
    In the Matter of the Petition of Wilhelmina Landmesser, Appellant, for the Appointment of a Trustee in the Place of Waldemar A. Walther, Deceased. Charles W. Walther and Frank O. Walther, Respondents.
    
      The appointment of a trustee in place of a deceased trustee is not res actjudicata as . to the existence of a trust —it should be made where a prima facie case is presented.
    
    The appointment by the Supreme Court of a trustee in place of a deceased trustee is not res actjudicata on .the question as to whether or not the alleged trust: exists.
    Where, upon such an application, the petitioner retakes prima facie proof of tli'e. existence of the trust.and the death of the alleged trustee, the application will be granted unless the opposing papers conclusively disprove the prima fad& case made out by the petitioner.
    Appeal'by the petitioner, Wilhelmina Landmesser, from an order of the Supreme Court, made at the Kings'County Special Term and entered in the office of the clerk of the county of Kings on the 20th. day of June, 1904, denying the petitioner’s application for theappdintment of a trustee in the place of Waldemar A. Waltiier,. deceased. :
    
      Richard Krause [Henry B. Heylman with him on the brief], for the appellant.
    
      Emil J. Villanyi, for the respondents.
   Hooker, J.:

It appears from the moving papers in this case that the husband of the petitioner,, in about the year 1866, created a trust in favor of the petitioner, which was for her benefit during her lifetime and that the trust was unexecuted when the trustee died.. The motion, to appoint a trustee in the place of the deceased trustee was denied by the learned Special Term. The papers read in opposition to the motion tend to show,'y?rs¡í, that a trust was never created, and that, thé corpus was a mere loan to the trustee; and, second, that the trust fund has been exhausted by actual payment to the beneficiary,, the petitioner herein, or that the debt has been paid in full to her. We think, however, that a prima facie showing is made by the papers read in support of the motion that there was in fact a trust, created, by the husband of the petitioner, in or about the year 1866,, and that the deceased Walther became and acted as the trustee-That he has died there is no question, and_ unless the opposing-papers conclusively disprove the case made out by the petitioner,, the learned court should have appointed a new trustee. The respondents have presented to this court an able brief in an effort to demonstrate that there was in fact and could have been under the circumstances no trust created; but in answer to this it is sufficient to observe that the mere appointment of a new trustee in place of the deceased Walther cannot conclude the respondents in. any proceedings which may be instituted by the appointee, and the mere appointment cannot in any light be considered as res adjudicada on the question whether or not in fact a trust was. actually created. Matter of Carpenter (131 N. Y. 86) was an. appeal from" an order of the General Term reversing an order of the Special Term appointing a trustee in place of one Pierce, a. deceased trustee. In that case Andrews, J., said: The petitioner was entitled, under the act, chapter 185 of the Laws of 1882, to have a new trustee appointed in place of George A. Pierce, the deceased trustee, upon a prima facie case being made, not conclusively disproved, showing that the notes, money and securities in the hands of the administrator of Pierce, referred to in the petition,, were either held by Pierce at his decease as trustee for the petitioner, or were the proceeds of the trust estate. (Matter of Waring,. 99 N. Y. 114.) The appointment of a new trustee would not con clude. the representatives of the estate of Pierce in any proceeding instituted by the appointee, to subject the property in the hands-of the administrator of Piei’ce to the trust, from contesting its existence or from claiming that the property belonged to the decedent.. Moreover, ,the order ■ of the Special Term was made expressly c without prejudice to the estate of George A. Pierce, deceased, to-contest.’ ”

Much of the matter alleged in opposing the motion may be susceptible of contradiction .in any action or proceeding that the trustee-may bring against the respondents; in any event, it is not, in the form presented in opposition to this motion, sufficiently conclusive to disprove what we consider th e prima facie case presented by the-petitioner, and under the rule in the Carpenter Case (supra) we are constrained to hold that the learned court at Special Term" erred in denying the motion.

The order should be reversed and the proceedings remitted to the Special Term to make an appointment of a hew trustee.

Hibschbeeg-, P. .j., Bartlett, Woodward" and Jenks, JJ., concurred. . . " ■

Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term for further proceedings in accordance with the opinion of Hooker, J.  