In re Smith's Estate — 23 N.Y.S. 87

Majority

p. 87

(68 Hun, 530.)

In re SMITH'S ESTATE.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

Accounting by Trustee—Proper Parties.

On a proceeding for an accounting by a trustee under a will directing the executors to divide the estate among testator’s children, retaining the principal until they arrive at a certain age, it appeared that one of the beneficiaries had died, leaving a will which made no provision for a ebild bom subsequently to the making thereof. Held, that the beneficiary’s child had an interest in the property, and was a proper party to the proceeding, together with the beneficiary’s executor.

Appeal from surrogate’s court, New York county.

Proceeding for an accounting by Emily A. Smith as trustee under the will of Edmund A. Smith, deceased. From an order directing that Edmund D. Murphy, as executor of the will of Elsie S. Murphy, deceased, be made a party to the proceeding, and that Eugene H. Pomeroy be appointed guardian ad litem of the infant Elsie J. Murphy, on said accounting, and be made a party thereto, Emily A. Smith appeals.

Affirmed.

Edmund D.. Smith by his will directed his executors to divide the residue of his property equally between his wife and his children, of whom Elsie S. Murphy was one, the principal not to be paid to the children until they respectively arrive at the age of 30 years. Elsie S. Murphy died, leaving a will which made no provision for her daughter, Elsie J. Murphy, who was born after the execution of the will.

Argued before VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ.

William A. Boyd, (Charles Donohue, of counsel,) for appellant.

Frank D. Sturges, for respondent Eugene H. Pomeroy, guardian ad litem.

Upon the death of Elsie S. Murphy, the daughter of Edmund A. Smith and the, mother of the infant respondent, an interest in the estate of the deceased, Elsie S. Murphy, became vested in Elsie J. Murphy, the infant respondent. It is unnecessary for us to determine on this appeal just what interest this infant had in the property. held by the appellant in trust. Whether representing her mother, or being entitled to inherit from her mother, she had an interest in the mother’s share of the property held in trust by the appellant, and as such was a proper party, although perhaps not a necessary narty, to the proceeding for an accounting by the trustee. The judgment on that accounting will bind the infant; and as the executor, as personal representative of Elsie

p. 88

Murphy, is also a party to the proceeding, that judgment will also bind the estate of Elsie S. Murphy. We think that the interests of all the parties to this proceeding can be settled in this proceeding, and that the order below was right, and should be affirmed, with $10 costs, and disbursements to the respondent, to be paid by the trustee personally.