In re the last will of Foster

Davis, P. J.: Anthony L. Hoguet was one of the trustees to carry out the provisions of the will of James Foster, Jr., and while acting as such [130] trustee he presented his petition to be relieved from the trust, and such proceedings were had that the prayer of his petition was granted. Some time after the order to that effect had been entered, Mary E. Whittelsey, the oestui que trust under the will, applied to have the proceedings by which Hoguet was discharged opened, upon allegations of an abuse of his trust in 'making improvident and improper investments, in respect of which she claimed an accounting. On this application an order of reference was made to ascertain and report the facts. Pending the reference, and while the investigation under it was proceeding, Hoguet died, and the oestui que trust, Mrs. Whittelsey, applied to have the representatives of his estate brought in as parties to. the proceeding by an order of the court, which should revive and continue the proceeding for that purpose. The order was granted, and the executrix of Hoguet brings this appeal from the order. The application of Hoguet to be relieved of the trust was properly made under the statute (1 R. S. [Edm. ed.], 680), and the court had jurisdiction in that form of proceeding. The order made was conclusive upon persons made parties to the proceeding, unless subsequently opened or vacated by the court or set aside for some alleged fraud, by a direct action for that’ purpose. It is not disputed but. that the court had power to entertain the application of the oestui que trust to open the order, and investigate the allegations upon which she asked that to be done; but it is urged that the death of Hoguet arrested the proceeding and deprived the court of all power to continue it. We do not think that result follows. The direct object of the proceeding was to establish a personal liability against Hoguet, growing out of the alleged mismanagement of the trust, and the order 'of the court stood across the path of that proceeding. It was a complete answer to the claims and allegations of the oestui que trust, while it stood intact as a record of the court. The equity powers of the court were broad enough to entertain a direct application on broader grounds, than would uphold a suit to avoid the discharge for frauds ; and it was not at all necessary to .require the oestui que trust to resort to an action. In entertaining the application and directing the reference to ascertain the facts, the court acted within its clear equitable powers, and the oestui que trust acquired rights in the proceeding of which she [131] ought not to be deprived by the death of Hoguet. The proceeding directly affected his estate which, by his will, is now in the hands of his executrix. It is'not perceived that any sound reason exists why the proceeding should not be continued. If sufficient facts are established upon the reference to call for the opening of the order, it certainly ought not to stand with the force of a judgment, to protect the estate of Hoguet from just liability to the cestui que trust. It is very true the provisions of the Code and of the statute touching the revivor of suits are, in strictness, applicable to actions eo nomine. But that does not deprive the court, we think, of its equitable powers on this proceeding to bring in the representative who has become interested in the question. It will be in the power of the court, and probably a proper exercise of its discretion, if it shall finally determine in this proceeding that the order of discharge ought to be opened, to direct an action to be brought by the cestui que trust against the representative for an accounting. That action will be, in that case, free from the embarrassment of the order, and may proceed upon other grounds than the fraud for which the order could be attacked by an action in the present posture of the case. I am of opinion that the order of the court below was correct, and that the representative of Hoguet was properly directed to be brought in. The order should be affirmed, with ten dollars costs and disbursements.