
    Lucinda M. Monroe, Appellant, v. Sarah J. Turner and Others, Respondents.
    Fourth Department,
    July 12, 1906.
    Executors and administrators — when action in equity for accounting1 barred by prior settlements made by next of kin.
    When the next of kin of a deceased partner being of full age have freely and voluntarily transferred all their interest in the partnership assets to the surviv- . ing partner, without any fraud or concealment, and thereafter have for a valuable consideration settled a suit brought to set aside said transfers as fraudulently induced and have released all claims, and the Statute of Limitations has run against their claims on the estate, an action in equity to open the estate for a further accounting as to such assets will not lie. ,
    When beneficiaries of a trust created by will have by agreement before the termination of the trust partitioned the trust estate among them and executed releases and satisfactions of their claims in full and consented to an entry of a decree settling the trustee's accounts and a division of the whole estate has been made, and no attacks upon a settlement were made during the" lifetime of the trustee, a suit in equity for an accounting will not lie.
    A prior action brought to charge certain Annuities upon real estate of the testator on the ground that the personal estate was exceeded by the debts, in which action it was held that the annuities were not chargeable upon the realties, is res adjudicata upon other legatees served as defendants but who did not appear or answer, but admitted the insufficiency of the personal estate, and bars a further action for an accounting, especially when the excess of the debts over the personal estate is established as a fact.
    Appeal by the plaintiff, Lucinda M. Monroe, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 19th day of July, 1904, upon the decision of the court, rendered after a trial at the Oneida Special Term, dismissing the complaint ujion the merits.
    
      Edwin, H. Risley, for the appellant.
    
      S. M. Lindsley, for the respondents, the administrators of Charles W. Mather and others.
    
      G. C. Morehouse, for the respondent, A. D. Mather & Co.’s Bank.
   Spring, J.:

e The action is in equity, primarily to obtain an accounting of the estates of three decedents, Asaph, Joshua and Wesley Mather, and we will consider them chronologically.

Asaph Mather, a bachelor, died intestate in Utica April 8, 1880, leaving him surviving as his only next of 'kin two brothers, Joshua and Wesley, a sister, Lucinda M. Elliott, and three-children of Seeley B. Mather, a deceased half-brother of Asaph, and all these people were adults at this time.

Asaph and his brother Joshua, for some time before the death of the former, had been engaged as copartners in carrying on a banking office in Utica under the firm name and style of A. D. Mather & Co. These brothers extended their copartnership to several pieces of real estate in Utica and elsewhere, the legal title whereof was principally in Asaph, but they were in fact equal owners. Joshua evidently desired to continue the banking business after the death of Asaph. His nephew, Charles W., a son of Wesley, had been employed in the bank for some time, and in 1880 they formed a copartnership in the banking business, continuing to use the name of A. D. Mather & Co.

In April, and very shortly after the death of Asaph, all the next of kin met with Joshua and Charles, and the latter, who was familiar with the affairs of the copartnership, presented an itemized account to them of all the property owned by Asaph or in which he was a joint owner with his brother Joshua, accompanying the account with a statement of the value of each of these tracts of land. All of these next of kin, after canvassing the situation, agreed to convey and transfer to Joshua all their interest in said real estate and personal property owned by Asaph; and Wesley and the sister each received $20,000 therefor, and the three children of Seeley together received a like sum. This settlement was freely and voluntarily made without any fraud or concealment, and was apparently satisfactory to all concerned, and conveyances of the real estate were subsequently executed conformably to the agreement.

At the same time these next of kin in the transfer of the personal property of Asaph to Joshua expressly waived their right to administer upon the goods and chattels of the intestate, and requested the appointment of Joshua, or some one named by him, as administrator, and requested the surrogate of Oneida county to enter a decree discharging the administrator without notice or citation to said next of kin.

