68 N.Y.S. 551 | N.Y. App. Div. | 1901
Lead Opinion
Appeal from an order denying defendant’s motion to vacate an order requiring him to submit before trial to an examination, and to produce in connection therewith certain books and papers. The motion to vacate was made upon the same papers upon which the order directing the examination and the production of the books and papers was granted. These papers'consisted of the complaint, the answer and two affidavits, one by the plaintiff and the other by her husband.
From these papers it appeared that in 1877 one Harold Hen-wood died, leaving him surviving his widow—this plaintiff — and an infant son. He left a will, by wh..ch he gave all of his property to the plaintiff and their son, to be equally divided between them, and making the plaintiff a trustee for the son until he should arrive at the age of twenty-one years. The executors named in the will were the defendant, one Halliard and the plaintiff. The will was admitted to probate and letters testamentary issued to the defendant and Halliard, the plaintiff not qualifying. The defendant alone assumed the active administration of the estate, Halliard taking no part whatever therein subsequent to December 21, 1878, on which day, in the Probate Court of Hudson county, N. J., a decree was
The defendant, in his answer, admitted the death of Iienwood, the admission of the will to probate, and that he and Halliard alone qualified as executors, and alleged that on the 21st of December, 1878, the accounts of the executors were settled and a decree
We are of the opinion that this order was properly granted, and this even though, as alleged in defendant’s answer, he had settled and been discharged as executor and thereafter had been acting as the agent of the plaintiff. If he were the agent of the plaintiff, no good reason can be suggested why he should not make the fullest disclosure to her of his own acts — what he has done with her property, how he has managed it and what have been the expenses connected with such management, and why it has decreased under his management from upwards of $50,000 to $10,000 — and why he should not produce all of his books and papers bearing on that subject. The general rule is that, where the fiduciary relation of principal and agent exists and the facts, as here, are peculiarly within the knowledge of the party sought to be examined, the technical rules which govern the granting of orders for the examination before trial and the production of books and papers in connection there-’
I think the order is right and should be aífirméd, with ten dollars costs and disbursements.
Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.
Dissenting Opinion
I dissent. ' I think that the plaintiff should -he required to establish her right to an accounting by showing that the relations of trustee and cestui que trust existed during the period covered by the complaint. When she has established this fact she then, as matter of law, would be entitled to an accounting, and upon that accounting she could have all the examination of the defendant which would be necessary.
O’Brien, J., concurred.
Order affirmed, with ten dollars costs and disbursements.