
    In the Matter of the Application of Charles A. Runk, as Substituted Trustee under the Last Will and Testament and Codicil Thereof of Annie Joy, Deceased, Appellant, for a Writ of Mandamus against Abner C. Thomas, a Surrogate of the County of New York, Respondent.
    First Department,
    June 3, 1910.
    Court — accounting by testamentary trustee appointed by Supreme Court—jurisdiction of Surrogate’s Court and Supreme Court — stare decisis — statements as to matters not in issue.
    A substituted testamentary trustee appointed by the Supreme Court may make an intermediate and annual accounting in the Surrogate’s Court, but that court cannot compel a testamentary trustee .appointed by the Supreme Court to make • a final accounting, or, it seems, to accept his resignation or finally discharge him.
    Jurisdiction of surrogate over testamentary trustees discussed, per McLaughlin, J.
    Statements in an opinion upon issues not before the court are not binding in subsequent cases under the doctrine of stare decisis.
    
    Clarke, J., dissented.
    Appeal by the petitioner, Charles A. Bunk, as substituted trustee, etc., from an' order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the. 8th day of April, 1910, denying the petitioner’s motion for a writ of mandamus.
    
      Charles B. Hart, for the appellant.
    
      Abner C. Thomas, respondent, in person.
   McLaughlin, J.:

In December, 1904, the appellant was, by an order of the Supreme Court, appointed a substituted trustee under the last will' arid testament and codicil thereof of Annie Joy, deceased. On the 9th of March, 1910, he presented to the Surrogate’s Court of the county of New York a petition in due form praying that his account be judicially settled and that a citation to attend the settlement issue to the persons interested therein. The respondent, who presided in that part of the Surrogate’s Court to which the petition. was presented, refused to issue a citation on the ground that he had no jurisdiction to entertain the proceeding and the appellant then applied to the Supreme Court for a writ of mandamus to compel him to do so. The application was denied and the appeal is from such order.

In opposition to the application for the writ the learned surrogate presented his affidavit,- in which he frankly stated that in refusing to entertain the proceeding lié was controlled- by the decision of this court in Matter of Leavitt (135 App. Div. 7); that he had not the slightest, personal objection, to entertaining the proceeding, but as he understood the opinion in the- case referred to he was without, jurisdiction in the. premises.” On the argument of the -appeal he .presented a brief in which- he joined with the appellant in urging that he did have jurisdiction, and- that the decision of this court in Matter of Leavitt was erroneous in that it was predicated upon a misconception of the provisions of the -statute relating to the power of the- Surrogate’s Court with reference to the settlement of the accounts- of testamentary trustees.

The decision in Matter of Leavitt (supra) is not only not decisive of this question but has no application to it. All that was there presented was an appeal from an order and decree of the Surrogate’s Court appointing. an additional trustee to serve with two. other substituted trustees then acting who had been appointed by the Supreme Court. The order, and decree appealed from, were reversed by this court on • the .ground that sufficient facts .were not set forth to justify the appointment of an additional trustee or that such appointment would be for the interest of the cestui que trust or the trust estate. Attention was also called to the fact that- since the Supreme Court had already assumed jurisdiction over the trust and had appointed the two trustees then serving, an application for the appointment of an additional trustee ought to be made to it instead of to the Surrogate’s Court, and if the decree and order appealed from were permitted to stand the administration of the trust would be in trustees primarily accountable in different courts. The question whether a testamentary trustee, appointed by the Supreme Court, could, under any circumstances, account in the Surrogate’s Court was. not before the court and what was said upon ■ that subject was only by way of argument and not decisive of the question now presented. As was said in Colonial City Traction Co. v. Kingston R. R. Co. (154 N. Y. 493): “ It was not our intention to decide any case but the one before us, * * * and our opinion should be read in the light of that purpose. If, as sometimes happens, broader statements were made by way of argument or otherwise, than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant,, and when it wanders from the point at issue it no longer has force as an official utterance.” In Crane v. Bennett (177 N. Y. 106) the court, after referring with approval to the language just quoted, further stated that “ In applying cases which have been decided, what may have been said in an opinion should be confined to and limited by the facts of the case under consideration, when the expressions relied upon were made, and should not be extended to cases where the facts are essentially different. When this rule is followed, much of the misapprehension and uncertainty that often arises as to the effect of a decision will be practically avoided.”

In the case now before us, upon the deatli of the sole surviving trustee, the trust, so far as it remained unexecuted, vested in the Supreme Court, to be executed by some person appointed by it. (Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 8, as amd. by Laws of 1902, chap. 150; revised into Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 20; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 91, as amd. by Laws of 1902, chap. 151; revised into Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 111.) The Supreme Court accordingly appointed the appellant, and the trust which he was to execute has been terminated by the death of the cestui gue trust, and the only question presented is whether the trustee can, upon his own application — no objection being made thereto — account in the Surrogate’s Court.

