3 N.Y.S. 25 | N.Y. Sup. Ct. | 1888
The plaintiff is the trustee of the estate of William Law■rence, deceased. In January, 1887, he presented his petition to the surrogate’s •court for the county of Yew York for a citation directed to the beneficiaries •under the last will and testament of the testator to attend the judicial settle
The allegations contained in the complaint were sufficient to bring the case-within the authority of the decisions made in Re Brown, 3 Civ. Proc. R. 39,. 45-51; Re Giles Estate, 11 Abb. H. C. 57; Pettigreiw v. Foshay, 12 Hun, 486; and Wright v. Fleming, 76 N. Y. 517, provided the authority of the surrogate over the controversy concerning the release was substantially the same as it would have been if the application had been made for the accounting by an executor or administrator.
In support of the demurrer and of this appeal the appellant has insisted that the authority conferred upon the surrogate over the settlement of the accounts of a trustee are broader, and so much more extended than it is over the accounts of an executor or administrator, as to include the power to try and determine the questions which have arisen concerning the execution, delivery, and effect to be given to the release. But the provisions contained in the Code do not seem to sustain this distinction. By section 2802, any trustee-created by a last will and testament, or appointed by competent authority to-execute the trust, may at any time file an intermediate account, and annually render, and finally judicially settle, his accounts before the surrogate of the-county having jurisdiction of the estate or trust. But this, it has been further declared, is to be done in the manner provided by law for the final judicial settlement of the accounts of executors and administrators; and the effect-to be given to the decree is to be the same, and no greater, than a decree entered upon tlie settlement of the accounts of an executor or administrator, and. an appeal is allowed to be taken from the decree in the same manner. Prom the language of this section it seems to have been the purpose of the legislature-to confer upon the surrogate the same power over the settlement of the accounts-of the trustee which was previously given to him over the accounts of executors or administrators; and that power, both by this section and also those-contained in article 2, tit. 4, c. 18, Code, has been to do no more than to settle- and judicially determine the accounts themselves. Ho authority has been conferred to enter upon the hearing and determination of any collateral or incidental disputes involving the right or title of either of the claimants to an< interest in the estate, after that may have been formally released, as it was-in this case. By section 2807 of the Code power has beéh given to the surrogate to compel a judicial settlement of the accounts of a testamentary trustee in three specified classes of cases; but the power there conferred has been limited entirely to the settlement of the accounts themselves. And the other sections succeeding section 2802, to and including 2806, and from 2808 to 2815 of the Code, relating to the proceedings before the surrogate, have extended
By all the sections of the Code referring to and providing for the settlement-of the accounts of testamentary trustees, the intention is disclosed of giving' the surrogate the same jurisdiction, and no more, than he has over the accounts-
Van Brunt, P. J., and Brady, J., concur.
ON APPEAL FROM AN ORDER CONTINUING AN INJUNCTION.
The injunction was issued j;o enjoin and restrain the defendant, his agents, etc., during the pendency of this action, from taking any further steps in the surrogate’s court, upon or relating to, or in attempted violation ■of, the general release executed and delivered by the defendant to the plaintiff. The right of the plaintiff to this injunction.depended upon the same facts as his right to maintain and prosecute the action itself, to obtain an adjudication .sustaining or controlling the effect of the release in controversy. That such .an action may be maintained has the approval and authority of Wright v. Fleming, 76 N. Y. 517, as well as the other authorities which have been mentioned in the disposition of the appeal in this action from the interlocutory Judgment. It is unnecessary to go over the case again for the disposition of this appeal. As the surrogate, and the referee appointed by him, was without the power to hear and dispose of the controversy which has arisen concerning .the release, it followed that the plaintiff was entitled to have it heard and determined in this action; and as all the necessary facts had been alleged and .set forth upon which that determination may be made, and disclosing its necessity, the order continuing the injunction was right, and it should be .affirmed, with $10 costs, and also the disbursements.
Van Brunt, P. J., and Brady, J., concur.