In re Odell's Estate — 4 N.Y.S. 859

Majority

p. 859

In re Odell’s Estate.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

Trusts—Accounts ot Trustees—Surrogate Practice.

Upon the filing of a petition against a testamentary trustee, to require him to pay the petitioner, his cestui que trust, money due the latter by the terms of the will, and an answer throwing doubt on the validity of the petitioner’s claim, the surrogate, instead of dismissing the petition, as provided by_ Code Civil Proc. N. Y. §§ 2804,2805, may, when it contains a prayer for general relief, order the trustee to render an intermediate account, under section 2803, authorizing a surrogate to require such account upon the petition of a person interested in the fund.

Appeal from surrogate’s court, Mew York county.

Petition by Lydia ICane against Mary J. Odell and James J. Burnet, trustees under the will of Lawrence Odell, deceased, to require them to pay the petitioner certain money alleged to be due her. The surrogate refused to make the order requested, but directed the trustees to render an intermediate account. From this order the trustees appeal. For former reports see 2 K. Y. Supp. 752, and ante, 463.

Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.

Jacob Fromme, for appellants. Michael H. Cardozo, for respondent.

Lydia H. Kane, a beneficiary under the will of Lawrence Odell, deceased, presented her petition to the surrogate of the county of Yew York, alleging that she was entitled to one-half of the income derived from the testator’s residuary estate, and praying that the trustees under the will might be directed to pay her $1,500 on account thereof. The petition also asked that the trustees might be cited to show cause why a decree should not be made for such payment, and why the petitioner should not have such other and further relief in the premises as to the court should seem proper. The testamentary trustees filed duly-verified answers in writing, which under section 2805 of the Code of Civil Procedure'required the surrogate to dismiss the petition so far as the application for the payment of the $1,500 was concerned, inasmuch as the answers sufficed to show that it was doubtful -whether the petitioner’s claim was valid and legal. The surrogate accordingly made an order denying the petitioner’s application for payment to her of the amount which she demanded, but added to the order a direction that the trustees should file an intermediate account, showing in detail their receipts and expenditures in the execution of their trust. From this part of the order the trustees appeal, on the ground that the surrogate had no power, under the circumstances, to compel an intermediate account to be filed, but was restricted under the law to a simple dismissal of the appellant’s petition. If a petition under section 2804 of the Code prayed for nothing except the payment of money or the delivery of personal property out of the trust-estate, it would seem that the jurisdiction of the surrogate would not extend further than to dismiss it upon the filing of such an answer as is mentioned in the following section, (2805.) But where the petition, as in the present case, contains also a prayer for general relief, such as the court may deem just, we think it is within the power of the surrogate, under section 2803, to make an order requiring the testamentary trustee to render an intermediate account. That this power was properly exercised in the present case seems evident. Order affirmed, with $10 costs and disbursements. All concur.