In August, 1880, the children of Seeley Mather complained to Joshua that they had not received a sufficient sum for their share in the property of Asaph, and Joshua paid to the three a further sum of $10,000.' This claim was made at the instigation of Wesley, and while there is no direct proof that he received any further sum at that time, he took the initiative in the settlement, and his admissions indicate that he also received an additional payment.

In 1884, Seth and Devillo Mather, the sons of Seeley, commenced an action to set aside the conveyance and transfers mentioned, alleging that they were fraudulently induced, and that the consideration paid was inadequate. Joshua and Wesley were made defendants. The suit was settled by Joshua paying the plaintiffs $20,000, and the evidence tends to show quite satisfactorily that Wesley received a similar sum. A formal instrument was executed and acknowledged by the children of Seeley, Wesley and others acknowledging full satisfaction of every claim or cause of action against Joshua connected with the estate of Asaph, and consenting that final judgment be entered dismissing the complaint, which was done. , The administrators of Mrs. Elliott commenced a similar action and a like settlement was made with them.

In January, 1888, Charles W. Mather and the defendant Edward Bushinger were duly appointed administrators of the goods, etc., of Asaph by the surrogate of Oneida county, and in April, 1889, a decree was entered judicially settling their accounts.

In the light of these facts the plaintiff must be effectually concluded from any further reopening of the estate of Asaph Mather. The original settlement was apparently fairly made and acceptable to all his next of kin. There is nothing in the evidence warranting the charge of fraud or overreaching, or at least it was a question of fact properly disposed of at the Trial Term.

Beyond that, the claim had long been barred by the Statute of Limitations when this action was commenced in ¡November, 1901. Wesley did not die until September, 1892, and acquiesced in the settlements made, and long before his death the statutory bar had cut off the remedy here sought to be applied, Joshua and Charles Mather wei'e also dead when this action was commenced. The plaintiff delayed her action until after the death of the parties who were familiar with the transactions involved in it, and, consequently, there is, in some instances, an absence of that direct evidence which we might have expected to elucidate the condition of the affairs of Asaph had the action been commenced and tried in the lifetime of these men who were conversant with them.

Wesley Hather, the father of the plaintiff, died in September, 1892, leaving a will in which he named his son, Charles W. Hather, sole executor and trustee. Wesley, before the death of Asaph, had been a farmer in Hew Hartford, near Utica. After the death of his brother he moved into Utica, retaining his farm, but engaging in stock speculation to quite an extent.

The plaintiff has given some proof tending to show that hp was enfeebled mentally, as well as physically, in the later years of his life ; but the weight of the evidence is decidedly in support of the finding of the court to the contrary. By his will and codicil he gave his executor and trustee full authority to manage and dispose of his property and receive the rents and profits and to reinvest the moneys received, and directed the trust for tlie-benefit of his children to continue for five years, and directed a distribution of the avails among his five children, subject, however, to the annual payment to his executor and trustee of §600 in lieu of commissions. Wesley left several pieces of real estate and his personal estate inventoried at $17,145.94. Charles took charge of the property and disposed of some of the real estate, kept an account in the Mather bank to his credit as executor, and seems to have been careful and judicious in the management of the trust committed to him, and accounted for the income and profits accruing from the property.

On July 11, 1894, and long before the expiration of the five-year period for the termination of the trust estate, the devisees agreed to partition among themselves the home farm of Wesley, which was the most valuable tract of the real estate of which he died seized. On January 19, 1895, they executed a-written agreement for a division of the residue of the estate devised by their father, and Charles had already sold and conveyed two or three parcels of the land. Conveyances were subsequently made in compliance with this agreement. On the same day Charles Mather distributed among the beneficiaries of Wesley the personal property of the estate, transferring securities and bonds, and paying money so that each received the one-fiftli portion to which he was entitled. All these legatees executed a release and satisfaction, acknowledging receipt in full from Charles., as executor and trustee, and consenting to the entry of a decree judicially settling his account without notice. This instrument was executed by Albert Mather, the son of Wesley, who has assigned his interest in this estate to the plaintiff, and also by the plaintiff and the other children of Wesley.

