
    In the Matter of the Application of Lazarus Levy for the Appointment of a Trustee in Place and Stead of Abram C. Bernheim, Deceased. Charles L. Bernheim, Appellant; Lazarus Levy, Respondent.
    No. 2.
    • Reference — to take account of a ti'ust fund after the death of the trustee — right of five referee to examine witnesses — a refusal to testify is a contempt.
    
    Where a trustee of an express, trust in personal property has died, and proceedings have been taken, under the provisions of section 1 of chapter 185 of the Laws of 1883, for the appointment by the court of his successor, and where, upon notice to, and with the consent of, the administrator of the deceased trustee, a referee lias been, appointed, before whom all parties in possession of the trust property are directed to account, the referee has power to call and examine witnesses in order to establish the amount of trust property which is in the hands of the administrator; and a member of a firm, in which the deceased trustee was :a member, is guilty of a contempt if he refuses to testify as to the amount -standing upon the books of the firm to the credit of the deceased trustee at the time of his death.
    Appeal by Charles L. Bernheim 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 11th day of May, 1896,'adjudging him guilty of contempt for refusing to answer certain questions propounded to him, upon the trial before a referee, and imposing a fine of $100 upon him, and committing him to the county jail until he answered such questions and paid such fine.
    
      Courtland V. Anable, for the appellant.
    
      A. J. Dittenhoefer, for the respondent.
   Ingraham, J.

By an order of the Special Term of the Supreme Court, entered on the 30th of September, 1895, an order was entered appointing the Farmers’ Loan and Trust Company to cany out and execute a trust in the place and stead of one Abram C. Bernheim, deceased. That order further provided that one Henry C. Bernheim, as administrator of the said Abram C. Bernhein, deceased, and any and all other persons having possession of the property mentioned in the petition, pay and deliver the same to the Farmers’ Loan and Trust Company, as said trustee, and appointed a referee to supervise the payment and transfer of the said- stock, money and property to the said trust company as trustee, and directed that all persons having possession of any part of said property, money or stock, or the proceeds thereof, appear before the said referee for the purpose of accounting for ■ and delivering the same to the said trust company. In the proceeding before the said referee the appellant ivas called as a witness. He was asked to turn in a ledger produced before the referee to an account headed “A. C. Bernheim 6 per' cent.” He refused to answer concerning that account, and it was for such refusal that he was adjudged guilty of contempt. The appellant was thus called as a witness to testify in a proceeding pending in the Supreme Court wherein the court had appointed a referee.

The first and serious question is whether of not the referee was authorized by this order to examine witnesses or take evidence. Hnder the provisions of section 1 of chapter 185 of the Laws of 1882, “ upon the death of a surviving trustee of an express trust-, the trust estate shall not descend to his next of kin or personal representatives, but the trust, if unexecuted, shall vest in the Supreme Court, with all the powers and duties of. the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court.” Thus, upon the death of the trustee, the trust vested in the Supreme Court, and under the power conferred by the statute the court appointed the Farmers’ Loan and Trust Company to execute that trust; and to enable its. appointee to execute that trust, the court directed that the executor or personal representative of the deceased trustee, and all other persons who had in their possession any of the trust estate, should turn such oyer to the new trustee, or to the person designated by the court to execute the trust, and appointed a referee before whom such personal representative of the deceased trustee, and others who were in possession of the trust property, should account. The personal representative of the deceased trustee consentéd to the entry of the order and made no objection to this proceeding before the referee, and the parties seem to have proceeded before the referee to take evidence for the purpose of determining what property stood in the name of the personal representative of the deceased which was really the trust property. That the court had power to order the representative of a deceased trustee to account for and turn over the trust estate to the .persons appointed by the court to execute the trust would seem to be clear. But this order of reference having been made upon notice to and after hearing counsel for the administrator, and upon his -consent, he cannot now object to the order or refuse to obey it. He' was, therefore, required to account before the referee for the trust property in his hands as executor or administrator of the deceased trustee; and on that accounting it is clear that the referee had power to call and examine witnesses to show what property the administrator 'had in his hands that was' part of the trust estate. To prove that lie called the head of the firm of which the deceased trustee had been at one time a member, to show that, at the time óf the death of the trustee, there stood to -the credit of such deceased trustee a sum" of money, having before introduced the testimony given by the deceased trustee, that certain sums of money on deposit with this firm belonged to the trust estate. It seems to us clear that this was relevant testimony upon the accounting between the administrator of the deceased trustee and the person appointed by the court to execute the trust. The appellant was not before the court as an accounting party. He was not asked any question that involved his liability or his firm’s liability to the trust estate. -He was simply asked to testify to a fact as to what amount stood to the credit of the deceased trustee upon the books of his firm at the time of the death of such trustee. The amount which was credited to such deceased trustee, where it appeared that such credit was an individual deposit, vested in the personal representative of the deceased trustee, and whether that money was due to the deceased trustee individually or to the Farmers’ Loan and Trust Company, as substituted trustee, was entirely immaterial to the appellant. What the court was entitled to know* and what the parties were entitled to prove before the referee, was. what property had come to the personal representatives of - the. deceased trustee that belonged to the trust estate, and for such property the personal representative of the deceased trustee was, under the order of the court entered after hearing him' and upon his consent, bound to account.

The counsel for the appellant claims that the appellant takes this appeal because in no other way could he obtain a judicial determination of the question whether or not there is any valid order in existence by the terms of which he or his firm is required to submit to an accounting in this proceeding before the referee. We think it is impossible for him to obtain a judicial determination of that question in this proceeding, because he was a competent witness to prove the facts as to the trust estate. He is simply called here on an accounting between the person substituted to execute the trust and the executor of the deceased trustee. When any order is asked for requiring him to account, or requiring him to pay to the substituted trustee any sum of money, lie can then raise that question.

The only real question here is whether or not these interrogatories addressed to the appellant were relevant upon any controversy which was legally referred to the referee, and whether the referee had power to take testimony and compel a witness to answer. We think the court had power to refer this question to a referee; that the order referring it to á referee was valid and cannot be attacked collaterally; that upon an accounting by the personal representative of the deceased trustee, the referee had authority under the order to take testimony; that the question asked the appellant was. competent testimony upon such proceeding, and that the appellant was bound to answer the question.

The order appealed from should, therefore, be affirmed, with ■costs and disbursements.

Tan Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  