Appeal from Order of Surrogate, New York County.
Proceedings by E. Caroline Capen against Margaret G. Kopper and another, executrices of Charlotte E. Jenkins, deceased, to compel an accounting. From an order directing the accounting, the executrices appeal. Reversed, and proceedings dismissed.
[117 N.Y.S. 75] Allen Wardwell, for appellant Kopper.
Bangs & Van Sinderen (Howard Van Sinderen, of counsel), for appellant Jenkins.
Ritch, Woodford, Dovee & Butcher (William F. MacRae, of counsel), for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
Appeal from an order of the surrogate requiring Margaret G. Kopper and Sarah R. Jenkins, as executrices and trustees of the estate of Charlotte E. Jenkins, deceased, to file an account of their proceedings as such executrices and trustees from the date of the last accounting by Margaret G. Kopper. The petitioner is the granddaughter of Charlotte E. Jenkins and the daughter of Margaret G. Kopper. Charlotte E. Jenkins died December 17, 1862, leaving a last will and codicil, which was duly probated. The fourth paragraph of the will provided as follows:
" I give and devise to my husband the one-fourth part of the net rents, issues and profits of my real estate, subject to the provisions hereinafter contained, during his natural life and so long as he remains unmarried, and no longer."
Such life interest was terminated by his marriage in 1866.
" Fifth. I give and devise to each of my three children, one equal fourth, and after the decease of their father, one equal third part of the net rents, issues and profits of my real estate, to have and to hold each for and during the term of his or her natural life, with remainder in fee as to the share of each after his or her death, to his or her children or issue; and in case of the death of any without issue to the survivors or survivor and issue of any deceased."
One of the three children provided for in said paragraph of the will, Mary C. Jenkins, died in 1869, without issue, leaving Margaret G. Kopper and Sarah R. Jenkins, the appellants in this proceeding, as [117 N.Y.S. 76] the only surviving children of the testatrix. The executors of the estate were named in the codicil executed November 18, 1862, and were Rev. George B. Draper and the two daughters of the testatrix, Margaret G. Jenkins, now Mrs. Margaret G. Kopper, and Sarah R. Jenkins. Rev. George B. Draper alone qualified and acted as executor until 1867, when Margaret G. Kopper qualified as executrix. On the 8th day of December, 1869, Mrs. Kopper filed her account as executrix, in which she accounted for all moneys and properties which had come into her hands as such executrix, and she was thereupon duly discharged as such executrix on November 26, 1870. As there is no allegation in the petition that any further sums have come into her hands as such executrix, and as it is specifically alleged by this appellant that she has accounted for all moneys and properties which have at any time come into her hands as such executrix, which is not denied, a further accounting as executrix will not be ordered. Matter of Hood, 90 N.Y. 512; Matter of Soutter, 105 N.Y. 514, 12 N.E. 34.
In April, 1870, Sarah R. Jenkins began an action to partition all the real estate of which the testatrix died seized. The defendants in that action were Margaret G. Kopper, Frederick Kopper, her husband, Margaret G. Kopper, Jr., George B. Draper, as executor, and Margaret G. Kopper, executrix. The respondent herein, who is the daughter of Margaret G. Kopper, was born in the year 1870. Pending said action, and by supplemental complaint filed on the 27th of February, 1871, she was made a party to said partition suit, and she appeared therein and filed an answer by her guardian. All the real property of which the decedent died seised was included in this partition action. The amended complaint in said action set forth that Sarah R. Jenkins was seised in fee and possessed of one equal sixth part of the lands and real estate of the decedent as tenant in common and Margaret G. Kopper was likewise seised in fee of one equal sixth part of said lands and real estate as tenant in common. This referred to the portion of the real estate left to the testatrix's daughter, Mary C. Jenkins, who was then dead. The complaint then proceeded:
" That the plaintiff, Sarah R. Jenkins, as a devisee of said Charlotte E. Jenkins, is entitled to an estate for and during her natural life in and to one equal undivided third part of said lands and real estate as a tenant in common, with remainder in fee to her issue, if she leave any issue, and, if she die without issue her surviving, then that such remainder in fee will belong to the said defendant Margaret G. Kopper, if she be then living."
This was followed by a similar statement in regard to the other third of the estate, to the effect that Margaret G. Kopper was entitled to a life interest in the same, with remainder over as in the case of Sarah R. Jenkins. The final judgment in the partition action was entered March 1, 1872. Said judgment, after disposing of the proceeds of the sale of 121 William street, which was sold by the order of the court to pay the expenses of the partition suit and to make equality of partition between the parties, made division of the property between Third and Fourth avenues, between 124th and 125th streets, so that a certain portion thereof, specifically described, was [117 N.Y.S. 77] allotted to Sarah R. Jenkins in fee, and another portion to Margaret G. Kopper in fee, in accordance with the prayer of the complaint of one-sixth of the estate to each in fee; another portion to " Sarah R. Jenkins for life, with remainder upon her death to the person or persons who, under and by virtue of the provisions of the will of Charlotte E. Jenkins, deceased, shall then be entitled to the same" ; and another portion thereof to Margaret G. Kopper for life with like provisions. This judgment finally determined the status of the parties, required the construction of the will of Charlotte E. Jenkins, which was before the court in full in the ...