussion which could have no decretal end.
Hence, the- jurisdiction which the statute confers must be loyally assumed.
The releases and other instruments asserted by the accountant must be disregarded.
Probably upon merely legal grounds they are without present effect.
The petitioner first files accounts in each of the four relations
After objections to these accounts are filed, without permission to amend, he files statements, drawn and verified in the form of accounts, which are made in his behalf as trustee and as administrator with the will annexed, alleging that no assets have come into his hands, and others as guardian, emphasizing his claim of release, and annexing copies of the instruments upon which he relies.
In Matter of Lyth (32 Misc. Rep. 608) Mr. Justice Mascus, then surrogate, held that executors, who had petitioned for the final settlement of their accounts, and cited all parties interested to appear upon the return day, could not be heard to interpose the Statute of Limitations after the appearance of parties and the filing of objections.
There is nothing said in the case cited as to the right of the executors to interpose the bar. of the statute which does not apply in this case to- the plea of release.
But if the releases, and other instruments, be subjected to equitable scrutiny they must be avoided upon obvious grounds. Any claim that as to either of the respondents there was a ratification of any release must fail in the face of evidence, accepted by the court, that at the time when it is said that either of the beneficiaries acquiesced in a release previously made by him, the person concerned was without knowledge of the facts material to the act of ratification.
It becomes necessary to determine in which of the petitioner’s capacities his accounts with the respondents are to be settled.
The assets with which these accounts are concerned came from the mother of the two respondents, who died, leaving a will under which an executor was appointed.' This executor delivered the
In each of these capacities the petitioner accounts, displaying in each account the same items of -receipt and disbursement, the same aggregates and the same final statement.
The will under which he was appointed trustee contains a trust, implied but distinct, under which the respondents are the sole beneficiaries for a term and in remainder. The trust requires that the fund thereof be used for the support of the respondents according to the discretion of said guardians, necessarily meaning the trustees of the trust. There has never been a time when either of the respondents had any estate derivable from his mother of which a guardian could take charge, and there has never been a time when there was any property of any kind as to which the accountant as administrator had any possession or right of possession. At all times since the accountant has been concerned with the assets for which he accounts, the only person entitled to the custody and administration of such assets has been the testamentary trustee.
It is in strict accordance with the legal truth that the accountant charges himself with the residue of the entire estate in his capacity as substituted trustee, and, while he says the same thing as to the same fund in his several accounts as guardian and administrator, it is easy to accept his avowal of a custody which is the only custody legally possible and to reject his contrary statement when the latter cannot be true.
His account as trustee is, therefore, the only account which requires adjustment.
The issues presented by the main objections, dated November ■6, 1914, are disposed of as follows:
The items enumerated in the respondents’ objections numbered 1, 3, 4 and 5 are disallowed.
It cannot be successfully argued that paragraph 28 of the stipulation submitted is a waiver of the necessity of voucher or proof in support of disbursements.
Objection number 2 is overruled. Objections 6 and 7 are in part withdrawn and may well be entirely overruled, unless respondents desire to have a precise consideration of the principal and income accounted for.
There is- no need to dispose of objections 8 and 9, which were only to the form of the fund for which the accountant will be charged in the decree.
The supplemental objections, dated June 2, 1915, made in behalf of Stanley V. Gibson, are disposed of as follows:
The second1 objection is sustained. The third objection is sustained, and will result in a charge in favor of the single objeetant of $3,623 in excess of the sum in which the interests of the two beneficiaries are combined. This sum should bear interest at the rate of 6 per cent, from July 19, 1910.
. No investment was made for the benefit of any of the ■ accountant’s trust of $4,200 with which he charges himself. The only finding which the evidence and presumptions yield is that
The objectants are entitled to interest upon the balance found against the accountant from the date of the accounting to the date of the decree.
Proper decrees may be entered in all of the accountings.
Decreed accordingly.