106 N.Y.S. 907 | N.Y. App. Div. | 1907
This action is brought in the Supreme Court to compel the defendant Edwin B. Meeks to ■ account as executor and testamentary trustee, to pay over • to the plaintiff such sums as shall be
It is apparent that the only issue to be litigated, save the issue of fraud and illegality respecting the intermediate decrees, is the right of the trustee to deduct the alleged indebtedness of the plaintiff’s testator from the income accruing to him. So far as this depends upon the validity of said debt, the Surrogate’s Court has not jurisdiction to determine the issue. ( Van Valkenburg v. Lasher, 53 Hun, 594, and cases cited.) The respondents do not contend that the Surrogate’s Court has jurisdiction to determine the validity of a disputed debt claimed to be owing the estate by the cestui que Bust, but assert that the plaintiff does not seriously dispute the validity of said deht. It is' true that counsel for the plaintiff, in opening, stated that he should rely upon the proposition that it was the intention of the testator by his will to forgive said alleged debt. He did not state, however, that that was his sole reliance, but, on the contrary, asserted mor'e than once that the Surrogate’s Court did not have jurisdiction to determine the issue,-for the reason that the validity of said debt was disputed. It may be that said statement was equivocal, and that counsel only intended to question the validity of the debt by the claim that the testator intended to forgive it. But the question whether the debt.ever had any existence or validity is presented by the pleadings, and nothing was said by counsel in opening foreclosing him from litigating that issue; on
Moreover, the defendant as trustee was required by the will to pay the plaintiff’s testator the income in dispute. Even if the validity of the debt were not disputed, the right of action on it would be in the executor, and the right of the trustee to retain, income due the cestui que trust and apply it upon a debt owing the estate by the latter, if it exist, could not be passed upon by the surrogate. The Surrogate’s Court has no equitable jurisdiction, and none to pass upon the right of set off in such a case as this. (Stilwell v. Carpenter, 59 N. Y. 414.) It thus appears that all the issues between the parties can be determined in one action in the Supreme Court, and that the main, if not the only, issue to be litigated cannot be determined by the Surrogate’s Court. Under these circumstances wé think the Supreme Court should have retained the cause, and the judgment dismissing the complaint should, therefore, be reversed.
Hiesohbeeg, P. J., Hookes, Gaynoe and Rich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.