115 N.Y.S. 903 | N.Y. App. Div. | 1909
The complaint alleges that . John F. Kellers of the city of Hew York died in 1869, leaving a last will and testament and a codicil thereto, copies of which are inserted in the complaint. It was then alleged that one of the executors named in the will and codicil died and the other resigned, and the plaintiff was appointed substituted trustee under the said will; that the estate consisted of personal and real property located in .the city of . Hew York. The complaint further alleges that the life beneficiary has been in possession of the real property and received the rents and profits thereof and has also received the interest on the personal property; that there has been no settlement of the plaintiff’s accounts and he, "therefore, demands judgment that his accounts he taken and stated and a decree entered therein judicially settling his accounts, and for other and further relief. To that complaint the defendant, the life beneficiary demurred upon three grounds: First, that the complaint does not state facts sufficient to constitute a cause of action •; second, that causes of action have been impropérly united; and, third, that the plaintiff as substituted • trustee has not legal capacity to sue. This demurrer was overruled arid the defendant appeals.
It is quite clear. that the demurrer cannot be sustained upon either of the grounds stated.- The complaint alleges all the facts essential for a decree judicially settling the trustee’s accounts; the Supreme Court has jurisdiction to settle a trustee’s accounts and determine the terms of and enforce a trust of either real or personal property; and a trustee has legal capacity to maintain an action in equity for the settlement of his accounts. The defendant, however, seeks to sustain this demurrer upon the ground that the Supreme Court will not entertain an action to settle a testamentary trustee’s accounts, but will leave the same to be settled before the
It follows that the judgment appealed from is affirmed, with costs, with leave to the defendant to withdraw the . demurrer and answer within twenty days upon payment of costs in this court and in the court below.
Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.