
    In the Matter of the Estate of Charlotte E. Jenkins, Deceased. Margaret G. Kopper and Sarah R. Jenkins, Appellants; E. Caroline Capen, Respondent.
    First Department,
    May 21, 1909.
    Executors and administrators — accounting after discharge of executor denied —judgment in partition — when res adjudicata as to extent of trust and rights of parties—will — unlawful accumulation — court — surrogate cannot review determination of Supreme Court.
    After an executrix has duly accounted and been discharged, a further accounting will not be ordered where it is not alleged that further sums came into her hands as executrix and her allegation that she has made full accounting is not denied. •
    
      Where an action of partition required the construction of a will and the judgment necessarily determined that no trust was created, the decision is binding and conclusive upon the parties. It is conclusive not only as to matters actually determined, but as to every other matter which the parties might have litigated and decided as incident to or essentially connected with the subject-matter of the litigation, either as matter of claim or defense.
    A party who was an executrix of the will under construction and who, by virtue of a judgment of partition, has received an income from a portion of the estate as life tenant, holds the same in her own right and not as a trustee, and cannot ■ be compelled to account therefor.
    A testamentary provision that from the rents of the estate a certain sum per ■ annum be paid toward the satisfaction of mortgages, is void as an unlawful accumulation contrary to the statute forbidding accumulations beyond minority. Being void, such direction for accumulation will be treated as if stricken from the will.
    Where, in a proceeding under chapter 53 of the Laws of 1877, the Supreme Court has,authorized the execution of a mortgage and directed that all the pro- ' ceeds thereof be paid to a guardian appointed in such proceeding and the guardian has accounted to the Supreme Court, the Surrogate’s Court has no jurisdiction to review the proceeding on an application to compel the execu- . trix who received no portion of the fund to account.
    Appeal by Margaret G. Kopper and another from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 13th day of November, 1908.
    
      Allen Wardwell, for the appellant Margaret G. Kopper.
    
      Howard Van Sinderen of counsel [Bangs & Van. Sinderen, attorneys], for the appellant Sarah R. Jenkins.
    
      William F. MacRae of counsel [Ritch, Woodford, Bovee & Butcher, attorneys], for the respondent.
   Clarke, J.:

Appeal from an order of the surrogate requiring Margaret G. Kopper and Sarah E. Jenkins, as executrices and trustees of the estate of Charlotte E. Jenkins, deceased, to file an account of their proceedings as such executrices and trustees from the date of the last. accounting by Margaret G. Kopper. The petitioner is the granddaughter of Charlotte E. Jenkins, and the daughter of Margaret G. Kopper. Charlotte E. Jenkins died December 17, 1862, leaving a last will and codicil which was duly probated. The 4th paragraph of the will provided as follows : I give and devise to my husband the one-fourth part of the net rents, issues and profits of my real estate, subject .to the provisions hereinafter contained, during his natural life and so long as he remains unmarried, and no longer.” Such life interest was terminated by his remarriage in 1866 “Fifth: I give and devise to each of my three children, one equal fourth, and after the decease of their father, one equal third part of the net rents, issues and profits of my real estate, to have and to hold each for and during the term of his or her natural life, with remainder in fee as to the share of each after his or her death, to his or her children or issue; and in case of the death of any without issue to the survivors or survivor and issue of any deceased.”

One of the three children provided for in said paragraph of the will, Mary 0. Jenkins, died in 1869, without issue, leaving Margaret Gr. Kopper and Sarah B. Jenkins, the appellants in this proceeding, as the only surviving .children of the testatrix. ■

The executors of the estate were named in the codicil executed November 18,1862, and were the Bev. George B. Draper and the two daughters of the testatrix, Margaret G. Jenkins, now Mrs. Margaret G. Kopper, and Sarah B. Jenkins. The Bev. George B. Draper alone qualified and acted as executor until 1867, when Margaret G. Kopper qualified as executrix. On the.8th day of December, 1869, Mrs. Kopper filed her account as executrix, in which she accounted for all moneys and properties which had come into her hands as such executrix, and she was thereupon duly discharged as such executrix on November 26, 1870.

As there is no allegation in the petition that any further sums have come into her hands as such executrix, and as it is specifically alleged by this appellant that she has accounted for all moneys and properties which have at any time come into her hands as such executrix, which is not denied, a further accounting as executrix will not be ordered. (Matter of Hood, 90 N. Y. 512; Matter of Soutter, 105 id. 514.)

