Moorhouse v. Hutchinson

The Surrogate.

I must deny this application, so far as it seeks to compel the discharged trustee to exercise any power that she may be supposed to possess for directing, either separately or in conjunction with her successor, the disposition of the surplus income of this estate, and the payment of any sum to the petitioner out of any such surplus received by such trustee before her removal. For granting relief of that character, in a proceeding such as the present, I find no warrant in the statutes. This proceeding is founded upon § 2804 of the Code of Civil Procedure, and can properly be instituted only against a testamentary trustee in office. This respondent was displaced from office in August, 1885, at the petitioner’s instance.

The answer of the present trustee undertakes to set forth facts showing that it is doubtful whether the claim of the petitioner is valid and legal. The trustee fails, however, to make such a denial of the legality or validity of that claim as necessitates, when taken in connection with the alleged facts, a dismissal of the petition under § 2805. This section provides that, to entitle a respondent to such dismissal, he must, in addition to the allegation of facts, deny, either absolutely, or upon information and belief, the validity or legality of the petitioner’s claim. The respondent in the case at bar simply asserts that he is not possessed of knowledge or information sufficient to form a belief as to whether the claim is valid and legal or not.

I shall allow the respondent Trust Co. ten days within which to amend its answer in this particular, should it be so advised, and in that event the petition will be dismissed (Bank v. Camp, 3 Dem., 278 ; Hurlburt v. Durant, 88 N. Y., 121). Otherwise it will be further considered.