
    Emma Condit Smith, as Testamentary Guardian of Louise Condit Smith and Sallie Barnes Smith, Infants, Appellants, v. Central Trust Company of New York and William Pennington, as Trustee, etc., of Sallie L. D. B. Smith, Deceased, Respondents.
    
      A foreign will is .tobe construed in tlie foreign State■—an agreement, by a trustee which violates the trust is invalid.
    
    Sallie L; D. B. Smith, a resident of New Jersey, died and left a will which was admitted to 'probate in that State,-by which she constituted her husband trustee of a fund for her children during their minority, and. he deposited certain securities constituting the fund with the Central Trust Company in - the city of New York," under agreements which provided that the trust company-should retain possession until .the majority or death of the children; pay the interest to him during life, and after his death to the guardians of the children appointed by his will, or by some court of competent jurisdiction; deliver the • - securities to the children at their majority, and in case of their death before majority deliver them to the next of kin under'the law of New Jersey of the child so dying.
    The husband died and appointed as guardian of the children his second wife, Emma Condit Smith, but before his will had been'admitted to probate in this State, the chancellor of New Jersey had made. an order appointing William Pennington trustee for the infants, and Pennington, thereupon served notice upon the Central Trust Company to pay over the securities and income to no one but himself.
    In an action brought by Emma Condit Smith, as guardian, to obtain a decree . that Pennington had nd interest in the securities' nor" their income, and that the trustee account to her for the income,
    
      Held, .that the proper, construction of the will was to be determined solely by the. courts of New. Jersey, and that the order appointing Pennington trustee was valid and could not be attacked in the State of New York for irregularity, but -only for want of jurisdiction in the New Jersey court to make it;
    That such jurisdiction existed and was not affected by the fact that, the infants were not domiciled in that State nor the property situated there;
    That the. new trustee was,not affected-in his; estate or -right to possession by the ■ ’ agreement of the original trustee that the Central Trust Company should cok lect the income, and' upon his death - pay it to the guardians of the-children, the latter provision being clearly invalid and one which the Central Trust Company would have no right to follow against the wishes of Pennington, the duly constituted trustee;
    That the action could not be maintained as one by which the guardian might obtain information as to the amount and condition of the property of her wards, as she was not entitled to this information from the Central Trust Company, but must obtain it, if at all, from the trustee.
    
      Appeal by the plaintiff, Emma Condit Smith, as testamentary guardian, etc.,, of Louise Condit Smith and Sallie Barnes Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.
    The mother of the. above-named infants was Sallie. L. D. B. Smith, who died in July, 1890, a resident of New Jersey. In that month her will .-.was .admitted to probate in Essex county of that State. After directing the payment of all debts, funeral expenses and a certain legacy the, will stated that, in. case the testatrix left children surviving her, certain articles of personal property should go to her husband, George Condit Smith, and then provided: “ I give, devise and bequeath the equal undivided half }:>art of all the rest of my property as aforesaid to my husband absolutely, and the other equal undivided half part thereof I give and bequeath absolutely to such child or children, and, if children, then in-equal shares; but I direct that my husband shall hold the same in trust for such child or children during its or their minority,, managing and investing the same according to law,.and from time to time applying such parts of the income thereof to the support,, maintenance and education of such child or children as he may think advisable; the determination of my husband as to such management, investment and application of income shall be final and without appeal or question, as I have full confidence in his good sense and discretion.”'
    The testatrix left surviving two infant children, the above-named Louise Condit Smith and Sallie Barnes Smith. By two agreements, made December 23, 1890, and May 25, 1891, her husband, George Condit' Smith, deposited certain securities representing the one undivided half of the estate held by him in trust for these children under the above provision of their mother’s will with the defendant trust company, the agreements providing that it should retain possession of them until the majority or death of the said children, collect the interest and.pay it over to himself during his life,, and after his death to the.guardians of the children appointed by his will or by some court of competent jurisdiction; deliver the securities to the children at their majority, and, in case of their death before majority, deliver the securities to the next of kin, under the New Jersey law,, of the child so dying. George Condit Smith subsequently died, and by his will appointed the plaintiff, his second wife* guardian of said children. This will was admitted to probate in New York county, of this State, on July 31, 1895. Previously thereto á petition had been presented to the chancellor of New Jersey by J. Condit Smith, the uncle of the children, as their next friend, for the appointment of a trustee under the will of .Sallie L. D. B. Smith in the place of George Condit Smith, and in pursuance thereof the defendant William Pennington was appointed such trustee by order of the Court of Chancery, made October 15, 1894. On the same day Mr. Pennington served notice upon the defendant trust company to pay over the securities and income thereof to no one but himself.
    The plaintiff, having accepted the appointment contained in the will of her husband and received letters of guardianship from the Surrogate’s Court of New York -county, brings this action to have it decreed that the defendant Pennington has no interest in the securities deposited with the defendant trust company, or the income derived therefrom, and to have the defendant trust company account to her for the income already collected. At the trial the complaint was. dismissed, and it was adjudged that the defendant trust company pay over to the defendant Pennington, as trustee under the will of Sallie L. D. B. Smith, the income of said securities.
    
      Alex. Thavn, for the appellant.
    
      John Brooles Lemitt, for respondent William Pennington.
    
      Adrian II. Jdlme, for respondent Central Trust Company of New York.
   Barrett, J.

