This is an action at law, and we are clearly of the opinion it cannot be maintained upon, the facts appealing in the record. The general rule, well established, is, that “ the remedy of beneficiaries of a trust, against a trustee where the trust is open- and continuing and the accounts of the trustee have not been settled and adjusted and a balance ascertained, is in an action for an accounting in equity; and that an action at law either for money had and received,, or in any other form, will not lie in the first instanced (Van Camp v. Searle, 147 N. Y. 150-161; Husted v. Cruikshank, 14 N. Y. Supp. 526.) In the latter case, which is the same we are now considering, the Court at General Term in this department, on demurrer to the complaint, held'that the action being one at law would not lie to recover plaintiff’s share in this estate merely because it had been determined that the plaintiff was entitled .to the one-eleventh part of the estate, there having been no accounting to determine the amount of such share -which. the trustee was to pay to. the plaintiff. It was not alleged in the complaint that the action hereinbefore referred to had been brought for an accounting, and the decree of March 6, .1890, had been, entered. This fact .is alleged in the present complaint, and Was proved on the trial and it is claimed that upon this additional showing, this action at law can be maintained. We think not. Even in the action for an accounting the amount of the share of this plaintiff was never ascertained at all. And even if it had been determined as of that date, still the action for a construction of the will had not then been determined. Proceedings were subsequently had therein, another trial took place,' and another decree was entered. It was very likely additional expenses were incurred by the trustee in that action, and a new: accounting to some extent at least would have been necessary in order to determine the precise amount of the fund in the hands of .-the trustee to be distributed and the exact amount to be paid to *69each beneficiary under the will. Moreover, this plaintiff never became a party to that action for an accounting, and it was not determined that at that time he rather than his assignees was entitled to be paid the amount of the one-eleventh interest in the estate, whatever the amount might be.
This action at law cannot, therefore, be maintained. The plain-tiff must, in the action for an accounting brought by others, become a party and have the amount of his share definitely ascertained therein, or else bring a separate action himself for that purpose and obtain the same relief in such action before he can maintain such an action as this at laxv.
The theory of such an action as this is that the amount to which the plaintiff is entitled has been definitely ascertained by judicial determination and that the trustees’ only duty is to pay over. In effect the action is personal in its nature for a failure of duty on the part of the trustees. It is in the nature of an action for money had and received by the trustee for the plaintiff. (Power v. Hathaway, 43 Barb. 214, 219.)
The original trustee having died and the defendant having been substituted in his place, the action cannot be continued against him, it not being shown that he has receix'ed the money or is under any personal obligation to pay xxdiat he had not received.
Our conclusion is that the learned trial court erred in denying the defendant’s motion to dismiss the complaint and directing a verdict for the plaintiff.
The judgment should be reversed, xvith costs of the appeal, and judgment ordered for defendant dismissing plaintiff’s complaint, with costs.
Van Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred.
Judgment reversed, xvith costs of appeal, and judgment ordered for defendant dismissing complaint, with costs.