
    Van Sinderen v. Lawrence.
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    ".Trusts—Accounts—Right to Trust Fund—Power or Surrogate.
    Under Code Civil Proc. N. Y. c. 18, tit. 6. relating to testamentary trustees and their accounts, these are to be rendered and settled before the surrogate, in the same manner as those of executors and administrators. By chapter 18, tit. 4, art. 2, the jurisdiction of the surrogate over such accounts is confined to their settlement, and .does not extend to the determination of any collateral disputes as to the interest of •claimants of the fund. Section 2739 provides that a contest between the account-ing party and the other parties as to property alleged to belong to the estate and ■claimed by the executor or administrator, or debts between him and decedent, may be tried as any other issue raised in the surrogate’s court. Section 2812 declares that a controversy arising on the settlement of the trustee’s accounts, respecting ■the right of a party to a share in the money or other personalty to be distributed, must be determined as other issues are. Meld, that the surrogate has no power to •decide an objection raised by the trustee that a party should not be heard on the accounting because he has given the trustee a general release of his interest in the estate. That such an issue must be tried by a separate action is shown by the latter part of section 2812, which provides that if the controversy remains undetermined after the settlement of the other questions on which distribution depends, the decree must direct a sufficient amount to be retained or deposited to pay the claim when it is due, recovered, or settled.
    Appeal from special term, Yew York county.
    Action by Adrian Van Sinderen, testamentary trustee of the estate of Will•iam Lawrence, deceased, to enjoin proceedings in plaintiff’s accounting before the surrogate until a certain release alleged to have been given him by •defendant, William B. Lawrence, should be established as a conclusive discharge of the latter’s claims against plaintiff or the estate. Defendant appeals from an interlocutory judgment overruling his demurrer.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Albert Bach, fo#appellant. Eugene L. Richards, Jr., for respondent.
   Daniels, J.

The plaintiff is the trustee of the estate of William Law■rence, deceased. In January, 1887, he presented his petition to the surrogate’s •court for the county of Yew York for a citation directed to the beneficiaries •under the last will and testament of the testator to attend the judicial settleña ent of the plaintiff’s accounts as such trustee. The citation was issued and served, and after its return-day an application was made by the defendant for leave to be made a party to the accounting, which was allowed by the surrogate. He thereupon filed objections to the accounts, and it was referred by the surrogate to a referee to take the accounting. The plaintiff in the action objected to the defendant being heard upon the accounting, on the ground that a general release had been executed and delivered by him to the plaintiff" on the 17th of March, 1866, by which he relinquished and released all and singular his right, title, and interest in and to the entire trust-estate, both real and personal, wheresoever the same might be situated, of the said "William Lawrence, deceased, under and by the terms and provisions of his last-will and testament, and acknowledged the full receipt and satisfaction of all claims and demands in his behalf against the estate and against the plaintiff as executor. Both the surrogate and the referee declined to pass upon the validity of the release, or to hear and consider the objections made against it by the defendant, and this action was accordingly brought to enjoin the proceedings before the surrogate, until upon its hearing and decision the release might-be established as a conclusive discharge of the plaintiff from the claims against-himself or against the estate by the defendant.

The allegations contained in the complaint were sufficient to bring the case-within the authority of the decisions made in Re Brown, 3 Civ. Proc. R. 39,. 45-51; Re Giles Estate, 11 Abb. H. C. 57; Pettigreiw v. Foshay, 12 Hun, 486; and Wright v. Fleming, 76 N. Y. 517, provided the authority of the surrogate over the controversy concerning the release was substantially the same as it would have been if the application had been made for the accounting by an executor or administrator.