The order of the chancellor of New Jersey appointing Mr. Pennington trustee for the infants, Louise Condit Smith and Sallie Barnes Smith, is a conclusive answer to this action. By this order the chancellor adjudged that a trust for these infants was created by the will of their mother, Sallie L. D. B. Smith, and that Mr. Pennington should execute that trust in the room and stead Of the trustee named in Mrs. Sallie Smith’s will. The order also conferred upon Mr. Pennington all the rights, powers, duties and privileges incident to the appointment. This order was within the jurisdiction of the Court of Chancery of New: Jersey. Mrs. Sallie Smith, the testatrix, was a resident of New Jersey. She died there, and her will was executed and probated there. The proper construction of that will was clearly determinable by the courts of New Jersey, and the judgment of its Court of Chancery thereupon cannot be questioned here. The appellant attacks the chancellor’s exercise of jurisdiction upon the ground that the infants, represented by her as testamentary guardian, were not domiciled in the State of New Jersey. This' point is without merit. The chancellor’s jurisdiction did not depend upon the residence or domicile of the infants, but upon the creation and existence of the trust in the State of New Jersey. It was the fact that Mrs. Smith died a resident of that State, and that her will was probated there, which gave the Court of Chancery jurisdiction. Whether the chancellor exercised that undoubted jurisdiction regularly depended upon the practice of the court of New Jersey. Counsel cites-the law of New Jersey in support of his contention that notice of the application for Mr. Pennington’s appointment should have been given to the plaintiff, with whom they (the infants) were sojourning.” But we cannot consider this citation. It was neither alleged nor proved upon the trial. It nowhere appears in the record ; and, even if it had been alleged and proved, the failure to give such notice amounted to but a mere irregularity, not affecting the jurisdiction. If the appointment was irregularly or erroneously made, the New Jersey courts are open to the appellant. . She can only complain here of a lack of jurisdiction ; and that complaint, we have seen, is entirely unfounded. The conclusion is inevitable that the title to the property in question is vested in Mr. Pennington for the trust purpose specified in Mrs. Sallie Smith’s will, precisely as it was vested in the original trustee, George Condit Smith. This conclusion is not in the least affected by the incidents : First, that the property embraced within the trust happens to be within this State ; and, second, that the infants are now living here. The property is in the hands of the Central Trust Company merely as custodian for the trustee. It is quite immaterial where the trustee places the trust ..property;; . "Wherever he places it he must account therefor to the courts of Hew Jersey, and there'is not the slightest necessity for calling him into any other jurisdiction. It is true that the original" trustee, in 2>lacing the trust property in the- hands of- the defendant corporation, agreed that the"company""should collect the income and pay it to Ihim during his. lifetime, and upon liis death pay such income to the guardians of these children. -This, agreement,'however, was revocable at any time; The trustee certainly could not abandon his duty in fhvor of á trustee of his- own appointment, nor could, he vary the legal effect of Ms own death upon the"trilst situation. The •provision in his agreement Av-ith the trust company-, that, upon; his death, that company'should' pay the income" of,-the trust fund to the guardians of the children, is. plainly invalid. The trust company still holds-the property as custodian — as-custodian,now for the.new trustee, Mr. Pennington ; and that gentleman is alone authorized to receive the income and apply it as directed in Mrs. Sallie Smith’s will.

- ,'The -'plaintiff, as guardian- -of these children, has no right, as against the trustee,, either to the "principal or income- of these securities. What part of. the income she should receive from the trustee for the iSMap.ort and. maintenance ¡of .the children is something with which, wd ‘have nothing to do. . Mr. Pennington’s attorneys, in their letter-to the, 23laintifi’s counsel of April 1, 1896, very -properly-offered,, on Mr. "Pennington’s behalf, to submit that-question,to the chancellor qf Hew Jersey. But the offer was rejected, substantially for the . reasons now assigned for ■ the- reversal of the judgment below.¡ -" ' ; • ' ■ ‘ .....

It is claimed that the complaint should not, in any aé23ect of the cáse, have-been dismissed, and that the qdaintiff is entitled, at least, to know where -her‘ward’s property is, and w-liat is its- condition. The difficulty with this position i's that she is not entitled to know these things from the defendant - corporation.. She may ultimately be entitled to’ know them from the trustee; If at any time, she is denied-information by the- trustée, which it is his duty to furnish, or if "he misconducts himself in any manner with regard to his-trust,, she can file her bill against- him for an account, or fqr any appellate, reheff. in the Court of Chancery of Hew Jersey, The object of her present suit- is to -obtai-p a judgment,.first, that the "trustee has no interest in either the securities Or the income in the hands of the trust company; and, second, that the trust company account to her for the income. She is not entitled to either relief. She has no title either to the securities or the income, and the trustee alone has such title. It follows that the trust company is answerable solely to the trustee, and .that any information which the plaintiff requires witli regard to the property must be obtained from him, and not from the trustee’s custodian. The trustee was here brought in as a proper party to an action for an accounting against the trust company. He was not independently proceeded against -as a trustee who had refused information with regard to the trust estate, or who had in any way misconducted himself. He was simply an adjunct to the action, against the trust company for the purpose of shutting him out altogether — in other words, for the purpose, not of obtaining information or an account from a lawful trustee, but of settling the question whether he was a.trustee at all.

The judgment was in all respects right arid should be affirmed, with costs to each of the respondents.

• Van Bbunt, P. J., Rumsey, Williams arid Patterson, JT., concurred. •

Judgment affirmed, with costs to each of the respondents.  