In re the Judicial Settlement of the Account of Emily A. Smith, Trustee Under the Will of Smith

Majority

p. 772

In the Matter of the Judicial Settlement of the Account of Emily A. Smith, Trustee under the Will of Edmund A. Smith, Deceased.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Trustee—Testamentary—Parties to accounting.

Prior to the time for distribution, one of the beneficiaries died, leaving a will which contained no provision for a child bom after she made such will. Held, that such child had an interest in the estate, and that it and the representative of the deceased beneficiary were proper parties to an accounting by the trustee.

Appeal from an order of the surrogate of the county of New York, making the executor of Elsie S. Murphy (formerly Elsie Smith), a daughter of the testator and a beneficiary under his will, party to the voluntary accounting of said trustee, and appointing a special guardian for the infant daughter of said Elsie S- Murphv upon such accounting.

Testator, by his will, directed a division of the residue between his wife and children, the principal not to be paid to the children until they should respectively arrive at the age of thirty. _ One of the daughters, Elsie S. Murphy, died leaving a will which contained no provision for her infant daughter, who was born after the will was executed.

- William A. Boyd (Charles Donohue, of counsel), for app’lt; Frank D. Sturges, for resp’t 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. Mur

p. 773

phy 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 party, 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 S. 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 ten dollars costs and disbursements to the respondent, to be paid by the trustee personally.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.