Opinion
May Term, 1899.
Samuel Seabury, for the appellant.
John C.L. Daly, for the respondents.
The petition avers that Charles E. Dority and James S. Duffy were executors and trustees of the will of Mary E. Dority, deceased. So far as important to any question raised by the present appeal, the will in its 12th clause provides as follows:
"I give, devise and bequeath to my executors the remaining one-fourth of all the rest, residue and remainder of my property, both real and personal, in trust, to invest the same and pay the income thereof to my said son, William Q. Dority, during his lifetime, and to pay the principal thereof to my said son, William Q., whenever in their opinion it shall be advisable to do so (and my executors shall be the sole judges of the advisability of paying over said principal), and if said principal shall not be paid over then, upon the death of my said son, William Q., I direct that the same be divided equally among my surviving sons, share and share alike."
The petition further avers that, by the terms of the will, the said trustees became possessed of $3,028, which they were required to invest as trustees, as provided by the will; that more than a year has elapsed since the said trustees accepted and entered upon the execution of their trust, but they have never made or filed an account, nor has there been a judicial settlement of said trust; that William Q. Dority died on June 22, 1896, and that the only surviving sons of the testator are Charles E. Dority and the petitioner.
The answer of the trustees to the petition sets up the Statute of Limitations, and a general release by the petitioner of all his right, title and interest in and to the said estate. The surrogate based his decision denying the application upon the ground that the release to the executors, being of every interest which he possessed in the estate, was conclusive as a bar in answer to this application.
We are unable to assent to this view. The executors of the will occupied the dual positions of executors and trustees; consequently the duties which devolved upon them were distinct and separate duties — as much so as though the respective duties were devolved upon distinct and separate persons. ( Laytin v. Davidson, 95 N.Y. 263; Phœnix v. Livingston, 101 id. 451.) The release being of their liability as executors, does not operate to release them from their obligations and duties as trustees. ( Matter of Taggard, 41 N.Y. St. Repr. 796; affd. on opinion below, 138 N.Y. 610.)
We are not able upon the disposition of this appeal to determine whether the Statute of Limitations is a bar to an application for an accounting or not. The averment of the answer is not conclusive of such question, and it can only be properly disposed of upon the hearing before the surrogate. It is true that the petition does not in terms aver that the trustees as such have any money or property of the estate in their hands for which they are required to account to the petitioner; but it does appear that moneys have come to their hands of which they have made no account, and that in fact no account as trustees has ever been rendered. The answer of the trustees does not deny these averments, nor does it show that the trustees are not in possession of money and property for which they should account.
It is clear from the clause in the will above quoted, that the petitioner is a person contingently interested in the estate, and as such he is entitled to an accounting whenever his interest is made to appear by a duly verified petition, unless he has been excluded by judgment, decree, or other final determination from which no appeal is pending. (Code Civ. Proc. § 2514, subd. 11.) This provision of the Code is absolute, except that it does not deprive the surrogate, in the exercise of his discretion, of authority to deny the application, where it appears that the petitioner is not entitled upon the face of the proceedings to the order which is asked ( Matter of Wagner, 119 N.Y. 28, 34), but in the present case no such fact appears. As we have seen, the release was insufficient to discharge the trustees. The provisions of the will show a contingent interest, and the trustees, with all the facts within their knowledge, have not seen fit in their answer to set up, if such be the fact, payment to the cestui que trust named in the will, and if there has not been such payment, and they are not otherwise discharged, the petitioner becomes entitled to take by virtue of the provisions of the will.
It follows that the order should be reversed, and the proceedings remitted to the surrogate of Kings county.
All concurred.
Order reversed, and proceedings remitted to the surrogate of Kings county for further hearing.