Runk v. Thomas

• Court: New York Court of Appeals Court of Appeals
• Citation: Runk v. Thomas , 200 N.Y. 447, 94 N. E. 363 (N.Y. 1911)
• Decision Date: 27 January 1911
• Parties: RUNK v. THOMAS, Surrogate.
• Writing for the Court: WERNER

200 N.Y. 447

94 N.E. 363

RUNK

v.THOMAS, Surrogate.

Court of Appeals of New York.

Jan. 27, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Application of Charles A. Runk, as substituted trustee under the last will and codicil of Annie Joy, deceased, for a peremptory writ of mandamus against Abner C. Thomas, a Surrogate of the County of New York. From a judgment of the Appellate Division (138 App. Div. 789,123 N. Y. Supp. 523) sustaining a judgment denying the application, plaintiff appeals. Reversed, and application granted.

Charles A. Runk, for appellant.

Andrew L. Dalton, for respondent.

WERNER, J.

The question to be decided upon this appeal is whether the Surrogate's Court has power to entertain a proceeding for the judicial settlement of the accounts of a trustee appointed by the Supreme Court as the successor of a deceased testamentary trustee named in a will. Before proceeding to discuss comprehensively the general question thus stated, it will be useful to recite briefly the facts upon which it arises in the case at bar.

One Annie Joy died leaving a last will and testament in which she nominated two executors. Upon the death of one of these executors, another was appointed to fill the vacancy. This last-mentioned appointee survived his coexecutor and continued in the performance of his duties, filing his executorial account in the Surrogate's Court of New York county on the 15th day of May, 1891, and receiving a decree on the 28th day of September, 1891, settling his accounts, except as to two bonds and mortgages in the aggregate sum of $10,000 which he was directed to transfer to himself as trustee to hold during the life, and for the benefit, of certain cestuis que trust, and after the expiration of the trust period to distribute the corpus of the trust fund in accordance with the directions of the will. This trustee died on the 24th day of August, 1904, and thereupon the appellant was appointed by the Supreme Court as substituted trustee, under an order which adjudged that he be ‘appointed the trustee of the property and effects comprising the trust estate under said last will and testament and codicil thereof of Annie Joy, deceased, in the place and stead of said Pearson Halstead, deceased, with all the powers, rights, duties, and authority given to him, said Pearson Halstead, in and by said last will and testament and codicil thereof of Annie Joy, deceased.’ The appellant duly qualified and acted as such substituted trustee until December 26, 1909, when the corpus of so much of the trust fund as was represented by one of these mortgages was released from the trust by the death of the cestui que trust. Thereupon the appellant presented to the Surrogate's Court of New York county a petition setting forth the facts, praying for the judicial settlement of his accounts, and for the issuance of citations to the parties in interest. The prayer of the petition was denied ‘upon the ground that the surrogate has no jurisdiction to entertain the proceeding.’ The appellant then applied to the Supreme Court at Special Term for a writ of peremptory mandamus directing the surrogate of New York county to entertain the proceeding for an accounting. That application was also denied, and from the order entered at Special Term, the appellant took an appeal to the Appellate Division, where there was an affirmance by a divided court.

The surrogate denied the appellant's petition for leave to account, not because he was personally convinced that he lacked jurisdiction, but for the reason that he felt constrained to do so by the decision of the Appellate Division in the First Department in Matter of Leavitt, 135 App. Div. 7,119 N. Y. Supp . 769. The same Appellate Division, upon the appeal in this proceeding, held that the surrogate was right in refusing to entertain the petition for an accounting, but disagreed with him as to the effect of the decision in Matter of Leavitt, because in that case the only question actually decided was that there was no necessity for the appointment of a substituted trustee, since there were surviving trustees who were competent to properly administer the trust. While the learned justice who wrote for the Appellate Division in the case at bar was entirely correct in his statement of what was decided in Matter of Leavitt, it is also true that there are expressions in the opinion in that case which clearly warranted the inference that, if the question should fairly arise in that court, it would be held that the Surrogate's Court has no power to appoint a successor to a deceased trustee when the latter was appointed by the Supreme Court, and that all proceedings for accountings by trustees appointed in the latter court must be had in the same tribunal. The dictum in Matter of Leavitt has ripened into a decision in the case at bar, for it has been thus far held that the appellant, a trustee appointed by the Supreme Court, may not have his accounts judicially settled by the Surrogate's Court.