In support of the demurrer and of this appeal the appellant has insisted that the authority conferred upon the surrogate over the settlement of the accounts of a trustee are broader, and so much more extended than it is over the accounts of an executor or administrator, as to include the power to try and determine the questions which have arisen concerning the execution, delivery, and effect to be given to the release. But the provisions contained in the Code do not seem to sustain this distinction. By section 2802, any trustee-created by a last will and testament, or appointed by competent authority to-execute the trust, may at any time file an intermediate account, and annually render, and finally judicially settle, his accounts before the surrogate of the-county having jurisdiction of the estate or trust. But this, it has been further declared, is to be done in the manner provided by law for the final judicial settlement of the accounts of executors and administrators; and the effect-to be given to the decree is to be the same, and no greater, than a decree entered upon tlie settlement of the accounts of an executor or administrator, and. an appeal is allowed to be taken from the decree in the same manner. Prom the language of this section it seems to have been the purpose of the legislature-to confer upon the surrogate the same power over the settlement of the accounts-of the trustee which was previously given to him over the accounts of executors or administrators; and that power, both by this section and also those-contained in article 2, tit. 4, c. 18, Code, has been to do no more than to settle- and judicially determine the accounts themselves. Ho authority has been conferred to enter upon the hearing and determination of any collateral or incidental disputes involving the right or title of either of the claimants to an< interest in the estate, after that may have been formally released, as it was-in this case. By section 2807 of the Code power has beéh given to the surrogate to compel a judicial settlement of the accounts of a testamentary trustee in three specified classes of cases; but the power there conferred has been limited entirely to the settlement of the accounts themselves. And the other sections succeeding section 2802, to and including 2806, and from 2808 to 2815 of the Code, relating to the proceedings before the surrogate, have extended bis jurisdiction no further than over the settlement of the accounts, the manner in which the parties are to be brought before the surrogate for this object, and the effect to be given to the final decree. That his jurisdiction was intended to be limited to this object further appears from the application made by section-2810 of sections 2729-2731 to the proceedings allowed to be taken before the" surrogate: and the same result follows from the application of sections 2734-2737, 2739-2741, 2743, 2744, and 2746 by section 2811 to the same proceedings, for these sections so applied do no more than to regulate the power of the surrogate, and prescribe the manner in which the proceedings are to be taken, the hearing to be had, and the disposition or distribution of the funds found in the hands of the executor or administrator. Section 2739 forms no' exception to this construction, for that liaS done no more than to provide that the executor or administrator may prove as a part of the settlement any debt owing to himself by the decedent; and when a contest arises between the accounting party and any of the other parties, respecting property alleged to1 belong to the estate, but which may be claimed by the executor or administrator, or concerning a debt alleged to be due from him to the decedent, or from the decedent to the personal representative, there the contest is to be tried and determined in the same manner as any other issue raised in the surrogate’s court. But, broad as the language is which has been employed in the enactment of this section, it does not include a controversy of the tenor and effect of that-existing between these parties. Section 2812 of the Code, upon which much reliance has been placed, also fails to extend the jurisdiction of the surrogate" over this controversy. That section has declared that a controversy wbieharises upon the settlement of the account of the trustee respecting the right-of a party to a share in the money or other personal property to be paid or distributed, must be determined in the same manner as other issues are deter-mined; but this has not conferred upon the surrogate the power to try and dispose of the controversy. Its direction is general that it must be determined in the same manner as other issues; and issues concerning controversies of this description are to be tried and determined by actions, as distinguished from proceedings, before the surrogate. The remaining portion of this section contemplates such an adjudication, for it has been thereby provided that, if such controversy remains undetermined after the determination of all other' questions upon which the distribution of the fund or the delivery of the per-1 sonal property depends, the decree must direct that a sum sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together' with the probable amount of the interest and costs, and, if the case so requires, that the personal property in controversy be retained in the hands of the ac-1 counting party, or thatthe money be deposited, subject to the surrogate’s order, for the purpose of being applied to the payment of the claim when it is due,recovered, or settled. These directions would have been unnecessary if it had been intended that the surrogate should determine these disputes, for if lie' had that power he could, without any such provisions, determine the controversy before a distribution would be directed; or, if that course should not be' considered advisable, to divide the controversy, allowing the residue of the" estate to be settled and adjusted, and the part to which the controversy related-retained until it should be settled. The language of this part of the section is more directly adapted to what shall be done with property or money concerning which controversies shall arise in the proceedings to settle the account, which may not be heard or determined by the surrogate; and it further evinces the intention of the legislature to have been that a controversy of the description of that involved in this action should not be tried and determined by or before the surrogate.

By all the sections of the Code referring to and providing for the settlement-of the accounts of testamentary trustees, the intention is disclosed of giving' the surrogate the same jurisdiction, and no more, than he has over the accounts-of executors and administrators. There was obviously, also, no reason for making any distinction in this respect, or of giving to the surrogate the power to hear and determine disputes with a trustee which he could not hear or determine upon the settlement of the accounts of an executor or administrator. The proceedings are practically homogeneous in each of these classes of cases; .and the plain object of the law was to subject testamentary trustees to all the duties and obligations to which administrators and executors were subjected in the settlement of their accounts, and to gi ve the surrogate the same, and no ■other, authority over the trustee than he was given over these other representatives. The judgment accordingly appears to have been warranted by the law, and it should be affirmed, with costs, but with liberty to the defendant to withdraw the demurrer, and answer in 20 days on payment of the costs of the demurrer and this appeal.-

Van Brunt, P. J., and Brady, J., concur.

ON APPEAL FROM AN ORDER CONTINUING AN INJUNCTION.

Daniels, J.

The injunction was issued j;o enjoin and restrain the defendant, his agents, etc., during the pendency of this action, from taking any further steps in the surrogate’s court, upon or relating to, or in attempted violation ■of, the general release executed and delivered by the defendant to the plaintiff. The right of the plaintiff to this injunction.depended upon the same facts as his right to maintain and prosecute the action itself, to obtain an adjudication .sustaining or controlling the effect of the release in controversy. That such .an action may be maintained has the approval and authority of Wright v. Fleming, 76 N. Y. 517, as well as the other authorities which have been mentioned in the disposition of the appeal in this action from the interlocutory Judgment. It is unnecessary to go over the case again for the disposition of this appeal. As the surrogate, and the referee appointed by him, was without the power to hear and dispose of the controversy which has arisen concerning .the release, it followed that the plaintiff was entitled to have it heard and determined in this action; and as all the necessary facts had been alleged and .set forth upon which that determination may be made, and disclosing its necessity, the order continuing the injunction was right, and it should be .affirmed, with $10 costs, and also the disbursements.

Van Brunt, P. J., and Brady, J., concur.  