In re Ayrault

also alleged that partial distributions of the residuary estate had already been made by him and his predecessor in the trust, from time to time, on the theory, as they had been advised, that the several interests in that estate did not vest until actual division was made, and that if a legatee had died before the time of any division the share he would have taken if living did not pass to his personal representatives, but to his descendants, if he left any, and if not then to the other residuary legatees. He also alleged that grave questions had arisen in regard to the proper construction of that clause of the will (§ 25) which provided for the disposition of the residuary estate, viz. whether such estate vested absolutely in the residuary legatees at the death of the testator, or (as to each of the funds which fell into it) at the time it so fell in, or at'the time of actual division; and in respect to these questions he asked for a construction of § 25 of the will, and for the directions of the court tosenable him to distribute the estate remaining in his hands among those entitled to receive it. He prayed for a final accounting by himself as trustee, to be taken and finally settled by the court, and that he be finally discharged from duty and responsibility as such trustee. All the heirs at law and next of kin of Mary Ayrault, including the petitioner in his individual capacity, were made parties defendant to, that action, and all appeared therein, and litigated the issues raised by the pleadings. The controversy terminated in the court of appeals, where it was held that the gift of the residuary estate vested in the designated legatees at the time of the testator’s death, and that distribution of the fund remaining in the hands of the trustee should be made upon that basis; but it was adjudged that all payments theretofore made by the several trustees of the residuary estate, upon their several accountings and settlements to the several legatees and distributees, should be confirmed as final and conclusive. The matter was then sent to a referee to ascertain and-report who were the persons entitled to share the residuary estate under the decision of the court of appeals, and the share of each. He reported the share of Mary Ayrault as the one thirty-fourth, and that it was payable to her administrator to be appointed, and judgment was entered on the report, directing distribution in accordance therewith. That judgment was entered August 9, 1893. Letters of administration were granted to the petitioner herein September 4, 1893. He filed his petition herein November 3,, 1893, in which he prayed for an accounting de novo by the same trustee of all the moneys that have come into his hands, belonging to the estate of Mary Ayrault, under the will of Allen Ayrault, deceased. The judgment of the supreme court, above described, is still in force, unexecuted, no distribution having yet been made in accordance with its direction.

We think that the foregoing statement justifies the conclusion of law of the learned surrogate to the effect that, by the action so brought by the trustee in the supreme court, that court obtained full and complete jurisdiction over all the parties to said action, and over the residuary estate of Allen Ayrault, deceased, of which the said Bowditch is trustee, to make a full and complete-deter

mination, disposition, and distribution thereof among the various parties, entitled to share in such distribution, and still retains jurisdiction thereof, and accordingly that the petition in this proceeding must be dismissed. The jurisdiction of the supreme court, being first obtained, was necessarily exclusive. It is impossible that two tribunals should entertain jurisdiction of the administration and settlement of the same estate at the same time,—a proposition which seems to require no citation of authorities in its support. But to the application of this proposition the petitioner objects that he was not made a party, in his representative capacity, to the action in the supreme court. There seems to us to be two answers to this objection—First, that it was necessary that he should have been a party for the complete adjudication of all the rights of those whom he represents, since all those were themselves parties in their own person, and litigated all the issues involved in their own behalf; and, second, that if it were necessary for him to be a party to that action, in order to obtain the rights of those whom he represents, he may still become such by intervening therein. The jurisdiction of that court was not exhausted by the rendition of its judgment, but continues until that judgment is executed. Wayman v. Southard, 10 Wheat. 23 ; Wegman v. Childs, 41 N. Y. 159 . It is not yet too late for the petitioner if he can satisfy the supreme court that he represents rights and interests in connection with the settlement of the estate in controversy, which have not had their day in court, to obtain an order permitting him to intervene and obtain such a modification of the judgment as those rights and interests may require. And we think the other answer to the objection is equally conclusive. It is not pretended that any rights of creditors are involved in the controversy, as after the lapse of 16 years from the death of the intestate there cannot be. The petitioner therefore stands solely as the trustee for the next of kin of Mary Ayrault. Ledyard v. Bull, 119 N. Y. 62 , 72; 28 St. Rep. 551 . But all the next of kin, including the petitioner himself, in his individual capacity, were parties to the litigation, and are bound by the judgment. Shall their mere representative be permitted to assail in their behalf an adjudication which is completely binding upon them, and that, too, collaterally, and in another tribunal of inferior jurisdiction? We think the negative answer to this question is compelled by many obvious considerations, and that the lately constituted trustee of the next of kin of said Mary Ayrault must either be content to abide with them the adjudication of their rights already made, or seek to intervene in the same action in which that adj udication was rendered, and there to obtain a modification of the judgment complained of. The decree of the surrogate should be affirmed, with costs.

All concur.

So ordered.