
    In the Matter of the Estate of James W. Ranney, Deceased. Nellie K. Reed and George H. Bottum, as Executors, and Nellie K. Reed, as Trustee, under the Last Will and Testament of James W. Ranney, Deceased, Appellants; William C. W. Child, as Committee, etc., of Elijah F. Clark, an Incompetent Person, Respondent.
    First Department,
    June 3, 1910.
    Surrogate’s Court—testamentary trustee — accounting — effect of action in Supreme Court for construction of will.
    A testamentary trustee should not be compelled to account in the Surrogate’s Court where the question as to whether the petitioner has such interest in the trust estate as entitles her to-an accounting depends upon the construction of the will and the action for a construction is pending in the Supreme Court.
    Appeal by Nellie K. Reed, as executrix and trustee, etc., and another, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 17th day of March, 1910, directing the appellants to account.
    
      Sumner JB. Stiles of counsel {James R. Turner with.him on the brief], for the appellants.
    
      William U. Kinnear, for the respondent.
   Clarke, J.:

James W. Ranney died February 24, 1889, leaving a last will and testament, which was duly admitted to probate March 15, 1889. His daughter, Nellie II. Ranney, was appointed executrix, and George H. Bottum executor, and they both qualified. It appears that they duly filed an inventory of said estate in March, 1890, duly advertised for claims and duly paid all the debts of the said estate prior to the year 1892; and duly paid all the legacies on or before the 1st of January, 1893, with the exception of about $250, which they retained for any outstanding claim, which said amount was finally paid and distributed to the residuary legatees under the said will upwards of eleven years ago, and all the beneficiaries.under said will fully acquiesced in the full settlement of the estate of the deceased out of court and noiie of the beneficiaries under said will has ever made any objection thereto.

The petition for the accounting was made by William O. W. Child, who was appointed on the 23d day of July, 1909, committee of the person and property of Elijah F. Clark,-an incompetent person, the son of Emma G. Clark and the grandson of the decedent, Dr. Eanney. It appears that the said Elijah F. Clark came of age on the 5th day of April, 1903, and that more than .six years elapsed thereafter before the committee of liis person and estate was appointed.

We are of opinion that upon these facts the surrogate should not compel the executrix and executor of this 'estate to account.

The will, inter alia, ■ provided as follows: “I give, devise and bequeath to my said daughter, Nellie K. Eanney, my house.and the land appurtenant thereto in Westfield,.in the County of Union, in the. State of New Jersey;. also fourteen lots, of land situate on Springfield Avenue and South Twelfth Street, and eight lots on Fairmount Avenue, all in the City of Newark, in the County of Essex, in the ’ State of New Jersey ; also the remaining twó-thirds of - the moneys which I may have in bank, and the remaining two-thirds of the avails of all outstanding book accounts and debts due me after the payment thereout of the sum of Five hundred dollars to my ever-faithful servant, Mary McGowrie, in "the event that she survives me, in trust, nevertheless, to receive the rents and profits of- the said lands and premises, and apply them to- the use of my daughter, Henrietta H. Eanney, during her life; and upon her death leaving children or descendants, to divide the same equally among such children and -descendants, the child or children of any of her children' who may have died to be entitled to the share of his dr their parent who was a child of my said daughter,- Henrietta H. Eanney; and in the event that my said daughter, Henrietta H. Eanney, shall die not leaving any children or descendants, it is my will that the property which is the subject of this trust, be divided equally between-my said daughter, Nellie K. Eanney^ or if she shall have died, her children or descendants, the child of children of .any child of hers, who may -have died, -to have the share-of his, her or their.parent, who was h child of the said Nellie K. Eanney, and tlie-childfen and descendants then living of tny daughter, Emma Gr. Clark, in the same way.”

It appears that Henrietta IT. Eanney, the cestui que .trust, died in Ndvember, 1908, without leaving.any children or descendants ;• time Emma G. Clark,- the mother of •'Elijah F. Clark; the incompetent, whose committee is the petitioner,--is living.

The order appealed from requires Nellie K. Beed, formerly Nellie K. Banney, to file an account of her proceedings as trustee. The right of the petitioner to compel such an accounting depends upon his having a vested interest in the trust estate. The determination of this question requires a construction of the will of Dr. Banney for the purpose oí determining whether it was his intention, upon the termination oí the trusts, that the corpus thereof should be divided equally between his daughter, Nellie K. Banney, and the children and descendants then living of his daughter, Emma Gr. Clark, to the exclusion of his. said daughter, Emma Gr. Clark, if living at that time.

It appears that there have been negotiations for the purpose of submitting the question of the proper construction of said will to the Supreme Court, and that at the time of the- institution of this proceeding a summons and complaint in such an action had been prepared for the purpose of obtaining a judicial construction of the said provisions of the will, and that an application had been made for leave to join the said incompetent and his said committee as defendants, and that said application had been granted by the Supreme Court, and that the attorney for the said committee was aware of said steps at the time that this proceeding was instituted.

We think that as the right of the petitioner to institute these proceedings depends upon a construction of a clause in the will which is not free from doubt, and that as proper steps had been taken in the Supreme Court for the construction of the will, where all interested could be made parties and be heard, this proceeding for an accounting should not proceed until it shall have been judicially determined in such action that the petitioner has a right to compel such accounting.

The order appealed from should, therefore, be reversed, without prejudice, however, to a renewal of the motion for an accounting if it should be determined in the action to construe the will that the petitioner has a vested interest in the trust estate, with costs to the appellants against the respondents.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to appellants, with leave to renew as stated in opinion. ■ Settle order on notice.  