In re Taggard's Estate

This case differs from In re Wagner's Estate, 119 N. Y. 28, 23 N. E. Rep. 200, in that the instrument or release given by the legatees and beneficiaries in that case to the executors purported to be, and in the nature of the case was, in legal effect, a full discharge of the executor from his liability as such; whereas, in this case, the executor was also testamentary trustee, and the moneys coming to his hands were of the income of the property, and, in case of fire, from the insurance, and from sales; and, as he had .the power to receive moneys after the execution of the release, that release could only be considered as a discharge of the moneys he had theretofore received, and in no way a discharge of such as he might thereafter receive. If he has received any moneys since September 2, 1878, he ought to account for them. The petition does not clearly state that he has received any moneys since that date, but it is alleged that the hotel was destroyed by fire in August, 1882. It therefore became the duty of the testamentary trustee to collect the insurance, and sell the land, and invest the proceeds, and pay to the petitioner two-thirds of the income thereof. It is not stated what was done, but the petition alleges that the trustee holds in his hands a large amount of money, the rents and income of said estate, belonging to the petitioner. The trustee answers, and alleges the settlement of September 2,1878, but does not deny that he now has money in his hands belonging to the petitioner. We think the surrogate properly ordered the appellant as testamentary trustee to file an intermediate account. The order is authorized by Code Civil Proe. §§ 2723, 2803. Its purpose is to furnish information concerning the estate to those who are entitled to apply for it. Id. § 2514, subd. 9. It is a discretionary order. In view of the interest of the petitioner, and her lack of exact knowledge of the proceedings of the trustee, the discretion seems *631to liave been properly exercised by the surrogate. The account as first rendered will bind no one but the trustee, and, as he is to make it, the presumption is that he will do himself no injustice. It is true that the petitioner did not in terms apply for this order, but she applied for such an order as should be just, and the surrogate granted, as he ought, the order which he deemed most appropriate. In re Odell, (Sup.) 4 N. Y. Supp. 859. Thus far we assume the instrument of September 3, 1878, to be genuine. The appeal-book recites that it “was put in evidence,” and that implies proof or admission of its execution. But if any further proceeding in the case requires the determination of the question of the execution or delivery of this instrument, it will be proper for the surrogate to determine it. The jurisdiction which enables him to determine its genuineness extends also to its non-genuineness. No equitable jurisdiction is involved, but the mere determination of a fact material to the proper exercise of his statutory jurisdiction. With respect to the statute of limitations, we cannot know, until the account is before us, whether there will be any occasion to consider its application. The order should be affirmed, with costs. All concur.