Mount v. Mount

The facts in this case are as follows: Bichard E. Mount died on the 30th day of March, 1880, leaving a last will and testament, which was duly admitted to probate on May 5, 1880, by the surrogate of New York county. Said will, among other specific bequests, directed Ms executors to set aside out of his personal estate the sum of §5,000, and hold the same in trust for the benefit of his nephew Bichard H. Mount during his life, and at his death to pay over and divide the same among his cMldren in equal shares. The will appointed the brother of the testator Henry B. Mount, and his nephew Henry B. Mount, as executors. The brother Henry B. Mount died before the testator, and the nephew Henry B. Mount qualified as sole executor, and acted as such up to the time of his death, which occurred on the 29th of July, 1889. Henry B. Mount, the executor above named, left a last will, which was duly admitted to probate by the probate court of Orange, where said Henry R. Mount resided at the time of his death, and letters testamentary were issued to the defendant, Gertrude M. Mount, as sole executrix thereof. After proceedings had before the surrogate of the county of Kings, N. Y., letters testamentary, ancillary to those already granted by the probate court of Orange, N. J., were granted to said Gertrude M. Mount, who duly qualified as such executrix. The plaintiff, Charlotte A. Mount, was, on the 27th day of August, 1900, duly appointed as substituted testamentary trustee in the place and stead of said Henry B. Mount, deceased, and she duly qualified as such substituted testamentary trustee and is acting as such. Plaintiff has demanded of the defendant the custody and control of the said trust fund, and of the accrued interest thereon, and, the defendant having refused to pay over the same, this action is brought to recover the fund.

The answer of the defendant sets up two affirmative defenses, after putting in issue, either by positive denial or by denial of any knowledge or information sufficient to form a belief, the allegations of the complaint. Those affirmative defenses are, first, that the cause of action stated in the complaint did not accrue within six years he-

As to the affirmative defenses set up in the answer, it is sufficient to say that, as a general rule, the obligation of a trustee to- account is not affected by the statute of limitations until a denial or repudiation of the trust. Zebley v. Trust Co., 139 N. Y. 461 , 34 N. E. 1067 . In this case there was no denial or repudiation of the trust by Henry R. Mount, so far as the evidence' discloses. He accepted the position of executor under his uncle’s will, and acted as such until the time of his death.

As to the point that there is a defect of parties, in that the remainder-men, the children of Bichard H. Mount, are not joined as parties defendant, I understand it to be well settled that it is not necessary, in an action brought by a trustee to recover trust property, to make the cestuis que trustent parties to the action, unless the action involves and requires the determination of rights as between the beneficiaries themselves, or as between them and the trustees. Such is not the case here. In re Straut, 126 N. Y. 201 , 27 N. E. 259 . Irrespective of the inventory, I think that the further evidence submitted on the second hearing is sufficient to warrant the court in holding that the said Henry R. Mount became possessed of the specific trust fund of $5,000, directed to be set apart by the will of "Richard E. Mount for the benefit of his nephew Richard H. Mount. The evidence given at the second hearing showed that Henry B. Mount, as executor, etc., of Richard E. Mount, deceased, had satisfied mortgages held by the testator, or which belonged to his estate, in an- aggregate

Judgment for plaintiff, with -costs.