In re the Accounting of McCormick

Varnum, S. The application herein was heard by Surrogate Arnold, and it has since been stipulated that the questions involved be decided by me. The prayer of the petition is that the respondent be directed to account “ as executor and trustee.” It appears that a decree judicially settling the accounts of respondent, as executor, was made by this court, in 1870. While a general allegation of fraud is now made, no evidence to substantiate such allegation is submitted. There is no valid reason given why this decree should not be permitted to stand. Matter of Tilden, 98 N. Y. 434. The sole question that remains is as to the liability of the respondent to account as testamentary trustee. It is contended that even if such an obligation exists, the present petition is fatally defective in that it does not comply with the requirements of sections 2804 and 2806 of the Code of Civil Procedure. Those sections contain the provisions applicable to proceedings by a beneficiary to compel a trustee to pay over money or deliver personal property. The petition herein asks for an amounting only, and, therefore, comes directly under sections 2807 and 2808, the requirements of which appear to have been followed. It is urged that the Statute of Limitations has run against the petitioner. A certain portion of the trust estate became payable to the petitioner upon the death of a life beneficiary in 1897, and, hence, as to this portion no question of limitation can be raised. The remainder of the trust funds became payable at the majority of the petitioner, in 1873. The statute does not run between the beneficiary and trustee of an express trust, such as was created by the will of the decedent, unless there [96] has been a distinct disavowal or repudiation of the relationship' by the trustee, clearly and unmistakably conveyed to the cestui que trust. 21 Am. & Eng. Ency. of Law, p. 100; Kane v. Bloodgood, 1 Johns. Ch. 90. Respondent avers that he did expressly repudiate the trust, and explains various payments made to the beneficiary during the last twenty years by characterizing them as gifts. From the evidence before me, however, I cannot find that these and other allegations of the respondent establish that the trustee assumed such an antagonistic attiture towards the beneficiary as to cause the statute now invoked to be set in operation. Respondent will be ordered to account as testamentary trustee. Decreed accordingly.