Seaward v. Davis — 148 A.D. 805

Majority

p. 805

George W. Seaward, as Administrator with the Will Annexed, etc., of William Z. King, Deceased, Respondent, v. Buell G. Davis, as Executor, etc., of Mary E. King, Deceased, Appellant.

Second Department,

January 26, 1912.

Headnote

Appeal from interlocutory judgment which has been affirmed — accounting of trustee for remaindermen.

An interlocutory judgment which has been affirmed by the Appellate Division and the Court of Appeals cannot be again reviewed. Accounting of a trustee for remaindermen, under an order of reference in an interlocutory judgment, examined and approved.

Appeal by the defendant, Buell G. Davis, as executor, etc., from a final judgment of the Supreme Court in favor of the

p. 806

plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of April,. 1911, pursuant to an interlocutory judgment entered in said clerk’s office on the 13th day of July, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to bring up for review said interlocutory judgment, the statement and account of defendant filed on the 20th day of August, .1908, the proceedings before the referee and his report to the court; and also an order to show cause made by a justice of the Supreme Court.

Frederick H. Tasker, for the appellant.

Robert H. Wilson, for the respondent.

This case, under the title of Tuthill v. Davis, was before this court ( 121 App. Div. 290 ) for a construction of the will of one King, and again on appeal from a final judgment, bringing up the interlocutory judgment (Seaward v. Davis, 133 id. 191), where we modified the judgment by providing that it should not charge the defendant with an arbitrary' sum of $17,268.50 “ as if it was a remainder for which the testator or her successor must account.” The case went to the Court of Appeals (198 17. Y. 415), where the judgment was modified by directing that the accounting .under the interlocutory judgment, as modified by this court, should proceed. The effect of these adjudications is to make conclusive tile judgment of this court as to the proper construction of the ¡will of William Z. King, who gave his personal property to his wife for life, with power to use the principal “for her own personal use,” and that she held such personal property “as trustee for the remaindermen as to all that portion thereof which was not used by her during her lifetime for her own personal use,” and that the defendant, as administrator, was liable to account for the acts of said wife as such trustee. The accounting has taken place, under the order of reference in the interlocutory judgment, and the learned referee to whom the matter was sent for adjustment has made his report, which report has been confirmed, and the defendant now appeals from the

p. 807

judgment as thus completed, which charges the defendant with the sum of $15,861.92, besides certain articles of jewelry purchased by Mrs. King out of the funds coming into her possession from her husband’s estate.

We know of no rule of law by which the interlocutory judgment, which has been affirmed by this court and by the Court of Appeals, can be again reviewed. (Code Civ. Proc. .§§ 1316, 1350; Rich v. Manhattan R. Co., 150 N. Y. 542 .) There being no questions to be determined as to the law of this case, the only matters to come under consideration are those arising under the proceedings had before the referee, who was directed by the interlocutory judgment to determine the amount of the estate of William Z. King which remained in the hands of his widow, and which had not been disposed of for her own personal use at the time of her death. We have examined with care the financial statement prepared by the appellant, with a view to showing that the learned referee had erred in charging the defendant with the amount above mentioned, but it is very clear to us that counsel has overlooked the very important fact that the estate of William Z. King was so invested that it yielded an income of something over $700 per year, and that the estate left by Mrs. King appears to have been substantially the same as that which was left by her husband. It was shown that she had no other property and no other source of income, and we are of the opinion that the accounting is entirely in harmony with the suggestions made by the Court of Appeals, and that there is no reason for this court to interfere with the judgment as rendered.

The question of the jurisdiction of this court has necessarily been passed upon in the former reviews, and will not now be considered.

The judgment appealed from should be affirmed, with costs, the so-called appeal from the interlocutory judgment being dismissed.

Jenks, P. J., Hirschberg and Rich, JJ., concurred; Burr, J., not voting.

Judgment affirmed, with costs.

Cases cited

Tuthill v. Davis 121 App. Div. 290 N.Y. App. Div. 1907-07-23 p. 806
Rich v. Manhattan Railway Co. 150 N. Y. 542 N.Y. 1896-10-30 p. 807