In re Nielson

Hill, P. J.

This appeal is from a decree of the Rensselaer County Surrogate’s Court dismissing appellants’ petition for an accounting by the executors under the will of Nellie Lyon, deceased, of her proceedings and acts as a trustee for Alice Lafflin and her heirs. The appellants are two of the heirs at law and next of kin. The reason given for the dismissal was that the Surrogate’s Court did not have jurisdiction to hear and determine appellants’ claims as the trust was inter vivos and not testamentary. Nellie Lyon was the daughter of Alice Lafflin. The mother predeceased her daughter. The trust for which an accounting is asked is founded upon a written agreement made on July 26, 1911, between the mother and daughter. The subject-matter of the agreement was the conveyance to Mrs. Lyon in trust of “ all of the pieces of real property owned by her [Alice Lafflin] and located in the city of Niagara Falls and in the towns of Lewiston, Niagara and Wheat-field.” A portion had been conveyed and thereafter deeds of the remainder were executed and delivered. It is recited in the agreement that mortgage foreclosures were pending against a portion of the property, and that Mrs. Lyon was ready to advance the moneys necessary “ to effect the discontinuance of such foreclosure and reheve the financial pressure on the party of the first part [Mrs. Lafflin]; ” the advancement to be made on the delivery of deeds and she was “ to make, execute and deliver to the party of the first part a trust declaration to the effect that she takes and holds the title to the properties so conveyed to her and heretofore conveyed to her as above mentioned for the use and benefit of the party of the first part, and for the following purposes.” She was to undertake the refinancing of various maturing loans and if possible to sell items of the property, and with the proceeds to pay or reduce incumbrances, then “ to retransfer the unsold properties to the party of the first part as soon as said mortgage has been reduced ” to a stated amount. The agreement was to bind “ the heirs, executors, administrators and assigns of the parties hereto.” The petition states that Mrs. Lyon has sold all of the real property except the “ Military Road Property ” and has received in excess of $250,000, besides amounts sufficient to pay all mortgages, taxes, hens and incumbrances. The answers "of the executors, besides raising the issue of jurisdiction upon which the petition was dismissed, pleaded that the transfer to Mrs. Lyon was an absolute gift and further that any obligation to account to the remaining heirs and next of kin. of Mrs. Lafflin had been discharged and satisfied by the provisions which Mrs. Lyon had made in her will for these persons.

The Surrogate’s Court has jurisdiction “ to administer justice in all matters relating to the affairs of decedents * * *, to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding * * * as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.” (Surr. Ct. Act, § 40.) Earlier decisions have been superseded by the above which was enacted in 1921. This general grant of jurisdiction is not to be read as limited by specific grants of jurisdiction as to enumerated subjects. It is not the function of the court to thwart the unlimited jurisdiction given Surrogates’ Courts to administer all matters relating to the affairs of decedents and to make full, equitable and complete disposition. (Matter of Raymond v. Davis, 248 N. Y. 67.) In connection with the affairs of the decedent Nellie Lyon, it will be necessary to try and determine legal and possibly equitable questions arising through her acts under the trust agreement of 1911. It will be necessary to ascertain the amount of money, if any, in her estate that was received from the sale of the real property conveyed to her by her mother. The equitable ownership of the Military Road property is involved. The appellants assert ownership in the heirs of Mrs. Lafflin, the executors plead a conveyance absolute to Mrs. Lyon. The legal title to this property is in her name, the equitable ownership is a matter relating to the affairs of her estate, and may be determined in Surrogate’s Court. Should a decree be made that the executors reconvey this property in consonance with the trust agreement, its ultimate disposition and the division between the persons determined to be the owners may be a subject requiring the consideration of a forum other than the Surrogate’s Court. (Matter of Miller, 257 N. Y. 349.) However, that question is not presented now.

The decree of the Surrogate’s Court should be reversed on the law, with costs to the appellants payable out of the estate, and the matter remitted for a determination of the issues presented by the petition and answers.

Rhodes, Bliss and Heffernan, JJ., concur; McNamee, J., dissents, with an opinion.