In April, 1870, Sarah B. Jenkins began an action to partition all the real estate of which the testatrix died seized. The defendants in that action were Margaret G. Kopper, Frederick Kopper, her husband, Margaret G. Kopper, Jr., and George B. Draper, as executor, and Margaret G. Kopper, executrix. The respondent herein, who. is the daughter of Margaret G. Kopper, was born in the year 1870. Pending said action and .by supplemental complaint filed, on the 27th of February, 1871, she-was'"made a party to said partition suit, and she appeared therein and filed an answer by her guardian. All the real property of which the decedent died seized was included in this: partition actioh. The amended complaint in said action set forth that Sarah B. Jenkins was seized in fee and possessed of one equal sixth part of- the lands and real estate, of the decedent as-tenant in common and Margaret Gr. Kopper Was likewise seized in fee of one equal sixth part of said lands and real estate as tenant. in common. This referred to the portion of the real estate left to the testatrix’s daughter Mary- C. Jenkins Who was then dead. The complaint then proceeded : “ That the plaintiff Sarah B. Jenkins as a devisee of said Charlotte E. Jenkins is entitled to an estate, for and during her natural life in and to one equal undivided third part of said lands and real estate as a tenant in common, with remainder in fee to her issue, if she leave any issue, and if she die without issue her surviving, then that such remainder -in fee will belong to,the eaid defendant Margaret Gr. Kopper, if she be then living; ” which was followed by a similar statement in regard to the other third of the estate to the effect that Margaret Gr. Kopper was entitled to a life interest-in the same with remainder over as in the case of- Sarah B. Jenkins. The final judgment in the partition action was entered March 1, 1872. Said judgment, after disposing of the proceeds'of the sale of 121 William street, which was sold - by the order of the court to pay the expenses of the partition suit- and to make equality of partition between the parties, made division of the property between Third and Fourth avenues between One Hundred and .Twenty-fourth and One Hundred and'Twenty-fifth streets so that a certain portion thereof, specifically described, was allotted to Sarah B. Jenkins, in fee and another portion to Margaret Gr.’ Kopper in fee,, in accordance with the prayer of the complaint of one-sixth of the estate to each in fee ; another portion to “ Sarah B-Jenkins for life with remainder upon her- -death to the person or [ ■ persons who under and by virtue of the provisions of the will of Charlotte E. Jenkins, deceased, shall then be entitled to the same;” and another portion thereof to Margaret GL Kopper for life with . like provisions. This judgment finally determined the'status of the parties, required the construction of the will of Charlotte E. Jienkins, which was before the court in full in the complaint in that action, and necessarily held that no trust was created by the said will. All parties in interest, including the petitioner herein, were parties to said action. The judgment disposed of all the real estate of which testatrix died seized, and, the court having had jurisdiction, that judgment cannot be collaterally attacked.

A judgment in an action for partition is binding and conclusive between the parties, not only as to the matters actually determined, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation within the purview of the original action, either as matter of claim or defense. The rule is well settled that a judgment rendered by a court having competent authority to deal with the subject-matter involved in the action and jurisdiction of the parties, although against the facts or without facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned collaterally.” (Jordan v. Van Epps, 85 N. Y. 427. See, also, Cromwell v. Hull, 97 id. 209 ; Reed v. Reed, 107 id. 545.) There is no doubt as to the general rule that a judgment of a court of competent jurisdiction is final and conclusive upon the parties, not only as to the issues actually determined, but as to every other question which the parties might or ought to have litigated.” (Stokes v. Foote, 172 N. Y. 327.) These principles were recently applied by this court in Ward v. Ward (130 App. Div. 27).

Although the language of the will in the 5th clause is inartificial, nevertheless, I think it clear that no trust was thereby created, but that a life estate was deviséd with remainder over.

But this question is no longer open, the judgment referred to having, so far as the ¡parties are concerned, conclusively established it. The appellants have eacli respectively received and enjoyed the income derived from- the portions of the estate set apart for them by this judgment as life tenants and irrespective of the total income derived from the whole estate. They have received and held it in their own right, and not as trustees, since the date of said judgment, March 1, 1872.

The only other clause of the will cited to support a trust is the ,7th: “I direct that the payment-of all taxes, assessments, interest on mortgages, insurance premiums, repairs and other current expenses,, a sum at the rate of' One thousand dollars per annum out of the rents of my real estate, be paid towards the satisfaction of the mortgages on my" said estate.” The provision for the paymént of. $1,000 per annum out of the rents upon the mortgages' of the estate, is clearly invalid as an unlawful accumulation not permitted by the statute against accumulations beyond minority. (Hascall v. King, 162 N. Y. 134 ; Hafner v. Hafner, 62 App. Div. 316 ; affd., 171 N. Y. 633.) The direction for accumulation being void,. it must be treated as if ¡stricken out of the will. (Pray v. Hegeman, 92 N. Y. 519.)

■ But the petitioner claims that she is entitled to an accounting of the proceeds' of certain . mortgages placed upon the property. It appears that, in accordance with the provisions of chapter 53' of the Laws of 1877, proceedings were instituted in. the Supreme: Court to mortgage said'property, the proceeds of such mprtgages to be applied to relieving the property from existing charges and incumbrances and to be invested and applied in such manner from time 'to time as. the court should direct, and to be subject to the limitations provided for in the will of Charlotte É. Jenkins. Eo part of the moneys raised by these mortgages was paid to Margaret Gr. Kopper, but the whole amount was paid to the guardian appointed in such proceedings, Who duly accounted to the Supreme Court and his account was, confirmed by the court on or about the 13th of January, 1881. It is clear that the, Surrogate’s Court has no jurisdiction to review the proceedings had in such matter in the Supreme Court.

It not appearing that any moneys of the estate have come into the hands of either of the executrices since the accounting, which was approved more than thirty-seven years before the commencement of this proceeding, and that the appellants are not trustees of any trust created by the will of the decedent, the; order requiring them to account was improper and should be reversed, with costs to each of the appellants, and the proceeding dismissed.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, with costs to each appellant,, and proceeding dismissed.  