The trust having vested in the Supreme Court and it having appointed the appellant as its agent to execute the same, it would seem that orderly procedure requires such agent, upon the termination of the trust, to account to the principal, viz., to the court which appointed him, and to that court alone. What was said by way of argument in Matter of Leavitt (supra) and Matter of Hazard (51 Hun, 201) is quite applicable to such question. But, it is urged, and with considerable force, that Certain sections of the Code of Civil Procedure have conferred, jurisdiction upon the Surrogate’s ■ Court, not only to entertain a proceeding for a voluntary settlement of- the accounts of a testamentary trustee appointed by the Supreme Court, but.that it may compel such settlement. After a careful' consideration- of the sections referred to I am unable to reach such' conclusion. Section 2472 provides.that each surrogate lias jurisdiction: “ * * * 3. To direct1 and control the conduct and settle the accounts of executors, administrators and testamentary trustees; to remove testamentary trustees and to appoint a successor in place of . a testamentary trustee so removed.” The proceedings in the Surrogate’s Court relating to testamentary trustees are regulated by sections 2802-2820, which provide for both voluntary and -compulsory. accountings; the judicial settlement of accounts and the resignation and removal of testamentary trustees and the appointment of their successors. Section 2514 provides that, except where a contrary intent is expressly declared^ or is plainly apparent from the context: 6. The expression, ‘ testamentary trustee,’ includes every person * * * who is designated by a will, or by any competent authority, to execute a trust created by a will * *

The Legislature undoubtedly intended,- by these sections, to confer upon the Surrogate’s Court full and complete jurisdiction over the administration of trusts created by will, but I do not believe it intended to extend this jurisdiction, at least to its full extent, to ■cases' where ■ the trust had vested in the Supreme Court and the same was being executed by a trustee appointed by it. It cannot be denied, that such a trustee would fall within the definition of a “ testamentary trustee,” but if these sections of the Code are to be taken literally, then such a trustee could not only be compelled to account in the Surrogate’s Court, but that court might remove or discharge him immediately after he had been appointed by the. Supreme Court. The effect of this would be to reverse an order of the Supreme Court by which the appointment was made and to leave uncanceled and undischarged the bond which'the trustee gave. I cannot believe that the Legislature ever intended to confer such power upon the Surrogate’s Court and if it did it may well be doubted whether its act is valid. If so, a court having only such power as is conferred upon it by statute may nullify the act of a court whose powers- are derived from the Constitution of the State. As was said in Matter of Hazard (supra) : It is undoubtedly true that the loose and sweeping enactments of the Code relating to the jurisdiction of the Surrogate’s Court are susceptible of different constructions * * * and we must, therefore, find our way as best we can, to an interpretation which seems to be reasonably consistent with some intelligent, intention, and which interpretation will fix, with reasonable certainty and without circuity of action, the rights of all parties interested.”

An examination of the statutes enacted before the sections of the Code referred to shows that prior to 1850 the Surrogate’s Court had no jurisdictioij to take the account of a testamentary trustee. Section 66 of title 3 of chapter 6 of part 2 of the Revised Statutes (2 R. S. 94) provided that “ The last preceding section [which related to the effect of the final settlement of the accounts, of executors and administrators] shall not extend to any case where an executor is liable to account to a court of equity by reason of any trust expressly created by any last will or testament.” The statute as it thus stood imposed an additional burden and necessitated an additional expense where the same persons named in a will as executors were also' appointed trustees, and to obviate the same the statute was amended (Laws of 1850, chap. 272) so as to provide that “ Any trustee created by any last will or testament, or appointed by any competent authority to execute any trust created by any such last will or testament, or any executor or administrator with the will annexed, authorized to execute any such trust, may from time to time render and finally settle his accounts ” before the surrogate, whose decree on such settlement should be given full force and effect. The obvious purpose of the amendment was to enable an executor who was also trustee to account in both capacities at the same time in the Surrogate’s Court. It was not designed to apply to a trustee appointed by the Supreme Court at all, or if so, only to the extent of permitting him to settle “from time to time” during the continuance of the trust, e. g., where an administrator with the will annexed had also been appointed by the Supreme Court as substituted trustee. Section 66 was again amended (Laws of 18.66, chap, 115) without substantial or material change with, respect to the question now under consideration, and the following year (Laws of 1867, chap. 782) the surrogate was given power to compel “ testamentary trustees and guardians ” to account in the same manner as executors, administrators and guardians appointed by such surrogate, and this provision was substantially re-enacted by chapter 482 of the Laws of- 1871, which also -gave the surrogate power to require security from and to remove “ testamentary trustees or guardians.” The-sole purpose of these statutes, as it seems to me, was to further and carry Out the scheme of the earlier enactments in extending the jurisdiction of the. Surrogate’s Court, but it is to be observed that they related only to “ testamentary trustees ” and conferred no power upon the Surrogate’s Court to compel a trustee appointed'by the Supreme Court to account or to remove such trustee.

