
    Margaret Rooney, Respondent, v. Martin R. Bodkin and Others, as Executors, etc., of Dominick G. Bodkin, Deceased, Appellants.
    
      Will — equitable cause of action in a life tenant against executors who hold possession of the premises in which the life tenure exists — defense that the plaintiff had an adequate remedy at law — costs charged against executors in their individual capacity.
    
    The will of a testator, by the 8th paragraph thereof, provided: “I also give unto my said niece the house and lot No. 288 Clinton Avenue, Brooklyn, subject to the life estate therein of Margaret F. Bodkin; and the houses and lots Nos. 221 and 223 High Street, in Brooklyn. To have and to hold the said three separate parcels of .real estate for and during her natural life, with the fee thereof unto her issue her surviving, but in case of her death without issue surviving, I give and devise said three parcels of real estate unto my brother Martin, or in case he shall have died before the termination of said life estates, unto his heirs, per stirpes.”
    
    The 17th paragraph thereof provided: “ I authorize and empower my Executors to take charge of all my real estate, except that directly devised with right of immediate possession to the devisee, and to let, lease, sell and convey the same or any portion thereof. The proceeds derived from the sale of any real estate in which a life interest continues under this will shall be regarded as real estate and be carefully and separately invested by my Executors in order to preserve the interest therein of the life tenant and reversioners. My Executors shall collect the rents and income from all said property and therefrom pay the taxes, repairs and other charges thereon and pay over the net income derived from each portion, or from the investment made in lieu of the real estate to the life tenant entitled thereto.”
    Subsequent to the probate of the will the testator’s niece brought an action against the executors to secure a determination of her rights under the will, alleging that the executors had entered into possession of the High street premises, and that they “have ever since said time collected, and are now collecting, the rents and income thereof, and have and do now claim the right to hold, manage and control the said real estate and to collect the rents issuing therefrom, as testamentary trustees, pursuant to the terms of said last will and testament.”
    The defendants admitted these allegations, and, upon the trial, the court held that the. executors were not entitled to hold the premises against the plaintiff, and that the latter was entitled to an accounting. It also awarded costs against the defendants personally.
    Upon an appeal by the executors from so much of the judgment as determined that the Supreme Court sitting as a court of equity had jurisdiction of the action, it was
    
      Held, that the judgment should be affirmed;
    
      That the facts set forth by the plaintiff were sufficient to constitute an equitable cause of action against the defendants and to entitle the plaintiff to the relief granted;
    That the defendants could not successfully urge the objection that the court should have refused to take-jurisdiction of the action because the plaintiff had an adequate remedy at law, even if that objection were tenable, as they had neglected to plead that defense in their answer;
    That a statement in the answer that proceedings are pending in the Surrogate’s Court, and that such court.has “ ample jurisdiction to determine any disputes that have arisen or may arise between the parties concerned in said estate, that these defendants do not invoke the intervention of the equitable powers of this court for a construction of said will, and they'deny that the plaintiff is justified in bringing or maintaining this action,” was not a sufficient allegation of the existence of an adequate remedy at law;
    That in unlawfully refusing to give the plaintiff possession of the property in question the executors acted personally and not in their representative capacity, and were, therefore, properly charged with costs individually.
    Appeal by the defendants, Martin R. Bodkin, and others,- as executors, etc., of Dominick Gl. Bodkin, deceased, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of July, 1903, as assumes and determines that the Supreme Court in Equity had and properly entertained jurisdiction of this action, and authority to render the judgment therein, and directs the payment of costs by the defendants individually, and also from an order bearing date the 15th day of. July, 1903, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    
      John R. Kuhn, for the appellants.
    
      L. J. Morrison, for the respondent.
   Woodward, J. :

Dominick Gf. Bodkin, late of the city of New York and borough of Manhattan, died on or about the 26th day of January, 1902, leaving a last will and- testament, with codicils, in which he disposed of various pieces of real estate, or the income .thereof, and by the 8th paragraph of the said will he gave to the plaintiff the sum of $5,000, and further provided that I also give unto my said niece the house and lot No. 288 Clinton Avenue, Brooklyn, subject to the life estate therein of Margaret F. Bodkin; and the houses and lots Nos. 221 and 223 High Street, in Brooklyn. To have and to hold the said three separate parcels of real estate for and during her natural life, with the fee thereof unto her issue her surviving, but in case of her death without issue surviving, I give and devise said three parcels of real estate unto my brother Martin, or in case he shall have died before the termination of said life estates, unto his heirs,per stirpes P By the 17th paragraph of the said will the testator provided that “ I authorize and empower my Executors to take charge of all my real estate, except that directly devised with right of immediate possession to the devisee,, and to let, lease, sell and convey the same or any portion thereof. The proceeds derived from the sale of any real estate in which a life interest continues under this will shall be regarded as real estate and be carefully and separately invested by my Executors in order to preserve the interest thereiú of the life tenant and reversioners. My Executors shall collect the rents and income from all said property and therefrom pay the taxes, repairs and other charges thereon and pay over the net income derived from each portion, or from the investment made in lieu of the real estate to the life tenant entitled thereto.”

