Hyperlawhypertext legal databasebeta In re the Judicial Settlement of the Account of McInerney 62 Misc. 441

← Cases

In re the Judicial Settlement of the Account of McInerney

62 Misc. 441 Court N.Y. Sur. Ct. English

Contents

Majority

p. 441
Matter of the Judicial Settlement of the Account of Charles A. McInerney and Joseph P. Mulqueen, as Surviving Executors of the Last Will and Testament of Mary McInerney, Deceased.
(Surrogate’s Court, Kings County,
February, 1909.)

Headnote

Surrogates’ Courts: Nature and extent of jurisdiction — Administration of decedents’ estates — Settlement of claims on accounting by representatives— Claims against representatives: Procedure and
review — Hearing, rehearing and decision — Decision — Suspending decision pending decision in other court.
The Surrogate’s Court has no jurisdiction, upon the settlement of the accounts of a testamentary trustee who is also one of the beneficiaries of the trust, to pass upon a claim that he should account to the estate for the injury inflicted upon it by reason of his having joined with other beneficiaries in the purchase of a portion of the real estate for their own interest and profit.
And the court will not examine such dealings of the trustee with the estate in order to determine whether .or not the trustee . is entitled to commissions and thus make an adjudication conclusive upon the parties, but will reserve the question of commissions and leave the parties to settle the question of the trustee’s liability in the Supreme Court where complete relief may be given. .
Proceeding upon the settlement of accounts of testamentary trustees.
Sparks & Fuller, for executors.
Edward J. Flanagan (James C. Church, of counsel), for contestant.
Franklin M. Tomlin, special guardian.

In the settlement of the accounts.of testamentary trustees it is claimed that, upon the sale of real estate, pursuant to a power of sale in the will, a trustee, who is one of the seven beneficiaries under the will, joined with three other beneficiaries in the purchase of a portion of the real estate, in part for his own interest and profit, and tha+ he should account'for any injury inflicted upon the estate by his acts in this regard.

p. 442
The court has no jurisdiction of the question thus presented. It is of equitable cognizance and belongs exclusively to a court of general equity powers. Matter of Valentine, 1 Misc. Rep. 491 ; Matter of Randall, 152 N. Y. 508 .

It is probable that the surrogate has power to examine the trustee’s dealings with the subject of his trust in order to determine whether or not the trustee is entitled to commissions; but in the .event of the exercise o'f jurisdiction in this respect the surrogate’s finding that the trustee was faithful or unfaithful would conclude the parties in any action in which the questions cognizable in equity would be presented.

Thus the court, which has no power to make a comprehensive judgment as to the trustee’s conduct and any.liability that might result therefrom, would impose its adjudication upon a court to which the complete jurisdiction attaches.

To avoid a result so droll and inconvenient, the question of commissions will be reserved; and counsel may present their views as to whether this proceeding shall be adjourned pending the hearing of the question in the Supreme Court, or whether the decree shall be entered for partial relief, with leave to apply upon the foot thereof for further direction.

Decreed accordingly.

Cases cited