In 1880 (Chap. 178) the various provisions of the statute relating to the subject were incorporated into and became a part of the Code of Civil Procedure (see sections heretofore cited), and I-have no hesitation in reaching the conclusion that, notwithstanding the definition of the term “ testamentary'trustee ” as therein used, no jurisdiction was conferred upon the Surrogate’s Court to compel a testamentary trustee appointed by the Supreme Court -to áceount or to remove him; and while that question is not directly involved in the one now before us, it may-be considered in so far as it-will enable us to place a reasonable interpretation upon the other' sections of the Code-. Tlie-original provision of the statute (2 R. S. 94, § 66), as amended by the acts referred to, was apparently re-enacted' as section 2802 of the Code of Civil Procedure, and it is Under this section principally that the surrogate claims jurisdiction in the present case. That section provides that “ Any trustee created by any last will and testament, or appointed by any competent authority to execute any trust created by such last will and testament^ may at any time file an intermediate account, and may also annually render and finally judicially settle his accounts before the surrogate of the county háving jurisdiction * * * ” and that “in all such annual accountings of such trustees,” the surrogate shall allow commissions, etc. This section-, it will be -observed, refers only to annual' accountings and- settlements, and fit seems to me, like the statute from which it was derived, applies only to accountings from time to time during the continuance of the trust. As the section was originally enacted (Laws of 1880, chap. 178), it read simply that “ A testamentary trustee may at any time file an intermediate account, and the vouchers in support of it, with the surrogate having jurisdiction of the estate.” It was subsequently amended (Laws of 1885, chap. 518) to read as it now does. The amendment is quite significant. If the definition of “ testamentary trustee” had been adhered to, and included a trustee appointed by the Supreme Court, there was no occasion to make any change, for the succeeding sections were sufficient to cover all cases. But by the amendment the same language used in the definition was repeated at the beginning of the section, and the only reason which I can see is that the Legislature must have realized, despite the definition, that the succeeding sections providing for a compulsory accounting and settlement, and for the removal of a testamentary trustee, were not intended to and did not apply to a trustee appointed by the Supreme Court.

My conclusion is that, while section 2802 of the Code of Civil Procedure may apply to a trustee appointed by .the Supreme Court to execute a trust created by will, that is the only section which could apply to such trustee, and it simply permits lii-m to annually render and finally judicially settle his accounts” in' the Surrogate’s Court. This is not such an accounting as is sought in the present-case. Here the trust has terminated, and the settlement of the accounts of the trustee will entitle him to a final discharge.

If the foregoing views be adopted, then the provisions of the Code relating to the subject present a- logical scheme for the control of testamentary trustees. The Surrogate’s Court now has jurisdiction to appoint and remove a testamentary trustee for certain defined causes, and there is no occasion, when a removal ;s asked on the grounds specified, to resort to the Supreme Court ro* the appointment of a substituted trustee, even in case of the death of the sole surviving trustee. (Royce v. Adams, 123 N. Y. 402; Conant v. Wright, 22 App. Div. 216; affd., 162 N. Y. 635; Matter of Russell's Estate, 19 N. Y. Supp. 743; Matter of Valentine, 3 Dem. 563; Matter of Brady, 58 Misc. Rep. 108; Matter of Chase, 40 id. 616.)

As already pointed out, if a trustee appointed by the Supreme Court could account in the Surrogate’s Court and there be distíharged, his bond would still remain in force, and the only way that could be gotten rid of and the sureties thereon released would be by a new proceeding in the Supreme Court.' Such result and such conflict of authority should be avoided if possible. (Matter of Hazard, supra.) It is true, as contended, that the Hazard case simply holds that the administrator of a deceased testamentary trustee appointed by the Supreme Court cannot be compelled to account in the Surrogate’s Court, under the literal interpretation of section 2606 of the Code of Civil Procedure, but as was pointed out in the opinion, if tlie Surrogate’s Court could have compelled the decedent to account, there is no apparent reason why section 2606 should not have been worded so as to permit the same court to compel his administrator to account, and this indicates, as it seems tó me, it was not intended by the other provisions of the Code to confer such power upon the Surrogate’s Court.

It may b'e conceded, as intimated, that under section 2802 a trustee appointed by the Supreme Court may file an intermediate account-and annually render and settle his accounts in the Surrogate’s Court, but I am of the opinion that that is the extent of the jurisdiction conferred by that section upon the Surrogate’s Court. Such court has not the power to remove a testamentary trustee appointed by the Supreme Court, accept his resignation, compel him to account or finally discharge him.

I am of the opinion, therefore, that the testamentary-trustee appointed by the Supreme Court, should, upon the termination of his trust, account to that court and be discharged by it, and for this reason the learned surrogate properly refused to entertain tlie proceeding.

The order appealed from should be affirmed’, without costs, to either party. '

Ingraham, P. J., Scott and Dowling, JJ., concurred; Clarke, J., dissented.

Order affirmed, without costs.  