108 Misc. 362 | N.Y. Sup. Ct. | 1919
The surviving trustees under two deeds of trust, each dated June 20, 1898, executed by Effingham Maynard, the elder, since deceased, bring this action for an accounting and the court’s instructions as to the persons entitled to participate in the distribution of the trust funds created for Effingham Maynard, Jr., now deceased, under each of said deeds of trust. The doubts which have arisen with respect to the distribution of the two funds in question necessitate the construction of the trust deeds and the last will and testament of Effingham Maynard, Jr. The defendant Farmers’ Loan and Trust Company, as trustee of a trust created under the will of Effingham Maynard, Jr., prays in its answer for an accounting on the part of the executor of the latter’s estate, and for a final determination'as to the persons who are entitled to share in the distribution thereof, and to what extent. Át the outset it may be well to pass upon the doubt expressed by the plaintiffs as to whether, under the present state of the pleadings, the court is in a position to order an accounting and distribution of the estate of Effingham Maynard, Jr., in this action. It appears that the defendant Farmers’ Loan and Trust Company, availing itself of the provisions of section 521 of the Code of Civil Procedure, served its answer asking for affirmative relief upon all the defendants, and fhat all persons entitled to share in the estate of Effingham Maynard, Jr., are before the court in this action. Under these circumstances the court is not limited by the allegations and the prayer of the complaint, and is in a position to determine the ultimate rights of those defendants who, as between themselves, are interested in the estate. It is not apparent how the plaintiffs’ rights can be prejudiced by such a course. Since the necessity for bringing an independent action, with its incidental delays and expenses, will be thereby
An interlocutory judgment will be entered in accordance with the foregoing views.
Judgment accordingly.