Before the execution of this paper a statement of the property was presented to the children, who were together at the time, and the distribution and the condition of the estate were fully discussed and considered, and the adjustment seems to have been honestly made, and the trial court has found the division included “ all and every remaining part of the estate of Wesley Mather, deceased,” and nothing was thereafter received by the executor. Charles Mather lived until November, 1899, and no attack was made upon this settlement during his lifetime. We are satisfied that the adjustment' ought not to be disturbed. In January, 1900, after the death of Charles, the-plaintiff made application to the Surrogate’s Court of Oneida county to be appointed administratrix with the will annexed of her father, but the release and satisfaction were presented in opposition thereto and the application was thereupon dismissed.

After the death of Asaph, as already noted, Joshua and Charles continued the banking business as copartners. In November, 1890, the A. D. Mather & Co.’s bank was incorporated and purchased the bank assets of the copartnership, aggregating $211,627.58, and assumed liabilities amounting to over $111,000. In February, 1892, the assets of the copartnership, other than the banking business, were assigned to Joshua by Charles, and he, at the same time, conveyed to Joshua certain tracts of real estate and the income for life of a valuable building in Utica, the title whereof was in Charles, and Joshua assumed the copartnership liabilities. Joshua died in August, 1893, leaving a will which was admitted to probate and Charles was appointed executor. His will contained several general bequests and he gave and bequeathed to his executor in trust “ such an amount of my personal estate as shall, in his judgment, be sufiicient to yield a net annual income of ($800) eight hundred dollars payable quarterly ” for the plaintiff, and a like annuity to Sarah J. Turner, another niece and'a sister of the plaintiff; and also to two nephews, including Albert Mather, the plaintiff’s assignor.

The personal estate of Joshua amounted to $77,304.96, while his debts aggregated $102,533.77, but he left real estate of the value of more than $200,000 above incumbrances. Charles paid these annuities until his death in 1899, although no part of the personal estate was segregated for that purpose.

The defendant Bushinger was thereafter appointed administrator with the will annexed of Joshua and declined to pay the annuities as the personal property was insufficient to pay the debts of the testator.

In October, 1900, Sarah J. Turner and Nathan Overend, as committee of Warren Mather, one of the annuitants, commenced an action in the Supreme Court, alleging the inadequacy of the personal assets of the testator to pay his debts, and asking that these annuities to them be adjudged a lien upon the real estate of the deceased. The legatees of the deceased, including the plaintiff and Albert Mather, were parties defendant, and answers were interposed on behalf of some of the d'efendants, but the two annuitants named did not answer, probably because their interests were identical with those of the plaintiff. The complaint was dismissed on the merits after a trial at Special Term, and the opinion of that court was adopted in the Appellate Division (Turner v. Mather, 86 App. Div. 172) and also in the Court of Appeals (179 N. Y. 581). The effect of that judgment was to establish that the annuities were not a charge upon the real estate. The basis of that action was the inadequacy of the personal assets to provide a fund for the annuities, and we agree with the conclusion of the trial judge that the decision is res adjudicata as against the plaintiff and Albert Mather on that proposition. They were parties defendant, suffered default, and apparently acquiesced in the allegations of the complaint. Independently of that question, however, the court has found the amount of the personal estate left by Joshua and the amount of his debts, showing that his liabilities exceeded the amount of his personal assets, and the evidence fully sustains that finding.

The pith of this litigation is an attack upon Charles. lie undonbtedly had the confidence of Asaph, Joshua and Wesley Mather. He was employed in the bank, was familiar with their business, and both his father and uncle, Joshua, invested him with plenary authority in the distribution and settlement of their respective estates. Hone of the parties who since the death of Charles have been challenging his integrity, made any assault upon him during his lifetime, and the evidence should be strong and convincing in order to overturn the settlements made by him.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs and disbursements in favor of each respondent appearing by separate attorneys.  