Starr v. Selleck — 138 A.D. 277

Majority

p. 277

Louis M. Starr and Howard W. Starr, as Executors, etc., of Theodore B. Starr, Deceased, Respondents, v. Harriet E. Selleck, Appellant, Impleaded with Louis M. Starr and Howard W. Starr, Individually and as Executors, etc., of Theodore G. White, Deceased, and Others, Respondents.

First Department,

May 6, 1910.

Headnote

Reference — accounting—validity of trust — determination of that issue prerequisite to reference.

Where the answer to a suit by the executors of a deceased testamentary trustee for an accounting puts the validity of the trust in issue, a referee should not be appointed until the issue raised by the answer is determined by an interlocutory decree.

An accounting cannot be referred prior to the trial of the other issues and the entry of an interlocutory judgment deciding them.

Appeal by the defendant, Harriet E. Selleck, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the'county of New York on the 26tli day of March, 1910, granting the plaintiffs’ motion for the appointment of a referee to hear and determine the issues, including the taking of accounts.

Omar Powell, for the appellant!

Eugene EL. Match, for the plaintiffs, respondents.

This action is brought by the executors of a deceased testamentary trustee for an accounting and for direction to pay over the trust property to the Supreme-Court or to a trustee to be appointed by it, or for distribution among the persons entitled thereto.

The answer of the appellant alleges, among other things, that the trust created by the 3d paragraph of the will appointing the testamentary trustee is void for want of a definite, determinable object or beneficiary, and that an instrument executed by her confirming the trust was fraudulently obtained from her by the trustee; that the alleged'trust property belonged to one Theodore G-. White, the creator of the trustthat she is his sole heir at law and-next of kin and by reason thereof entitled to the same. '

After issue had been joined the plaintiffs moved that a referee be appointed to hear and determine. The motion was granted and the appeal is from the order.

The real and substantial controversy is over the validity of the 3d clause of the will, as well as the validity of the instrument executed by the appellant confirming the trust, It is quite apparent that these issues must be determined, even if an accounting be had, before a distribution can be made. If, at the trial,, it should be determined that the plaintiffs’ contention is. correct, then the court can, of its own motion, send the matter to a referee to take and' state the account and direct. how the same shall be distributed. Before a reference is ordered an interlocutory judgment should be entered determining these issues. The general rule is that an accounting cannot be referred prior to the trial of the other issues and the entry of an interlocutory judgment settling and determining the same. (Bushby v. Berkeley, 135 App. Div. 443 ; Goodman v. Roth, Id. 515 ; Post v. Van Siclen, 132 id. 796; London v. Meryash, Id. 323; Gibson v. Widman, 106 id. 388.) I think the rule is applicable to the case before us.

The order appealed from, Therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, B. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, 'with ten dollars costs and disbursements, and motion denied, with ten dollars costs.