
    Edward Mildeberger, as Substituted Trustee Under the Last Will and Testament of John F. Kellers, Deceased, Plaintiff, v. Mary C. Franklin et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1911.)
    Jurisdiction — Jurisdiction of particular courts — Concurrent jurisdiction — Supreme Court and Surrogate’s Court.
    Though the Surrogate’s Court has power to settle an account of moneys of a trust estate collected and applied hy a testamentary trustee, yet, where the testamentary trustee permitted the beneficiaries to collect and apply the rents and profits of the estate, the Surrogate’s Court has no power to compel an accounting hy them, or the settlement of an account rendered by them of their receipts and the application thereof.
    In such a ease, where repairs are to be made to the trust estate, and taxes, assessments and other charges paid, the beneficiaries are not the absolute owners of the rents and profits collected by them, hut receive them in a fiduciary capacity, and may he required by a ■ court of equity to account for their receipt and application.
    
      Action by a testamentary trustee to have his accounts settled.
    Fettreteh, Silkman & Seybel (Joseph Fettreteh, of counsel), for plaintiff.
    Ruford. Franklin, in person and as counsel for defendant Mary O. Franklin.
   Giegerich, J.

The plaintiff brings this action as a sub-' stituted testamentary trustee to procure a settlement and adjudication of his accounts for the receipt of rents of certain real estate. Under the provisions of the will in question the executors were directed to keep the buildings belonging to the estate insured and in good repair and condition and to pay all taxes and assessments and other expenses. The complaint further alleges that the rents of the real estate were received by the plaintiff for several years, and then, at the request of the defendants, the plaintiff allowed them to collect the rents themselves, and that since such rents have been collected by the defendants the plaintiff has bad no account thereof. The relief demanded is that the accounts be taken and stated and settled and that the acts of the trustee be ratified and confirmed, and for such other relief as may be equitable. The only defendants named are Mary 0. Franklin and Ruford Franklin. To Mary G. Franklin the testator gave, after the termination of a life estate in his widow, whose death was conceded upon the trial, the net rents of 'bis property during her life. Upon her decease, it was provided that all his property should go to her children, share and share alike. It does not appear from the pleadings who Ruford Franklin is, but it may be inferred from some things said upon the trial that he is the only child of Mary 0. Franklin.

The right of the plaintiff to maintain his action in this court is challenged on the ground that the Surrogate’s Court has power to grant all the relief necessary and, consequently, that this court should not entertain the action. Post v. In-graham, 122 App. Div. 738; Mildeberger v. Franklin, 130 id. 860; Pyle v. Pyle, 137 id. 568; Childs v. Childs, 68 Misc. Rep. 472. In this case, I am by no means satisfied that the surrogate w-o-u-ld have the powers necessary to a disposition of all the matters involved. The surrogate would undoubtedly have power to pass upon the plaintiff’s accounts so far as concerns the rents that he himself collected; but, when it comes to the rents which he permitted the defendants to collect, I am not -aware of any power in the surrogate to require the defendants to make any accounting for the rents so collected by them. As I construe the will, it created a trust; not expressly, it is true, but by necessary implication, in order to effectuate -the intention of the testator. Ward v. Ward, 105 N. Y. 68; Morse v. Morse, 85 id. 53; Marx v. McGlynn, 88 id. 357; Close v. Farmers’ Loan & Trust Co., 121 App. Div. 528. Consequently, the defendants, in collecting and disposing of the rents in place of the plaintiff ' trustee, acted in a fiduciary -capacity and can be required in -a court of equitable powers to account for the rents so collected by them. Even if it be assumed — although there is no allegation or proof to that effect -— that the defendant Buford Franldin is the only child of the defendant Mary 0. Franklin, and the only one -at present interested in the remainder, it does not follow that he -and Ms mother, the beneficiary for life of the net income, are -entitled to administer the trust estate and dispose -of the rents as they see fit. Bnder the provisions of the will repairs are to he made -and taxes, assessments and other charges paid; -and -even if the -defendant Buford Franklin is at this time the only child, it may he at his mother’s death there will be others interested in or entitled to -the remainder. It is the duty of the plaintiff to see to it that the trust is administered in accordance with the -directions of the testator, and it would be the duty of the court, quite irrespective of the -attitude of the plaintiff, to see to it that the trust has been and will he properly administered. A complete inquiry in this regard will draw •into the account the acts of the defendants, and, therefore, the broad powers of a court of equity will he required. There should he judgment for the plaintiff accordingly. A decision and judgment in conformity with the views above expressed may he submitted upon the usual notice of settlement. The question of costs will be determined upon the settlement of the decision and judgment.

Ordered accordingly.  