dissenting. The majority found that the trust of the late Senator McClellan:
“[B]y its terms, ceased to exist in 1973 . . .the instrument pursuant to which Mrs. McDermott acted as trustee provided that upon termination of the trust, the corpus would be paid to Senator McClellan. He was the only remainderman. There was certainly conduct on his part which could be characterized as consent that the appellant hold under a new trust or as bailee or in some other representative capacity. . . .”
The majority further stated:
“While we agree that an action against an individual is different from an action against that person as trustee, we do not find that distinction important here. . . . The question is not whether she holds the items as trustee, but whether she owns them outright as opposed to the estate. Her response to the evidence presented showing they are in the estate is that they are gifts to her.”
The pivotal issue in the case is not, as perceived by the majority, whether the Probate Court had jurisdiction to determine title to property, purportedly in possession of the appellant belonging to the estate of the late Senator John L. McClellan, but whether the Probate Court has jurisdiction to require a trustee to render an accounting of her stewardship.
The trust agreement, which was executed by the late Senator McClellan and appellant on December 31, 1963, while stating the trust would terminate ten years from the date of its execution provides:
“The trustee, without regard to any legal restriction otherwise applicable to trustees, shall be entitled:
(d) to continue to have or exercise after the termination of the trust in whole and in part and until the final distribution thereof, all the titles, powers, discretions, rights and duties conferred or imposed upon the trustee or by this agreement during the existence of the trust.
“The trustee may at any time render an account of her proceedings to the grantor, or, after the death of the grantor . . .” (Emphasis added)
Appellee’s petition filed in the Probate Court, purportedly raising an issue involving the title to the assets in the possession of appellant, makes the following pertinent and dispositive allegations:
“The executor states that there are unsolved controversies arising out of whether certain items or property of the estate are the individual property of Mary Alice McDermott. . . .
“Petitioner attaches hereto a copy of a trust executed by decedent in 1963 naming Mary Alice McDermott as trustee. The trust expired ten years after its inception.
“ . . . the executor prays that the court hold a hearing .. . to determine ownership of the above items.”
It is plain that the relief sought by appellee in the trial court against appellant is in her capacity as trustee and, accordingly, the Probate Court was without jurisdiction to entertain the matter.
It is well settled that the question of whether a court of equity has jurisdiction over a subject matter of an action is determined from the allegations of the petition. Scroggins v. Bowen, 249 Ark. 1155, 464 S.W. 2d 79; Graysonia N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S.W. 975.
Moreover, exhibits to a petition control its averments and the nature of the cause of action. Moore v. Exelby, 170 Ark. 908, 281 S.W. 671.
It is clear that the assets claimed by the appellee were purportedly delivered to appellant in her capacity as trustee and not in her individual capacity.
An action for the discovery and recovery of trust assets is peculiarly an equitable proceeding since a law court is not endowed with the machinery to adjust the rights and equities involved. Ferguson v. Rogers, 129 Ark. 197 (1917); Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848; Blanton v. First Nat’l Bank, 136 Ark. 441, 206 S.W. 745.
It is beyond debate that only a person occupying the position of trustee can be required to render an accounting of his administration of the trust estate. It is clear from the exhibit, the trust agreement, attached to appellee’s petition, that it was the intention of Senator McClellan that the appellant should be afforded the discretion to administer the trust even after the expiration date contained in the agreement; and that the trustee may at any time render an accounting, even after the death of the Senator.
I would reverse and remand the case to the Probate Court of Pulaski County to be transferred to the Pulaski County Chancery Court. Accordingly, I dissent.