— Charles Curry died leaving an only daughter name Ella Curry, about eight years of age. He also left a' last will and testament by which he gave all his property to *564this daughter, with the income and profits thereof. By it he also desired his executor, the defendant Peter Staats, to take charge of his property, rent out the real estate, take care of his household furniture and other property until his daughter attained the age of twenty-one years. Then follows these words:
“ And I do request that my said executor shall provide my said child with a suitable home and see to her education and pay for the same out of my said property and to sell and convey my real estate at any time during tfie minority of my said daughter, and also sell my furniture at any time in his judgment it will be for the interest of my said child.”
The will was proved and Staats became the executor and the defendant, Hobart Griffin, was appointed the general guardian of the child Ella. He placed her at school with the plaintiff, who is the proprietor of a boarding school, and there is due to her for board, tuition and supplies furnished to the child, $434.68.
This action is brought to procure the application of the money of the child to the payment of the plaintiff’s claim, and there is sufficient for that purpose now in his hands.
It is to be noticed that by this will the property is all given to the child absolutely, and then the executor is clothed with a power of sale. Then the executor is requested to take charge of the property, rent the real estate, provide the child with a suitable home, see to her education “ and pay for the same out of my said property ” so it comes to this: the executor holds property belonging to this child, out of which he is to pay sufficient to provide her with a suitable home and her education. The fund is held in trust for that purpose, and its application can be enforced by the courts.
It is quite immaterial what the action is called which is instituted to enforce this duty resting on the executor. There is but one form of civil actions in this state (Code Civil Pro., sec. 3339). In the administration of justice, our courts are untrammeled by distinction between legal and equitable *265remedies. They are all abolished and parties are no longer turned out of court because they make mistakes in the remedy they pursue.
On the contrary, if the case they make entitles them to any remedy, it must be granted where an answer has been interposed even in disregard of the prayer for relief (Emery agt. Pease, 20 N. Y, 62).
In view of these principles there has been an evident miscarriage of justice in this case. This is not an action to reach assets and apply them to the payment of a claim. It is an action to compel the performance of a duty or if you please to call it so, an action to enforce and compel the execution of a trust. The contract for the maintenance and education of this child was made by her. guardian with the plaintiff, with the knowledge of the executor, and the justice of the claim is manifest and undisputed.
The executor has in his hands a fund expressly appropriated by the will to the payment of claims like that of the plaintiff and the court will, compel its application. In this case a trust has been created by the will for the payment of this and other similar debts, and the courts are bound to take care that the trust is executed. The assets and property of this estate were placed under the jurisdiction of the court by the creation of the trust (Benson agt. Leroy, 4 John Ch., 650).
Ho difficulty will be experienced in entering the proper judgment. It was proper to make the infant child and her general guardian parties to the action to the end that they might be afforded an opportunity to dispute and litigate the plaintiff’s claim.
Besides, it is the property of the child in the hands of the executor which is sought to be applied to payment of the claim. The executor is a proper party too, because he is to be forced to the performance of his duty. The judgment will be in form against all the defendants for the amount of *266the plaintiff’s claim to be paid by the executor out of the funds in his hands appropriated by the will.
The judgment should be reversed, the order of reference vacated and a new trial granted, costs to abide the event.