
    William C. Earle, Respondent, v. William H. Earle and Frank T. Earle, as Executors, etc., of William P. Earle, Deceased, Appellants.
    
      Action by a remainderman during the life tenancy against a trustee, charging a devastavit, is not premature — relief as of the date of the trial will be awarded in an equity action— a judgment determines the issues only between the adverse parties, not between co-defendants.
    
    Morris Earle, by his will, which was admitted to probate May 27, 1859, g.ave certain legacies to his son William 0. Earle upon the latter’s attaining the age of twenty-one years and thirty years, respectively. He also directed that the said son should share equally with his brothers and sisters in the remainder of one-third of the estate which was given to the testator’s widow for life. April 25, 1861, the accounts of the executors were settled by a decree which directed them to distribute the estate according to the will and to turn over to themselves, as trustees, such part thereof as was not then distributable. September 26, 1863, William 0. Earle attained his majority.
    Thereafter, one of his sisters brought an action against the executors and all parties in interest to require the executors to account to all the parties in interest and to compel them to make good a devastavit alleged to have been committed by them. The answer of the executors put in issue the material allegations of the complaint and set up facts calculated to exonerate them from liability, but the only relief they demanded was the dismissal of the complaint. It did not appear that a copy of their answer was served upon any of their co-deféndants. William 0. Earle was served with a copy of the summons in that action, but neglected to appear. The other children served answers praying for the same relief demanded in the complaint.
    The action resulted, on March 20, 1882, in a judgment adjudging that there had been a devastavit of the trust fund and that the executors were liable therefor and should be removed, and that they should pay to the parties in interest who had appeared in the action the amount to which such parties were entitled and turn over the balance to a substituted trustee. No disposition was made of the interest of William C. Earle. On an appeal the judgment was modified so as to permit the trustees to give security for that part of the estate in which the widow had the life interest instead o'f requiring them to make it good at that time.
    December 19, 1883, William O. Earle brought a similar action against the executors. At the time the action was commenced the testator’s widow, who was one of the executors, was alive, but she died prior to the trial of the action. Upon the trial the plaintiff showed a devastavit of that part of the estate in which his mother had a life interest and in which he was entitled to share at her death, as well as a devastavit of other funds. The court adjudged that all of the plaintiff’s rights except his right to share in the one-tliird of the estate in which his mother had a life interest were barred by the Statute of Limitations, and accordingly directed an accounting as to such one-third.
    
      Held, that the action was not prematurely brought, as the plaintiff was entitled, during the lifetime of his mother, to maintain the action to have his rights established, although not then entitled to the corpus of the estate, and that, as he was entitled to some relief when the action was begun, he would be granted such relief as the facts warranted at the time of the trial;
    That the judgment of March 20, 1882, removing the executors and requiring them to account was not a bar to the action;
    That the rule that a judgment determines all the issues presented and which might have been presented, applies only to adverse parties and should not be extended to co-defendants claiming no relief against each other.
    Appeal by the defendants, William H. Earle and Frank T. Earle, as executors, etc., of William P. Earle, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of December, 1901, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Hamilton Odell, for the appellants.
    
      Carlisle Horwood, for the respondent.
   Laughlin, J.:

This action was commenced on the 19th day of December, 1883, against William P. Earle, and on the 19th day of January, 1884, an order was duly granted amending the summons by bringing in Mary E. Earle as a defendant. These defendants were the executor and executrix and trustees under the will of Morris Earle, deceased, the father of the plaintiff. The will was admitted to probate and letters testamentary issued thereon on the 27th day of May, 1859. There were originally three executors, but the third -executor removed from the State, and his letters were revoked prior to the commencement of this action.

The complaint alleges that the defendants neglected their duties as such executors and trustees and suffered and" allowed the trust estate to be mismanaged and dissipated; and the action is brought to require them to account and to make good the losses thus sustained by the estate. The plaintiff was a beneficiary under the will and entitled thereunder to certain legacies upon his becoming twenty-one years of age and to certain other legacies upon his attaining the age of thirty years. He was also entitled to share equally with his brothers and sisters in the remainder of one-third of the estate of his father of which his mother was given the life use. The said Mary E. Earle was the testator’s widow and the plaintiff’s mother. She died since the commencement of this action, but before the trial. The accounts of the executors were judicially settled by a decree of the Surrogate’s Court on the 25th day of April, 1861, and they were therein directed to distribute the estate according to the will and turn over to themselves as trustees such part thereof as was not then distributable. The plaintiff' became twenty-one years of age on the 26th day of September, 1863.

