
    Edward L. Coster and Henry Keale, as Executors, etc., of Francis L. Lowndes, Deceased, Appellants, v. Edward L. Coster and Others, Appellants, Impleaded with Charles O. Maas, Respondent.
    First Department,
    April 10, 1908.
    Judgment, cancellation of—trustee — appointment.
    Where, on an action being brought to settle the accounts of a deceased sole testamentary trustee and for the appointment of a new trustee, a referee is appointed to hear and determine the issues, who duly reports his findings to the court, a judgment subsequently entered which does not confirm his report, or adjudicate in any manner as to the accounts of the deceased trustee, or discharge his estate from liability on the turning over of such property as may have been in his hands at his death, and which improperly directs the conveyance of the trust property to a new trustee, will be set aside on the motion cf all parties, the plaintiff having denied that the same was entered on his motion.
    The court is not bound to appoint the substituted trustee named by a referee, for he is not appointed to determine that issue. Nor are the wishes of the parties controlling.
    Appeal by the plaintiffs, Edward L. Coster and another, as executors, etc., and by the defendants, Edward L. Coster and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1907, denying the appellants’ motion to vacate a certain judgment in favor of the defendant Charles O. Maas.
    
      Austen G. Fox, for the plaintiffs and defendant Edward L. Coster, appellants.
    
      Frederick H. Man, for the infant appellants, Josephine Lurman Coster and others.
    
      Joseph H. Tuttle, for the respondent.
   Houghton, J.:

Plaintiffs’ testator was the sole testamentary trustee under the will of Margaret Coster, deceased. This action was brought by them as executors of such deceased trustee to have his accounts settled and allowed, and for the appointment of a new trustee, and all parties interested were made defendants. Edward L. Coster, one of the plaintiffs, in his representative capacity, was made defendant individually. The other defendants are infants, for whom a guardian ad litem was appointed, who, by his answer, simply submitted the rights of the infants to the court. On the cause coming on for trial the court, by consent, appointed a referee to hear and determine the issues of law and fact. The decision of the referee was in the form of a report to the court, and contained findings of fact and conclusions of law settling and adjusting the accounts of the deceased trustee, and apportioning certain expenditures between principal and income, and, in addition, named the person who should be appointed trustee.

On this report the plaintiffs’ attorneys moved for final judgment, and for an extra allowance in addition to costs. The papers were submitted to the court in September, 1907, and thereafter, and in the latter part of October, there was found entered in the clerk’s office the judgment which all parties to this action, both plaintiff and defendant, moved to set aside.

This judgment recites that it was granted on motion of plaintiffs’ attorneys. They deny that it was granted on their motion, or that they knew of its, provisions until they found it upon the files of the clerk of the court. The judgment does not confirm the report of the referee, nor adjudicate in any manner as to the accounts of the desesaed trustee, nor discharge his estate from liability upon turning over such property as may have been in his hands upon his death, nor does it make any provision as to costs of any of the parties. It does, however, appoint the respondent trustee, and directs that proper deeds shall be executed to convey to him the real property embraced in the trust.

The motion to set aside the judgment was denied by the learned Special Term on the theory that passing upon the merits would be a virtual review of the action of one of his associates.

We think not, and it is perfectly manifest that such a judgment should not be permitted to stand as the judgment in this action. It does not adjudicate respecting the accounts of the deceased trustee, which was the principal object of the action, and it improperly directs the conveyance of the real property embraced in the trust to the new trustee. There is no person who can convey, nor is there any propriety in a conveyance, because a substituted trustee takes title by virtue of his appointment, and not through any conveyance.

The appellants make the novel claim that the court was bound to appoint as trustee the person the referee had said was a proper one to appoint, on the theory that the order of reference was to hear and determine, and, therefore, the judgment must follow the decision. Of course, this is not so. Ho such issue could be referred for final determination. While the court is not bound to follow the wishes of parties in appointing a trustee, it is proper that he should listen to them and consult their interests in selecting a proper person for the position.

The respondent, the new trustee, takes no antagonistic position on this appeal. On his appointment he qualified according to the requirements of the judgment. If the judgment is proper he is willing to act, and if it must be set aside he makes no complaint. In any proceeding which shall be hereafter had, he should be protected, at least, to the extent of the disbursements which he has in good faith made or incurred.

The judgment in its entirety should be set aside. The matter will then stand for an application for final judgment upon the referee’s report.

The order is reversed, without costs, and the motion granted.

Ingraham, Laughlin and Clarke, JJ., concurred; Scott, J., concurred in result.

Order reversed, without costs, and motion granted.  