Claiming authority to act under this 17th paragraph of the .will, as admitted by the defendants in their answer to the complaint in this action, the defendants entered into possession of the premises at Nos. 221 and 223 High street, and at the time of the trial, eighteen months after the will was admitted to probate, were still in possession of the premises, collecting the rents and profits, and neglecting to account to the plaintiff for the same. The plaintiff brings this action to have her rights under the will determined. She sets forth the facts in reference to the will and its provisions, and alleges that the executors had entered into possession of the premises above mentioned-, and that they “ have ever since said time collected, and are now collecting, the rents and income thereof, and have and do now claim the right to hold, manage and control the said real estate and to collect the rents issuing therefrom, as testamentary trustees, pursuant to the terms of said last will and testament.”

The defendants in answering admit these allegations, and allege that they “have proceeded with due diligence in performance of their duties as such Executors, have collected the rents from the premises Nos. 221 and 223 High Street, and have therefrom paid the necessary expenses for taxes, insurance, repairs,,- &c., and are ready and willing to account to plaintiff, as life tenant of. said premises, for the net proceeds so collected and to pay the same to her as by the will directed.” By this pleading the defendants admit that they are assuming to hold this property (which unquestionably vested in the plaintiff and her heirs, subject to the provisions of the will, immediately upon the death of the testator) as testamentary trustees, yet upon this appeal they urge that a court of equity is without jurisdiction to determine the construction of this will and the rights of the plaintiff thereunder. The learned court at Special Term granted the relief which the plaintiff demanded and awarded costs to the plaintiff, to be paid by the defendants personally. The defendants appeal.

" We are not in doubt that the facts set forth by the plaintiff were sufficient to constitute an equitable cause of action against these defendants, who claimed to be acting as testamentary trustees, and we are clear that the learned Court has not erred in holding that they were not entitled to hold the premises as against the plaintiff, and that the latter was entitled to an accounting. But were we less clear upon these points, the proposition now urged by the defendants, that the court should have refused jurisdiction because' the plaintiff had an adequate remedy at law, is without force. A defendant, when sued in equity, cannot avail himself of the defense, that an adequate remedy at law exists unless he pleads that defense in his answer (Town of Mentz v. Cook, 108 N. Y. 504, 508, and authorities there cited), and we look in vain in the defendants’ pleadings 'for any suggestion that the plaintiff has any other remedy than that which she seeks, though there is a suggestion that proceedings are pending in the Surrogate’s Court, and that such court has “ ample jurisdiction to determine any disputes that have arisen or may arise between the parties concerned in said estate, that these defendants do not invoke the intervention, of the equitable powers of this court for a construction of said will, and they deny that the plaintiff is justified in bringing or maintaining this action.” The plaintiff’s rights under thé will of Mr. Bodkin depended upon the construction of the will; if the defendants were testamentary trustees, as they claimed to he, then a court of equity unquestionably had jurisdiction, and the plaintiff had no adequate remedy at'law, and if they were usurping the duties of a testamentary trustee under an erroneous construction of the will, and were keeping the plaintiff out of her right of possession, it is difficult to understand why, under the pleadings, it was not proper for the court to determine the question of law and to grant the proper relief. There could be no dispute of fact as to the provisions of the will; it presented purely a 'question of law as to the proper construction, and no material rights of the defendants are involved in the mere technical question of whether the law'was determined by a court in its equitable capacity or as a trial court.

On the question of costs, we see no reason for modifying the judgment. The plaintiff was entitled to immediate possession of her property. The defendants unlawfully withheld the property from her, and why the costs of this action, necessary to secure the plaintiff’s legal rights, should be taken from the decedent’s estate, to the wrong of this plaintiff and others who are not parties to this action, does not appear. The defendants, as executors, had no duties to perform in connection with' the High street property, and they, having insisted upon a right to act, to the disadvantage of the plaintiff, and in violation of her legal rights, were acting personally and not as executors, in refusing' to give possession of the property, and they are properly chargeable with costs individually. (Code Civ. Proc. § 3246; Buckland v. Gallup, 105 N. Y. 453.) The defendants do not appeal from the conclusions of law involved in the judgment, in so far as it relates to the rights of the plaintiff in the High street premises. This is a concession that their posséssion of the property was illegal, and as the plaintiff is entitled to costs from some one, and the estate is not legally chargeable for the illegal acts of executors, there is no other place for the burden to fall than upon those who have by their misconduct made the action necessary. .

The judgment and order appealed from should be affirmed, with costs.-

All concurred.

Judgment, and order, so far as appealed from, affirmed, with costs.  