In re Taggard — 41 N.Y. St. Rep. 796

Majority

p. 796

In the Matter of the Application of Emma J. Taggard to compel Henry N. Hewitt, Ex’r, to account.

(Supreme Court, General Term, Third Department,

Filed November 30, 1891.)

Headnote

Release—Testamentary trustee—Accouhting.

A testator devised to his executors, of whom the appellant is survivor, certain real and personal property, including a hotel, in trust, to receive the rents and nrofits, and pay two-thirds of the income to the petitioner, his widow, and. in case of fire, to collect the insurance, sell the land, and - aPPly the income as before. In 1878 the petitioner and others executed an

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instrument by which the appellant, as executor, stated that he transferred to the beneficiaries the possession of said estate, and they released him as executor. In 1882 the hotel burned. Upon this proceeding, in 1890, to compel an account, the petition alleged, and the answer did not deny that the appellant had income of the estate in his hands. Held, that as the appellant was testamentary trustee, as well as executor, said release was not a bar. and had effect ooly up to its date; and that the executor must render an intermediate account showing the funds of the estate now in his hands.

Appeal from an order of the surrogate of Essex county, requiring appellant to file an intermediate account of his proceedings as trustee under the will of James W. Taggard, deceased.

The will of James W. Taggard was admitted to probate February 7, 1867. The appellant since 1872 has been the sole surviving executor thereof. The testator devised and bequeathed to his executors certain real and personal property, including a hotel and its furniture, in trust, to receive the rents and profits thereof, .and pay two-thirds of the same to the petitioner during her life, and, in case the same should be destroyed by fire, to collect the insurance, sell the land, invest the proceeds, and apply the income thereof in like manner. Mo inventory was ever filed, or judicial .settlement had. The petition, in addition to the above facts, alleges that the hotel was destroyed by fire in August, 1882, and •alleges that the appellant holds in his hands a large amount of money of the rents and income of the estate, no part of which has been paid to her. The petitioner prayed that the appellant account both as executor and testamentary trustee, and be cited to show cause why he should not pay over, and for other proper relief.

The appellant filed an answer alleging full administration and settlement of the estate, and payment by him in full more than twelve years prior to this proceeding, and the execution by the petitioner September 2, 1878, and delivery to the appellant of a full and absolute discharge. The answer did not deny that there were moneys in his hands. It set up various statutes of limitation. Upon the hearing, the will of the testator, and also the alleged discharge, were put in evidence.

The following is said release:

“ At request of Mrs. Emma Taggard and Mrs. Cordelia F. Taggard, guardian of person and estate of Mary D. Taggard, and as a means of their receiving the rents and incomes from the estate of J. W. Taggard, deceased, under and by virtue of his will, the undersigned, sole surviving executor thereof, hereby transfers the possession of said estate and leases of said property, and the rents due and to grow due thereon, to be collected by them, and applied ' according to the terms of said will. And said executor hereby covenants that the estate is unincumbered, that he has discharged and will discharge all debts of every kind, except for recent repairs on the Sampson store and photograph gallery over it. And said executor hereby releases said estate from all claims .and demands for commissions, attorneys’ fees or otherwise, and agrees on request to render said Mrs. Emma and Cordelia Taggard personal services in the affairs of the estate during the life of the former without other compensation than she may choose to make.

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And the said Emma for herself, and the said Cordelia as guardian, hereby covenants and agrees to save said executor harmless-from all claims on account of the rents and income of said estate! And that this transfer shall be received as a full performance o. his duties under the will and accepted as such, and he is hereby discharged of all liability.

Dated 2nd September, 1878.

“H. H. Hewitt,

“ Mrs. Emma Taggard,

“ Cordelia E. Taggard.”

The surrogate denied the application that the appellant account and pay over as executor, but ordered that -he file an intermediate' account of his proceedings as testamentary trustee. The trustee appeals.

R. L. Hand, for app’lt; F. A. Rowe, for resp’t.

This case differs from Matter of Wagner, 119 N. Y., 28 ; 28 St. Rep., 266 , in that the instrument or release given by the legatees and beneficiaries in that case to the executors purported to be, and in the nature of the case was, in legal effect, a, full discharge of the executor from his liability as such; whereas in this case the executor was also testamentary trustee, and the moneys coming to his hands were of the income of the property, and in case of fire from the insurance, and from sales, and as he had the power to receive moneys after the execution of the release, that release could only be considered as a discharge of the moneys he had theretofore received, and in no way a discharge of such as he might thereafter receive.

If he has received any moneys since September 2, 1878, he ought to account for them.

The petition doés not clearly state that he has received any moneys since that date, but it is alleged that the hotel was destroyed by fire in August, 1882. It, therefore, became the duty of the testamentary trustee to collect the insurance and sell the land, and invest the proceeds and pay to the petitioner two-thirds of the income thereof. It is not stated what was done, but the petition alleges that the trustee holds in his hands a large amount of money, the rents and income of said estate, belonging to the petitioner. The trustee answers and alleges the settlement of September 2, 1878, but does not deny that he now has money in his hands belonging to the petitioner.

We think the surrogate properly ordered the appellant, as testamentary trustee, to file an intermediate account. The order is-authorized by Code Civ. Pro., §§ 2723, 2803. Its purpose is to-furnish information concerning the estate to those who are entitled to apply for it. Id., § 2514, subd. 9. It is a-discretionary order-. In view of the interest of the petitioner and her lack of exact knowledge of the proceedings of the trustee, the discretion seems-to have been properly exercised by the surrogate. The account as first rendered will bind no one but the trustee, and as he is to-make it, the presumption is that he will do himself no injustice. It is true that the petitioner did not in terms apply for this order,,

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but she applied for such an order as should be just, and the surrogate granted, as he ought, the order which he deemed most ■appropriate. Matter of Odell, 52 Hun, 88 ; 22 St. Rep., 498 .

Thus far we assume the instrument of September 2, 1878, to be genuine. The appeal book recites that it “ was put in evidence,” and that implies proof or admission of its execution. But if any further proceeding in the case requires the determination of the question of the execution or delivery of this instrument, it will be proper for the surrogate to determine it. The jurisdiction which enables him to determine its genuineness extends also to its non-genuineness. Ho equitable jurisdiction is involved, but the mere determination of a fact material to the proper exercise of his statutory jurisdiction.

With respect to the statute of limitations, we cannot know until the account is before us whether there will be any occasion to consider its application.

The order should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.