Reed v. Clark — 144 A.D. 178

Majority

p. 178

Nellie K. Reed, as Trustee under the Last Will and Test a ment of James W. Ranney, Deceased, etc., Appellant, v. Emma G. Clark and Elijah F. Clark, an Incompetent, Impleaded with William C. W. Child, as the Committee, etc., of Elijah F. Clark, and Others, Respondents.

First Department,

April 21, 1911.

Headnote

Will — action for construction—pleading,— answer demanding accounting in Supreme Court. J

Defendants in an action brought by an executrix and testamentary trustee to obtain a construction of the will are not entitled to interpose an . amended answer which, inj addition to raising the issue of construction, also calls upon the plaintiff to account. If the will be construed so as to make the defendants interested parties entitling them to'an accounting; it should be had in the Surrogate’s Court.

. Appeal by the plaintiff, Nellie K. Reed, as trustee, etc., 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 20th day of March, 1911.

Sumner B. Stiles, for the appellant.

William H. Kinnear, \ for the respondents.

This is ah appeal from an order granting the motion of certain defendants to serve | an amended-answer. • This action is by a trustee appointed by the will of James W. Ranney, deceased, and its sole purpose isj to obtain, a construction of a single clause in said will ándito obtain the direction of the court as to the disposition of th|e trust fund. • The will, among other things, gave certain, property to plaintiff in trust to receive the rents' and profits thereof and apply them to the use of testator’s daughter Henrietta H. Ranney during her life, and at her death to divide the same among her children if. she should leave any. Henrietta has died leaving no children.- In this contingency the will provides for the' division of the trust fund. As to the disposition of a' part of it the language and intention of-the will is obscure, j According to one reading it would be

p. 179

payable to Emma Gr. Clark, a daughter of the testator, who is now living. According to another reading it would be payable to the respondents, who are the children of said Emma Gr. Clark. It is to procure a* construction of the will in this particular that this action is brought. If the one reading prevails, the defendants will have no interest in the estate entitling them to call the executors or trustees to account. If the other reading prevails, they will have such an interest. One of these children, Elijah F. Clark, an incompetent person, instituted proceedings by his committee to compel the executors of James W. Rannéy, deceased, to account and tt^e surrogate ordered them to do so. Upon appeal to this court the order was reversed, the court saying: “We think that as the right ' of the petitioner to institute these proceedings depends upon a construction of a clause in the will which is not free from doubt, and that as proper steps had been taken in the Supreme Court for the construction of the will, where all interested could be made parties and be heard, this proceeding for an accounting should not proceed until it shall have been judicially determined in such action that the petitioner has a right to compel such accounting.”^[1] These respondents also began an action in this court seeking to call the executors to account. This action was stayed to await the determination in the present action of the question whether or not the respondents have any interest in the estate which would entitle them to démand an accounting. In the present action the respondents, in their original answer, contented themselves with meeting the issue tendered by the complaint as to the proper disposition of the trust fund. By their amended answer they in substance and effect call upon plaintiff, who is an executrix of the will, as well as a trustee, to account. In our opinion this issue should not be interjected into this action, which should be confined to the one question respecting the proper construction of the will. If that construction be f avorable to the respondents, the Surrogate’s Court is the proper place in which to call the executors to account. If it should be unfavorable to respondents, they will have no right to an accounting in any place.

* See Matter of Ranney ( 138 App. Div. 755 ).— [Rep.

p. 180

The order appealed friom must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten I dollars costs.

Ingraham, P. J.,-McLaughlin, Miller and Dowling, JJ., concurred.

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