In re the Judicial Settlement of the Account of McInerney

Ketcham, S. In the settlement of the accounts of testamentary trustees it is claimed that, upon the sale of real estate, pursuant to a power of sale in the will, a trustee, who is one of the seven beneficiaries under the will, joined with three other beneficiaries in the purchase of a portion of the real es [115] tate, in part for Ms own interest and profit, and that he should account for any injury inflicted upon the estate by his acts in this regard. • The court has no jurisdiction of the question thus presented. It is of equitable cognizance and belongs exclusively to a court of general equity powers. Matter of Valentine, 1 Misc. Rep. 491; Matter of Randall, 152 N. Y. 508. It is probable that the surrogate has power to examine the trustee’s dealings with the subject of his trust in order to determine whether or not the trustee is entitled to commissions; but in the event of the exercise of jurisdiction in this respect the surrogate’s finding that the trustee was faithful or unfaithful would conclude the parties in any action in which the questions cognizable in equity would be presented. Thus the court, which has no power to make a comprehensive judgment as to the trustee’s conduct and any liability that might result therefrom, would impose its adjudication upon a court to which the complete jurisdiction attaches. To avoid a result so droll and inconvenient, the question of commissions will be reserved; and counsel may present their views as to whether this proceeding shall be adjourned pending the hearing of the question in the Supreme Court, or whether the decree shall be entered for partial relief, with leave to apply upon the foot thereof for further direction. Decreed accordingly.