It is to be observed in passing that the learned surrogate, who is nominally the respondent upon this appeal, is really an appellant, for he is before us with a very able brief contending for the existence of the power which he refused to exercise when he denied the appellant's petition for leave to account in the Surrogate's Court. These conflicting attitudes are fully justified, however, by the exigencies of the situation, and we refer to them simply for the purpose of emphasizing the fact that both of the parties to this appeal are asking us to reverse the order of the court below, and to hold that Surrogates' Courts have power to judicially settle the accounts of testamentary trustees appointed by the Supreme Court. Another feature of the case is so peculiar as to warrant passing mention before we discuss the main question. The proceeding originated in an application for a peremptory writ of mandamus directed to a judicial officer, requiring him to take cognizance of a proceeding in his court. This form of the writ may only be issued, in the first instance, where the applicant establishes a clear right to the mandamus as a matter of law (Code Civ. Proc. § 2070), and it will never be issued against a court or judicial officer, where there is a remedy by appeal from a decision which is attacked as being erroneous. In the case at bar the peremptory writ was properly invoked, for it was the appellant's only remedy. The denial of his ex parte application to the Surrogate's Court for leave to account gave him no right to appeal. If he is entitled, as matter of law, to account in that court, the only way in which he can enforce the right is by peremptory mandamus. Although the order of the Special Term, denying the application for the writ, is silent as to the grounds upon which it is based, the order of the Appellate Division has made it clear that the refusal to grant the writ was upon the law, and not in the exercise of discretion. The case is therefore properly before us on this appeal.

The question whether the Surrogates' Courts have jurisdiction to entertain proceedings for the judicial settlement of the accounts of testamentary trustees appointed by the Supreme Court is obviously one of considerable importance. It affects the rights of trustees and cestuis que trust no less than the powers and duties of the Supreme Court and the several Surrogates' Courts of the state. The history of the courts which, under various names, have exercised jurisdiction in the administration and distribution of decedents' estates is exceedingly interesting, but much too long and involved for extended recital in a judicial opinion. We shall sketch in bare outline a few of the noteworthy features of its development, for the purpose of showing that, although our probate courts have always been tribunals of special and limited jurisdiction, they have so steadily grown in power and responsibility, and their jurisdiction has been so constantly enlarged and expanded that they are now courts of record, and constitute a very important part of our judicial system.

When the colony of New Amsterdam was settled by the Dutch, all judicial power was vested in a council composed of the director general, the vice director, and schout fiscal. Before this tribunal all matters pertaining to the succession of estates were disposed of according to the Dutch Roman law. That court passed through various changes until the English conquest of the province, when the mayor's court was established, and for many years continued to entertain jurisdiction in matters relating to decedents' estates. It was, however, a jurisdiction more ministerial than judicial, for the judgment of the court in all important matters was transmitted to the Governor or Secretary for official ratification. In this way there developed a department known as the Prerogative Office, which finally became known as the Prerogative Court. The distinguishing features of this jurisdiction were that the granting of letters, the hearing of accounts, the reckoning of administration, and the granting of the final discharge belonged to the Governor, and not to any inferior judge. As the colony grew the Prerogative Court appointed local delegates, who represented the court for certain specified purposes, and later these delegates assumed the title of surrogates. These local officers occupied a position analogous to that of the local probate tribunals of England with relation to the ecclesiastical courts of the realm, but their powers were evidently much more limited, because all their judicial acts, such as taking proof of wills, had to be approved and ratified under the seal of the Prerogative Court. It requires but little imagination to perceive that a system, so cumbersome and unsystematic, would in time prove inadequate to the necessities of a province whose rapidly growing population was spreading over an ever enlarging territory and steadily...