—It appeared upon the trial that testatrix, Mary Jewett, died on January 31, 1887, leaving a last will and testament, whereby she constituted the defendants and one Benjamin K. True executors and trustees thereof. The will was duly admitted to probate, and said persons duly qualified as such executors. The questions that arise upon this appeal relate to the ninth clause of the will, which reads:
“Ninth* I give and bequeath to my executors and executrix, in trust, so much and such a sum of money as will enable them to invest the same (vphich they are hereby directed to do), and keep the same invested, and therefrom produce a net income of "sixty dollars per year, which sum I hereby give and bequeath to the colored man, Isaac Thompson, now living with me, and which sum I direct to be paid to him in quarterly payments during his natural life; and the principal sum so invested I give and bequeath to the herein mentioned Benjamin K. True and to Allen
In the course of administration of the estate, the funds,-as received, were placed in bank to the credit of the estate, checks upon which were payable only when signed by two of the trustees. About May 9, 1887, it was determined by the trustees to invest the sum. of $1,500 for the purpose of securing payment of the annuity; and on that day the defendant George F. Hicks and True drew antj. signed a check, upon the estate account, for the sum of $1,500, and the same was delivered to True for the purchase of United States bonds. True never invested the money in any securities, but converted the same to his own use. He paid a part of the annuity irregularly, in small amounts, and died insolvent, about December, 1891. On October 30, 1888, a judicial settlement of the accounts of the executors was had before the surrogate of Richmond county. In the account as presented, the executors credited themselves with the sum of $1,500, and for the “amount set apart for annuity of Isaac Thompson as per Schedule E, 1st. Thereupon, the court entered a decree settling the accounts, and directed “ that the sum of fifteen hundred dollars mentioned in Schedule E,- 1st, of the account of said executors and executrix, as cash paid to Benjamin K. True, executor, for purchase of United States bonds, being the amount set apart for the purpose of raising the sum of sixty dollars per annum for Isaac Thompson, and now held by Benjamin K. True, be hereafter held by said executors and executrix as trustees under and pursuant to the trust created by the ninth clause of the will of said testatrix,, and that said sum be invested by them forthwith according to law, in the name of said executors and executrix, as such trustees, and kept invested in their names to answer the terms of said trust." Up to the time of entering this decree, neither of defendants has interested himself in the slightest to see that True executed the commission by investment of the funds intrusted to him. After the entry of the decree, defendant George F. Hicks, acting for himself and his co-executor, demanded the money of True or its investment, but did not produce compliance with either demand. About May 21, 1889, Thompson instituted proceedings to punish True for contempt for failure to comply with the decree directing him to invest the money. This seems not to have proceeded beyond an order to show cause and its service, and no adjudication was had thereon. The court below found that defendants and True had neglected to invest the zhoney and produce the annuity, and that the defendants were negligent in not calling True to account, and attending to the investment of • the money in the bonds, and adjudged that they be charged as trustees with the sum of $1,500; directed that said sum be forthwith invested so that it shall produce a net income of $60 per annum, which sum shall be paid to plaintiff during his natural life, in quarterly payments, beginning January 1, 1895; and that plaintiff have judgment for the unpaid annuities and costs, amounting in the aggregate to $389,35.
It is further claimed that no power to amend the complaint existed in the court. It is true that the complaint was framed upon the theory of recovery for the annuities due and unpaid. Such is its prayer for relief. But all the facts were pleaded which entitled plaintiff to a recovery, and tile relief granted was fairly within the scope of the issue. The parties tried the action upon the theory that defendants were to be charged for the money sufficient to pay the annuity or to be relieved entirely. All the evidence was introduced without objection, and the court was authorized to permit any judgment consistent with the complaint and embraced in the issue. Code Civ. Proc. § 1207 ; Hale v. Bank, 49 N. Y. 626 ; Thacher v. Association, 46 Hun, 594.
The complaint alleged, in its seventh paragraph, that defendants had failed and neglected to invest the money or pay the annuity, and had illegally appropriated the money to their own use and benefit. This alleged negligence and the amendment allowed did not change the cause of action. It embraced .a new allegation of negligence, but did not bring in a new cause of action. It was therefore within the power of the court to allow it. Davis v. N. Y., L. E. & W. Railroad Co., 110 N. Y. 646; 17 St. Rep. 172. If it were otherwise, it does not appear that defendants objected to the order amending the complaint. The order recites that the application to amend was made upon the trial in order to conform it to the evidence and facts. For aught that appears, defendants consented to the amendment, and they cannot now be heard to object thereto.
While we reach the conclusion that the defendants are chargeable with the annuity secured to be paid by the terms of the will, we° think the judgment itself is unnecessarily onerous in compelí
Judgment appealed from should be modified as above, security to be approved by a justice of the supreme court, and, as modified, affirmed, with costs.
All concur.