Appeal from Special Term, Kings County.
Action by George W. Seaward, administrator with the will annexed of William Z. King, deceased, against Buell G. Davis, executor of Mary E. King, deceased. From a final judgment, and also from an interlocutory judgment, for plaintiff, defendant appeals. Interlocutory judgment modified and affirmed. Final judgment reversed.
[117 N.Y.S. 469]
Frederick H. Tasker, for appellant.
Robert H. Wilson, for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, JENKS, and BURR, JJ.
This appeal from a final judgment brings up the interlocutory judgment. The action is by the administrator c. t. a. of King against the executor of King's widow. King's will, as construed by us in Tuthill v. Davis, 121 A.D. 290, 105 N.Y.Supp. 672, gave to his wife the use of both the real and personal property during her life, with the beneficial power of disposition of the latter, remainder to certain specified persons. Mrs. King, as executor of her husband, made final accounting in the Surrogate's Court, and by its decree she personally came into possession of $17,268.50 in chattels, money, and bonds. The theory of the action is that the defendant in his representative capacity should account for this personal property, and it went to judgment for the total amount thereof, with interest. Mrs. King did not take this personal estate as a corpus, to be preserved by her as trustee for the remaindermen. She was not limited by the terms of the will in the use or consumption or disposition thereof during her life. She was regarded as a trustee or quasi trustee as to any remainder which she had not used, consumed, or disposed of during her life. Thus in the principal case relied upon by the appellant- Smith v. Van Ostrand, 64 N.Y. 278-t');">64 N.Y. 278-the court say:
" This disposition, if valid, would entitle the plaintiffs to so much of the fund as on her death remained unexpended for her support, and this portion of the fund she held in trust for them."
Or, even if such a trust was fastened on the personalty when she personally received it, she was in no way hampered in her personal use, consumption, or disposition of this estate, or required to account as if for a trust fund to be kept intact, but the trust, so to speak, [117 N.Y.S. 470] shifted from time to time from what she personally used, consumed, or disposed of to what remained, and thus it might become barren before she died or at the time of her death. In such an action it must appear that the party called to account must have been intrusted with property of the plaintiff, and is bound to show his dealings with it. There must be a fiduciary relation. Schantz v. Oakman, 163 N.Y. 148, 57 N.E. 288; Marvin v. Brooks, 94 N.Y. 71.I think that the burden was upon the remaindermen to show that there was at the death of Mrs. King a remainder to which they were entitled within the principle of the rule established in Swarthout v. Ranier, 143 N.Y. 504, 38 N.E. 726.I do not, however, mean to say that the mere fact that there was no corpus extant at her death was absolutely conclusive against the remainderman. Swarthout v. Ranier, supra; Perry on Trusts (5th Ed.) 540, note " a." Trusts of personalty vest in the executor (Schenck v. Schenck, 16 N. J. Eq. 182, and authorities cited), and by accepting the office of executor the defendant became liable for any amount which came into his hands. As to such amount it became his duty to settle an account of the testator in relation to the trust, and to pay over any estate found due to the beneficiaries. Perry on Trusts, § § 264, 344; Schenck v. Schenck, supra; Moses v. Murgatroyd, 1 Johns. Ch. 118,7 Am. Dec. 478.
The Special Term found that Mrs. King did not during her lifetime use or dispose of for her own personal use all of the said personal property and assets, but that at her death part thereof was in her possession, and was received by and now is in the possession of the defendant. Thereupon it made an interlocutory decree that the defendant file an account of the acts of Mrs. King with reference to the personal property received by her, that the defendant charge himself in that account with $17,268.50, together with interest, and, upon failure to file said account, that final judgment follow. After delay the defendant filed an account wherein he stated that, so far as he had been able to ascertain with due diligence, the said Mrs. King kept no account of the funds and property which she received from the estate of her husband, set forth the inventory of her husband's estate as filed, showed that the appraisers had set aside certain assets for the widow, and of the remaining assets, which principally were made up of $300 cash, $1,000 on deposit in the Seamen's Bank, and $15,820 in bonds, that he found and filed an account of certain chattels valued at $63.50. The account closed as follows:
" I have found no cash in the Seamen's Bank for Savings, nor any government bonds among the assets left by Mary E. King, deceased, nor have I found any records or accounts showing what became of the said funds."
Thereupon the plaintiff moved the Special Term for final judgment on an affidavit that the defendant had not obeyed the interlocutory judgment, in that (principally) he had not charged himself in the account with the said $17,268.50. The defendant filed an affidavit attempting to show his good faith and his difficulties. The court directed final judgment. The account as filed was not a compliance with the interlocutory decree. And, indeed, it is unsatisfactory, as, e. g., the final statement thereof (supra) may be entirely consistent with the [117 N.Y.S. 471] fact that both the cash left and represented by the deposits of the husband of Mrs. King and the proceeds of the bonds (due in 1907) may have come into the defendant's hands. But I think that the trial did not establish that the defendant was chargeable with this $17,268.50 in the sense that it was a trust fund which existed at the death of the testator. The plaintiff offered no evidence which showed or which tended to show that any part whatever of this personalty remained at Mrs. King's death, or even should have remained. The plaintiff's case rests upon proof that this amount was received by Mrs. King under a decree of the Surrogate's Court, and an admission that Mrs. King left $5,000 in personal property, but qualified, in that it was not received from her husband's estate. Despite the qualification, this admission would be sufficient to justify a decree for an account. Perry on Trusts, § 128. If Mrs. King had property from other sources, she was not bound to keep the property received from her husband's estate separate, and she incurred no penalty or forfeiture by mingling the two without fraud. But equity will follow to separate the properties, and put upon the accounting party the burden of distinguishing them. Cox v. Wills, 49 N. J. Eq. 573, 25 A. 938, and cases cited. Although an account is not a matter of right, it is not essential in order to obtain it that the cestui que trust should show that anything will be his due. Frethey v. Durant, 24 A.D. 61,48 N.Y.Supp. 839.I think that the conclusion of the Special Term that there must be an account should not be disturbed. But I advise that the interlocutory judgment be modified, in that it should not charge against the defendant this $17,268.50 as if it was a remainder for which the testator or her successor must account. The amount thus received might, of course, be relevant on the accounting, but mere proof of its receipt did not establish prima facie that such sum was the remainder upon which a trust for the remaindermen fastened.
The interlocutory judgment modified, and, as modified, affirmed, without costs. Final judgment reversed, without costs.
WOODWARD and GAYNOR, ...