Levett v. Polhemus

terms of the will there was no cause of action stated against the executors, and the fact that some of the defendants may have asked for the construction of the will does not operate to give the complaint any greater vitality than it would have if no such pleadings were made on the part of the defendants. If the complaint does not state a good cause of action—if the plaintiff is without the right to maintain the action—then there is no reason for the introduction and settlement of collateral questions. The defendants are deprived of no rights. They stand in exactly the same position that they would have been in had the plaintiff not moved in the matter, and they have no legal grievance because the plaintiff has failed to maintain her action. In considering this appeal, therefore, we are concerned only with the case presented by the plaintiff, and we are of opinion that the learned court at Special Term properly disposed of the case, which was one peculiarly within the jurisdiction of the Surrogate’s Court, and should have been submitted to that tribunal for adjustment. The will of Emma Crispe Polhemus gave to her executors the power to sell the real estate, or to mortgage the same, and generally to deal with it in whatever manner should be determined upon by them in carrying out ita purposes. It was a discretionary power, and they were not to be answerable to any one for “mistakes or errors of judgment, or other or except for actual malfeasance”; and the mere allegation of the complaint, filed December 6, 1901, a year and nine months from the issuing of the letters testamentary, “that this plaintiff is, and for months last past has been, prejudiced by the failure of said executors to agree upon a sum for which said lands and premises should be sold pursuant to the terms of said last will and codicil,” does not present a case for a court of equity. In the absence of malfeasance, the plaintiff has no cause of action against the executors. The plaintiff comes into her rights through the will, which she sets up as the foundation of her cause of action; and this will makes the transfer of the property to depend upon the exercise of the powers vested in the executors, who are answerable only for malfeasance. Clearly, in the absence of malfeasance or misconduct which deprived the plaintiff o'f substantial rights, there is no occasion for a court of equity to interfere and make, in effect, a new will for the testatrix. There is nothing in the case to indicate any bad faith on the part of the defendant Horace G. Polhemus ; there is nothing from which the inference may be fairly drawn that the plaintiff will suffer any injury from a mere delay in carrying out the powers vested in the executors; and, as suggested in the case of Haight v. Brisbin, 100 N. Y. 219 , 222, 3 N. E. 74 , there is no doubt that the Surrogate has the power, upon an accounting, to charge the executors with any loss to the estate resulting from negligence or bad faith. “While it is true,” say the court, “that in the first instance that court could not order the sale of the real estate, and take upon -itself the discretion and judgment committed to the executor, it could certainly reach the justice of the case by its power of removal and its authority upon an accounting.” There being no allegation of malfeasance, no suggestion of fraud or collusion on the part of the executors, this action on the part of the plaintiff is merely one for an accounting, which is clearly within the jurisdiction of the

Surrogate’s Court; and the rule is well established that when complete relief can be obtained in a Surrogate’s Court a court of equity will decline to entertain an action against executors. Shorter v. Mackey, 13 App. Div. 20 , 24, 43 N. Y. Supp. 112 , and authorities there cited. This is, in effect, what the learned court at Special Term did; it refused to entertain jurisdiction of a matter which belonged to the jurisdiction of the Surrogate’s Court; and the fact that this was coupled with a direction that, “upon the completion of a sale of the premises mentioned in the complaint within thirty days from the date of entry of this order, all orders heretofore entered in said cause be, and the same are hereby, vacated, and that the complaint be dismissed,” does not affect the question. The court had a right to dismiss the complaint, and if the order, in the effort to make an intelligent disposition of what appears to be a needless controversy, went farther than this, and indicated what was to be expected of reasonable men, it wa’s so far in favor of the appellants that they have no cause to complain. They contend that the property should be sold; the court has indicated to the executors that .they may properly, proceed to sell the same; and the accounting is properly left to the Surrogate’s Court, where all the matters may be adjusted. Why should the plaintiff appeal from this order ? It, in effect, gives the relief prayed for, if the demand for a sale of the real estate is' made in good faith; and it assumes to dispose of the whole group of vexatious orders which have incumbered the record, and tended to obscure the real issue in the case. The court might properly have dismissed the complaint, and ended the matter there, but it has seen fit to go further; and to direct the executors, in effect, to carry out the expressed wishes of the plaintiff and those who are similarly situated; and yet they appeal, for reasons which, however satisfactory to themselves, do not impress this court as having substantial merit.

The judgment appealed from should be affirmed, with costs. All concur; BARTLETT, J., in result.