
    George S. Conant, Appellant, v. George A. Wright, Eugene F. Seymour and Frances G. Seymour, as Executors, etc., of George De V. Seymour, Deceased, Respondents.
    
      Surrogate—power of, on a final accounting of a testamentwy trustee, to fix his commissions and appoint a successor, although the incumbent has not been formally discharged—-the surrogate not restrained from construing the will.
    
    A surrogate has power, under sections 2472, 2814 and 2818 of the Code of Civil Procedure, to adjudicate finally upon the accounts of a testamentary trustee, appointed under a trust to invest and collect the rents and profits of real estate, apply the income to the use of a life beneficiary and upon her death pay the principal to another; and he may, as an incident to such power, determine the amount of the commissions of the retiring trustee and against what fund they shall be charged, and may, at the same time, appoint a successor in the trust in place of a trustee who asks that his successor he appointed, although he himself, while directed to pay over the trust fund to his successor, has not been formally discharged as such trustee.
    The exercise of the power, specifically given by the statute to the surrogate to entertain such an accounting, will not be restrained because it is alleged, in an action brought by the remainderman, that a construction of the will, which created the trust, will become necessary; if questions do.arise which are beyond the jurisdiction of the surrogate, proceedings can then be taken to have those questions properly determined.
    
      Quaire, whether a surrogate has not power to construe a will, so-far as it may become necessary, in settling the accounts of a trustee.
    Appeal by the plaintiff, George S. Conant, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 5th day of April, 1897, upon the
    
      decision of the court rendered after a tidal at the St. Lawrence Special Term sustaining the defendants’ demurrer to the plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal an order bearing date the 10th day of October, 1896, and the interlocutory judgment dated March 26, 1897, entered in said clerk’s office sustaining said demurrers.
    The decree in question was entered upon the petition of Isaac L. Seymour as surviving trustee under the will of George R. Seymour, for an accounting by himself and the executors of his deceased co-trustee, to the end that he might be discharged from his trust.
    The decree recited that satisfactory reasons existed for allowing him to account, appointed George A. Wright his successor, and directed that Seymour and the executors of his deceased co-trustee should pay over the trust property to Wright, “ to the end that a final decree may be made discharging them accordingly, and accepting the resignation of the said Isaac L. Seymour, sole surviving trustee, as aforesaid.
    
      Eustace Conway and Charles R. Westbrook, for the appellant.
    
      R. E. Waterma/n, for the respondent Wright.
    
      Eugene F. Seymour, for the respondents, executors.
   Parker, P. J.:

The appellant in this case claims that the surrogate had no jurisdiction to make a decree that would place any charge or incumbrance upon the principal of the trust fund in question.

That fund was created by the will of George R. Seymour, deceased, and at the time the decree in question was made was in the custody of Isaac L. Seymour as sole surviving trustee under such will, and of Eugene F. Seymour and Frances G. Seymour, executors of George D. Seymour, a deceased trustee under such will. On the petition of said Isaac L. Seymour, praying that the executors of said deceased trustee account for so much of the trust estate as had come to the hands and possession of their testator, and that the petitioner be allowed to resign his trust, and that a judicial settlement of their accounts as such trustees be had, and a successor be appointed to succeed him in its management and control, the surrogate of St. Lawrence county issued a citation to all parties interested in such trust fund to attend such settlement, and to show cause why a decree should not he made in accordance with the prayer of such petition. That citation was duly served upon all parties interested, including this plaintiff, and the surrogate thereby acquired jurisdiction both of the person of this plaintiff and of the subject-matter referred to in the petition. That such subject-matter was within the scope of the jurisdiction conferred by statute upon, the surrogate clearly appears from sections 2472, 2814 and 2818 of the Code.

The appellant’s counsel, however, seems to argue that, notwithstanding the fact that the Code gives the surrogate jurisdiction to settle and finally adjudicate upon the accounts of a testamentary trustee (§ 2814), and to entertain and grant the application of a testamentary trustee to resign his trust, to have his accounts judicially settled and to appoint-a successor (§§ 2814, 2818), nevertheless the surrogate does not thereby acquire any jurisdiction to make any decree that would justify a charge against the principal of the. trust fund in question. That fund was in the hands of the petitioner, in trust, to invest, collect the rents and profits and pay the income therefrom over to Sophia M. Conant for her life, and upon her death to pay over and transfer the same to this plaintiff. The adjustment of the trustee’s lawful commissions under such trust and the expenses of such accounting, were necessarily included in such an accounting. The judicial settlement of his account would be incomplete unless it determined how much was to be credited him for commissions, and against what fund it was to be charged. To illustrate, suppose the trustee in this instance had each year, for all the years he had administered the trust, paid over the whole income to Mrs. Oonant and charged against the principal annually a certain sum for commissions, and had claimed to be credited such sums upon this judicial settlement of his accounts, would not the surrogate have had jurisdiction to determine that such charge against the principal fund was not lawful, and to have decreed that he must be charged with the full amount of that fund, as property in his hands ? It seems to me clear that he would. (Whitson v. Whitson, 53 N. Y. 479.) And it does not affect the question of his jurisdiction that he decides such, question incorrectly. The power to determine such question is incident to the settlement of the trustee’s accounts. It is a requisite to the exercise of the power of judicial settlement of such accounts, and as such was — to use the phrase of the justice at Special Term — “ within the judicial grasp of the Surrogate’s Court.” (Riggs, etc., v. Gragg, etc., 89 N. Y. 479; Laytin v. Davidson, 95 id. 263, 267.)

There is a plain distinction between this case and that of Losey v. Stanley (147 N. Y. 560), upon which the appellant relies. In that case the court first determined that, under the trust, the remainder after the termination of the life estate was vested in certain infant children, and that hence the property ordered to be sold was the real estate of infants. It then decided that the Supreme Court never had any jurisdiction to order the sale of real estate of infants, except such as the statute gave it; and that, inasmuch as the proceedings which ordered the real estate sold in that case had not been taken under the statute, the court was utterly without jurisdiction to make it, and that, therefore, the sale could be attacked collaterally. Such decision has no bearing upon the question above discussed.

The further objection, that the surrogate had no jurisdiction to appoint Wright as Isaac L. Seymour’s successor, until after the order was entered accepting Seymour’s resignation and discharging him from the trust, is not well taken. Practically, Isaac L. Seymour’s right to further execute the trust had ceased by force of the order already entered. The criticism goes to a question of practice, rather than to one of jurisdiction.'

The further claim, that this action is necessary to restrain Wright’s proceedings in Surrogate’s Court for a judicial settlement of his accounts, as trustee and successor to Isaac L. Seymour, for the reason that a construction of the will under which the trust was created will be necessary, cannot be sustained. The right to settle such accounts is squarely given to that court by section 2472 of the Code, and such a proceeding should not be enjoined upon the mere claim that questions will arise therein which the surrogate has no jurisdiction to decide. If they do arise, proceedings can then be taken to have them properly determined, but the jurisdiction to take the accounting is clear. Moreover, it is not at all clear that the surrogate has not jurisdiction to decide the question which the appellant claims will arise so far as it is necessary to a correct settlement of the trustee’s account. (Code, § 2743; Garlock v. Vandevort, 128 N. Y. 374; Riggs v. Cragg, 89 id. 492; Matter Verplanck, 91 id. 439.)

It seems clear that the Surrogate’s Court had jurisdiction to act in the matters specified in the petition of Isaac L. Seymour, and that the decree made thereon is conclusive, as against this plaintiff, until it is revoked or reversed on appeal. (O'Connor v. Higgins, 113 N. Y. 511.)

We conclude that the judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  