| Mich. | Apr 22, 1892
The bill in this case was filed- for an accounting against Emma A. McIntyre as trustee. The other defendants are made parties on the ground that, they are in possession of some of the trust funds.
One Joseph Shaw died in 1876, testate, leaving three-children, the defendants, and one granddaughter, the complainant. He appointed one Dwight Hunt as executor. The bill sets forth a provision' of the will by which $1,000 was bequeathed to Emma Shaw, now Emma A. McIntyre, in trust for complainant, to be paid to her upon her marriage, or upon attaining the age of 21 years. The bill alleges that the will was duly probated; that Hunt was appointed executor; that he fully administered the estate, except paying the amount of the legacy; that he has none of the property of the estate-in his hands; that it has all been turned over to the defendants; that the defendants are the sole persons interested in the estate; that said Emma A. McIntyre did not ‘formally in writing accept the trust, but that she did in fact accept such trusteeship, has received from.
The bill prays for an accounting, and that defendant Emma may be directed to pay such amount as may be found due and payable from her as trustee; that the defendants may be directed and required to pay such balance to her; and that, in the event of default, the real and personal property constituting the estate of said Shaw, deceased, and which was charged by his will with the payment of said legacy, be sold, and the legacy paid out of the avails. It contains jalso a prayer for general relief.
To this bill the defendants demur, alleging that the ■executor was a necessary party, and that complainant has an ample remedy in the probate court.
The demurrer was sustained.
We think this case is clearly within the rule of Weaver v. Van Akin, 77 Mich. 588" court="Mich." date_filed="1889-11-08" href="https://app.midpage.ai/document/weaver-v-van-akin-7934368?utm_source=webapp" opinion_id="7934368">77 Mich. 588, and Wooden v. Kerr, 91 Id. 188.
If the defendant Emma A. McIntyre has received any of the trust fund created by the will, the probate court has no jurisdiction to order her to an accounting. A court of chancery is the proper tribunal for that purpose. In such case she would be estopped to assert that she had not formally accepted the trust. It is sufficient to hold her, if such fund, or any part thereof, has come into her possession, and she has treated it as a trustee.
The other codefendants, under the allegations of the bill, are proper parties. To what extent, if at all, they shall be held liable, will depend upon the proofs.
The executor is not a necessary party, even if he were
It is true that the allegations of the bill might very properly have been more specific, but we think they are sufficient to entitle the complainant to an answer and a hearing.
The decree must be reversed, with costs, and the case remanded for further proceedings, with leave to answer according to the rules and practice of the court.