In re the Estate of Hutner

Petitioner applied for an order compelling respondents to account as executors and trustees. In the interim, respondents filed their account as executors and petitioner submitted a proposed order providing for the granting of the motion to account as executors and trustees. Respondents thereupon submitted amendments to the proposed order designed to strike out therefrom the provisions directing the executors to file their account as trustees.

Respondents are executors and trustees and petitioner is a legatee and remainderman under the will. Pursuant to subdivision 10 of section 262 of the Surrogate’s Court Act, petitioner will be a necessary party to the executors’ accounting, since the executors may not account to themselves as trustees. It appears from Schedule A-l of the filed account that respondents as trustees received trust assets more than two years ago at certain stated values which presumably served to establish the trust and now is tendered as a subject matter of the account. More than two years have elapsed since the executors distributed said trust assets to the trustees.

For the foregoing reasons, and pursuant to the provisions of section 258 (subd. 3, par. c) of the Surrogate’s Court Act, and to avoid multiplicity of proceedings, the application is in all respects granted and respondents’ amendments are disallowed. Respondents are required to account in their capacity as trustees as well as in their capacity as executors. Settle order on notice.