McCready v. Farmers' Loan & Trust Co. — 53 N.Y. St. Rep. 801

Majority

p. 801

Caroline Amanda McCready, Resp’t, v. The Farmers’ Loan & Trust Company, Trustee, et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.)

Headnote

Trustee—Action tor accounting—Parties.

Where a trustee resigns and thereafter brings an action for an accounting of her actions as trustee, against her successor, the executor of the will of her co-trustee, and defendant resigns as such executor, the administrator with the will annexed is a proper party to the action.

Appeal from order denying motion made by William Whaley, as administrator, etc., to be made a party defendant.

Charles A. Jackson, for app’lt; Seward, Guthrie & Morawetz. (Charles Steele, of counsel), for resp’t.

October 8, 1887, Nathaniel L- McCready died, leaving a widow, the plaintiff in this action, and three children, one of whom was Louisine W. Whaley, the wife of William Whaley. McCready devised and bequeathed a certain portion of his property to trustees for the benefit of his daughter Louisine, the income arising from the use of which was to be paid to her during life: and the principal upon

her death was to be paid to such of her lineal descendants as she might, by her last will, appoint, or, in case of failure to appoint, to her issue. On the 21st of June, 1888, all of the trustees, except the plaintiff in this action and Louisine W. Whaley, resigned, and were discharged, by an order of the from the and thereafter the trust estate

p. 802

held by the plaintiff and said Louisine for the benefit of the lato-, They continued to act in this capacity until September 27, 1889, when the plaintiff resigned; and on the same day an order was entered discharging her from her position as such trustee, and thereupon the Farmers’ Loan & Trust Company was substituted as a trustee in the place and stead of this plaintiff. October 10, 1889, Louisine W. Whaley died, leaving an infant son, Francis Marion Whaley," who is a defendant in this action, and William Whaley, her husband. She left a last will and testament, by which she appointed her said son to receive the principal of the trust estate devised and bequeathed pursuant to the provisions of her father’s will. By her will she nominated her husband as the sole executor thereof. January 7, 1890, her will was probated, but letters testamentary were refused to Whaley; .and thereafter such letters were issued to the Farmers’ Loan & Trust Company, which was also appointed the guardian of the estate of the infant. April 18,1891, this action was begun for an accounting by the plaintiff of her actions as trustee of the trust estate. In November, 1892, the Farmers’ Loan & Trust Company resigned its position as administrator of Mrs. Whaley’s estate, and William Whaley was appointed administrator, with the will annexed, of the estate. In February, 1893, he moved for an order making him a party to-this action for an accounting, which motion was denied.

We think that the representative of a deceased co-trustee is a proper party to an action brought by a trustee for an accounting. Should any question arise whether there had been an improper administration of the estate by the trustees, it might be quite necessary to determine which of the trustees, as between themselves, was liable for the waste. In no other way could the representative of the co-trustee raise the question whether the trustee seeking for an accounting had misapplied any of the trust estate, or whether the devastavit, if any was committed, was the joint act of both trustees, or the act of one. In such an action the liability of all the trustees should be determined. It oftentimes happens that a devastavit has been committed under circumstances which render but one of them liable; and should it appear in, this action that the deceased co-trustee, Louisine Whaley, was liable for devastavit, a judgment should be rendered in accordance with the fact, and the amount of her liability charged against any sum which her representative is entitled to receive from the time of the last payment of income to her until her death. In no other way can a full and complete determination of the rights and liabilities of all the parties be had. The order should be reversed, with ten dollars costs and printing disbursements, and the motion granted, with ten dollars costs.

Van Brunt, E. J., Follett and Earker, JJ., concur.