
    Elwood Mildeberger, as Substituted Trustee, under the Last Will and Testament of John F. Kellers, Late of the County of New York, Deceased, Respondent, v. Mary C. Franklin, Appellant, Impleaded with Ruford Franklin (Formerly Known as James R. Franklin, Jr.), Defendant.
    First Department,
    March 19, 1909.
    Court—accounting by trustee —jurisdiction of Supreme Court — question cannot be raised by demurrer.
    The Supreme Court has jurisdiction to settle a trustee’s accounts and to determine the terms of and enforce a trust of real or personal property.
    A trustee may maintain a suit in equity for the settlement of his accounts.
    'The objection that the Supreme Court will not entertain a suit to settle the accounts of a testamentary trustee, but will leave them to be settled before the surrogate in the absence of special circumstances requiring the exercise of the powers of a court of equity, cannot be taken by demurrer.
    The question as to whether the Supreme Court will take jurisdiction should be determined by the court when the cause is brought to trial.
    Appeal by the defendant, Mary O. Franklin, from an interlocutory judgment of the Supreme. Court in favor of the plaintiff. entered in the office of the clerk of the county of Hew York on the 14th day of July, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the said defendant’s demurrer to the complaint. ■
    
      McDougall Hawkes, for the appellant.
    
      Theodore H. Silkman, for the respondent.
   Ingraham, J. :

The complaint alleges that . John F. Kellers of the city of Hew York died in 1869, leaving a last will and testament and a codicil thereto, copies of which are inserted in the complaint. It was then alleged that one of the executors named in the will and codicil died and the other resigned, and the plaintiff was appointed substituted trustee under the said will; that the estate consisted of personal and real property located in .the city of . Hew York. The complaint further alleges that the life beneficiary has been in possession of the real property and received the rents and profits thereof and has also received the interest on the personal property; that there has been no settlement of the plaintiff’s accounts and he, "therefore, demands judgment that his accounts he taken and stated and a decree entered therein judicially settling his accounts, and for other and further relief. To that complaint the defendant, the life beneficiary demurred upon three grounds: First, that the complaint does not state facts sufficient to constitute a cause of action •; second, that causes of action have been impropérly united; and, third, that the plaintiff as substituted • trustee has not legal capacity to sue. This demurrer was overruled arid the defendant appeals.

It is quite clear. that the demurrer cannot be sustained upon either of the grounds stated.- The complaint alleges all the facts essential for a decree judicially settling the trustee’s accounts; the Supreme Court has jurisdiction to settle a trustee’s accounts and determine the terms of and enforce a trust of either real or personal property; and a trustee has legal capacity to maintain an action in equity for the settlement of his accounts. The defendant, however, seeks to sustain this demurrer upon the ground that the Supreme Court will not entertain an action to settle a testamentary trustee’s accounts, but will leave the same to be settled before the surrogate except where special circumstances are alleged requiring the exercise of the powers of a court of equity. But this objection cannot be taken by demurrer. The grounds of demurrer to a complaint are specified in section 488 of the Code of Civil Procedure, and it is not there prescribed as a ground of demurrer that the Supreme Court, having undoubted jurisdiction over' trustees and their accounts, should refuse to entertain such jurisdiction because the trustees’ accounts can be more expeditiously and economically settled by the surrogate. We have held that in an ordinary action to settle the accounts of a testamentary trustee where no special facts are alleged which render the interposition of a court of equity necessary or advantageous to the parties the accounts of the trustee should be settled by the surrogate. (Post v. Ingraham, 122 App. Div. 138.) But the question whether the Supreme Court would take jurisdiction should properly be determined by the court when the action is brought on for trial. We do not determine in this case whether upon the facts alleged the intervention of the Supreme Court is necessary for the protection of the "parties to this action. There is presented a question as to whether any trust is created or whether, the testamentary disposition of the .testator’s property granted a life estate for the life of the life beneficiary with a remainder over, and by allowing the life beneficiary to collect the rents of the real property and the income of the personal property the parties seem to have acted upon such a construction of the will, ' and the further question is also presented as to the judgment that would be proper to protect the parties to the action, both in respect .to the past and the future. But these questions should, I think, be left to be disposed of by the Special Term when the case is tried.

It follows that the judgment appealed from is affirmed, with costs, with leave to the defendant to withdraw the . demurrer and answer within twenty days upon payment of costs in this court and in the court below.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.  