
    Ann Eliza Wilcox, App’lt, v. Charles J. Quinby, Ex’r, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Trustee—Removal—Pleading.
    A complaint in an action to remove a trustee alleging a devise to executors in trust to divide into portions and apply the same to the support of plaintiff and others; that the trustee, who was one of the beneficiaries, took possession and has retained the same undivided over twenty years, and that hut an insignificant part of the income has been paid to plaintiff, states facts sufficient to constitute a cause of action.
    Appeal from judgment entered on decision dismissing the complaint on the ground that it does not state facts constituting a cause of action.
    
      James Flynn (F. II. Benn, of counsel), for app’lt; M. M. Silliman ( Wm. P. Fiero, of counsel), for resp’*
   Barnard, P. J.

In April, 1869, Daniel Quinby died leaving-a last will and testament, which was admitted to probate in Westchester county in May, 1869. The will contained provisions for the support of the testator’s wife during her life; but as she died before the testator, those provisions are immaterial. At the death of the wife the entire estate was directed to be divided in three equal parts; one of these parts was to be applied to the support of the testator’s three children for life, with remainder to their children. Challes J. Quinby is one of them and he is also one of the executors.

The complaint avers that the executor Quinby, with the acquiescence and. permission of his co-executor, took immediate possession of land and personal property of deceased, and that but an insignificant part of the income has been paid over to the plaintiff. That the executor Quinby either has the income of the estate or has applied it to his own use. The complaint asks for the removal of the executor and trustee, and that a new trustee be appointed; that the directions in the will be carried out. The executor made answer to the complaint, but the complaint was dismissed because it did not state facts sufficient to make a cause of action.

If the complaint is true the plaintiff ought to have some relief. The executors have retained the estate undivided over twenty years, and one executor has, with the assent of his associates, with intent to defraud the other heirs, taken possession of the entire estate and kept it for his own purpose. There may be an absence of proof on the trial, but there is none of averment which should permit a party to offer evidence.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurs; Dykman, J., not sitting.  