There is no merit in this appeal. The appellant is a testamentary trustee under the will of Mrs. McCarter, and the petitioner a person interested in the trust fund. He was, therefore, upon presenting a proper petition, entitled to an order directing the trustee to account (Code of Civil Pro., §§ 2803, 2804), and for that purpose the petition was sufficient. It set out the facts already adverted to, alleged that the petitioner was, by the terms of the will, entitled to the interest arising from the trust fund, that it was so invested as to yield an annual income, of which at least $337.75 was then in the hands of the trustee, and that he refused to pay it over to the petitioner; that more than one year had elapsed since the probate of the will, and that there had been no judicial settlement of the account of the trustee.
The answer of the trustee to this petition denied neither the validity nor legality of the claim, and it, therefore, became the duty of the surrogate to hear the allegations and proofs of the parties, and make such decree in the premises as should be right. (§ 2805.) *Page 562
It is true, as the appellant now says, that the petitioner also set out a claim on the part of the trustee that the petitioner had deprived himself of any right in the fund by assignment of the same, but the petition at the same time says that the assertion is unfounded. The answer also set up in bar an action pending in the Supreme Court, in which the trustee is plaintiff, and the beneficiary and others are defendants, for the purpose of settling conflicting claims, alleged by him to have been made upon the fund and its income. No proof was given in support of the allegation, nor does it, or the facts referred to in the pleadings, in any way tend to prove that the petitioner's claim was of doubtful validity. There is nothing to show that the action was necessary, or even brought in good faith. But if it was otherwise, in the absence of that denial which the Code (§ 2805) requires, its pendency was of no importance. (Hurlburt v.Durant, 88 N.Y. 121; Fiester v. Shepard, 92 id. 251.) These cases give construction to a statute relating to the liability of executors under similar circumstances, and are conclusive here. There was, therefore, no ground on which the surrogate could refuse to entertain the proceeding, and his order that the trustee account cannot be said to be one which justice did not require. (§ 2805.)
Nor was there any error in the final order after the account was taken. The exceptions of the trustee to the disallowance of items, and to the decree then made, have, however, been considered by the surrogate and General Term, and require no additional comment.
As to costs it was within the discretion of the Supreme Court to impose the costs of the appeal upon the trustee, whose conduct had occasioned them, and, we think, he, and not the trust fund, should bear the further burden of this unsuccessful appeal from its decision.
The judgment of the court below should therefore be in all things affirmed, with costs to be paid by the appellant personally.
All concur.
Judgment accordingly. *Page 563