Elsworth v. Hinton , 21 N.Y. St. Rep. 730 ( 1889 )

Brady, J.

The learned justice in the court below was of the opinion that upon the respective accountings which took place, although they related exclusively to income, the grandchildren, who had a contingent future estate under the will, were entitled to notice, and, not having received any, the deerees of the surrogate were not binding upon them. He also thought that the appointment of the trustees mentioned in the statement of facts was correct, under section 2818 of the Code, and that the decree of the surrogate in reference to the accounts could be attacked collaterally, so far as they affected the grandchildren, for the reason that he had no jurisdiction over them in the proceeding by the failure to give them notice, and, issue being taken by the plaintiffs, the propriety of these different rulings is presented for our consideration. The learned judge in the court below was of the opinion that the language, “a sole testamentary trustee, ” in section 2818, conferred upon the surrogate authority to appoint a successor of a “sole surviving trustee;” the language employed in section 2818 indicating an intention to confer plenary powers upon him, including those which in this respect had been exercised exclusively by the supreme court. He thought that, if the words “sole testamentary trustee” were ambiguous, there was no good reason why they should receive the narrow construction contended for. It is not deemed at all necessary to decide this question, for the reason that the only persons interested in the appointment are the life-tenants and the remainder-men. If they choose to submit to it, the responsibility must rest with them. The plaintiffs have no such interest in it as to justify their assault upon the power to make it. It may be suggested here, however, that the supreme court, it would seem, never had the power mentioned. It is said sometimes that such authority was conferred by the statute, and the appointee is designated as a trustee, but reference to the provisions of the statute will show that, upon the death of a surviving trustee, the trust, if then unexecuted, shall vest in the supreme court, and shall be executed by some person appointed for that purpose under the direction of the court. 2 Eev. St. (6th Ed.) p. 1110, § 81, (see 68.) This person would seem to be therefore the servant of the court only. The trust remains with it absolutely.

In reference to the accounting ordered, it is deemed necessary to say only that the former accountings, affecting but the income, as alleged, are conclusive against the life-tenants and the remainder-men, unless they involve the corpus of the trust, wholly or partially, in which case they would conclude the life-tenants only, the remainder-men not having received notice of their presentation; and, further, that, inasmuch as the last surviving testamentary trustee is dead, the accounting ordered is proper as to the income not accounted for, if any, and the corpus of the estate, in which both classes of beneficiaries have an interest, and it should proceed, therefore, as directed. Eor these reasons it is thought that the interlocutory judgment should be modified so far as necessary to make it conform to this opinion. All concur.