The trial court decided that all of the plaintiff’s claims under the will and under said decree, except his right to share in the one-third of the estate of which his mother had the life use, were barred by the Statute of Limitations, but that his right to share in said last-mentioned part of the estate has been preserved and an accounting was accordingly decreed. The plaintiff has not ajrpealed and it is conceded that his only right now is to participate in the distribution of the one-third of the estate which was left to his mother for life. Since the commencement of the action William P. Earle died audit has been revived against his executors who are the sole appellants.

It is contended by the appellants that the action was prematurely brought, inasmuch as the plaintiff’s mother was living at the time of its commencement, and all of his claims, except the right to-participate in the estate after her death, were barred by the Statute-of Limitations. It appears that by a final judgment of the Superior Court of the city of Hew York, in an action brought by the plaintiff’s sister against the executors and all parties in interest, the-executors were removed from office on the 20th day of March, 1882. The removed executor and executrix never accounted as to the plaintiff. The plaintiff not only showed a devastavit of other-funds, but also of that part- of the estate of which his mother had a. life use and in which he was entitled to share at her death. He was entitled to maintain this action to have his rights established,, even though at the time of the commencement of the action he was not entitled to possession of the corpus of the estate; and being entitled to some relief when the action was begun, it being a suit in equity, he was entitled to such relief as the facts warranted at the time of trial.

The judgment of March '20, 1882, removing the executors and requiring them to account, is pleaded as a bar to this action. This action was brought upon the same facts and for similar relief. The plaintiff was made a defendant and served with a summons in that action but he failed to appear. The complaint briefly and correctly alleged his interest. A demand was made in the prayer for relief that the executors account generally to all parties in interest. The answer of the executors put in issue the material allegations of the complaint and set up facts calculated to exonerate them from liability, but the only relief they demanded was a dismissal of the complaint. It does not appear that their answer was served on any of the defendants. The other children of the testator interposed answers praying for the same relief as that demanded in the complaint. The court decided in that action that there had been a devastavit of the trust funds; that the executor and executrix were liable; that they should be removed ; that the United States Trust Company be appointed trustee in their place, and that the trustees pay to the parties in interest who had appeared in the action the amount to-which they were then entitled and turn over the balance to said trust company, but no disposition was made of the interest of this plaintiff. On appeal the judgment was modified so as to permit the trustees to-give security for that part of the estate of which the widow had the life use instead of requiring them to make it good at that time.

The plaintiff and defendants were noú adverse parties in the former action. The rule that a judgment determines all the issues presented and which might have been presented applies only to adverse parties. It should not be extended to co-defendants claiming no relief against each other. If the trustees had desired to have the plaintiff’s rights disposed of in the former action, they should have drawn the court’s attention to the matter, in order that proper provisions might have been incorporated in the decision and judgment. The Code of Civil Procedure provides that where it is sought to have the judgment determine the ultimate rights between defendants, the defendants who require it must demand such relief in their answers and serve copies of the same on their co-defendants. (Code Civ. Proc. § 521.) Section 1204 of the Code of Civil Procedure provides for determining the rights of the defendants, as between themselves, but this section is to be construed with section 521 which provides for the service of copies of the'answers upon co-defendants. Section 1207 -of the Code of Civil Procedure provides that where the defendant has not answered, the plaintiff shall not recover a more favorable judgment than that demanded in the complaint. By analogy at least, this would prohibit a more favorable judgment to a co-defendant than that demanded by him; and, as has been seen, the only -demand for relief by the trustees was for a dismissal of the complaint. If the trustees had obtained the relief which they demanded, viz., dismissal of the complaint, that would not bar this action unless the judgment expressly provided that the' dismissal was upon the merits. (Code Civ. Proc. § 1209.)

The issues were tried before the late Justice Smyth, who died before making a decision. The case was then brought to trial at 'Special Term and the testimony taken before Justice Smyth was stipulated. The trial court then found the amount due to the plaintiff, including principal and interest, as of May 16, 1900, that being the date of the trial before Justice Smyth. Interest was then computed upon this amount down to the date of the decision. The interest found due by the decision on May 16, 1900, was $3,687.22. •Compounding interest on this interest from May 16,1900, to December 5, 1901, was erroneous, and the judgment should be modified by reducing it by the interest on that sum for the period specified. As thus modified, the judgment should be affirmed, without costs.

O’Brien, Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment modified as directed in opinion, and as modified, affirmed, without costs.  