(178 Ν.Υ.Σ.)

been fully heard, and that the issues and evidence are exactly the same as though the parties had been brought in by means of an action or independent proceeding, the court, nevertheless, has no jurisdiction to remove the respondent by motion. While the court thinks there is precedent for the removal of the respondent by means of this motion, even assuming that there is no direct precedent, the fact that the court has heretofore failed to exercise a power is neither an argument nor presumption against the existence of such a power. A court of equity will not refuse to exercise a power simply because there may be no judicial precedent for its exercise.

In People v. Norton, 9 N. Y. 176, the court, speaking through Ruggles, C. J., said:

"The Court of Chancery had general jurisdiction of all cases of trust, and had the power by its general authority, independent of any statute, to displace a trustee on good cause shown. * It is said that this must in all cases, according to the course and practice of that court, be done by bill and not upon petition. But a departure from the usual practice of the court in doing an act which the court has authority to do, does not render the act void."

In Youngs v. Carter, 10 Hun, 194, Mr. Justice Daniels, in discussing the equitable jurisdiction of the Supreme Court, said:

"*

*

It now extends to all cases of law and equity, by virtue of the provision of the Constitution. The authority given, in terms, is 'general jurisdiction in law and equity,' and that, of necessity, includes all cases which may be properly comprehended by established and existing equitable principles. The test of jurisdiction cannot be restricted to the existence of some definite precedent for the action which may be brought. That would destroy the flexibility required to maintain the utility of the court, in the demands necessarily made for the exercise of its authority in new cases always arising out of the enterprises and progress of society. The novelty of the case can form no well-founded objection to the jurisdiction over it, if it falls within the limits of any defined equitable principle. That must constitute the test of the court's authority, and not the existence or absence of precedent for the case over which it may be invoked."

Mr. Justice Follett, in Davis v. Zimmerman, 91 Hun, 489, 36 N. Y. Supp. 303, restated the same principle, and said:

*

*

"The Supreme Court of this state has original and general jurisdiction of all cases in law and equity * with unlimited power to protect the rights of persons and property by adopting and enforcing all of the remedies afforded by an enlightened jurisprudence which are not inconsistent with the Constitution of the state, and it is its privilege and duty to mold and expand its processes, so as to afford adequate protection to the rights of all citizens."

[8] It is not only, therefore, the opinion of the court that it has ample power to remove the respondent trustee by means of this motion, but it is also the opinion of the court that inasmuch as the court has acquired plenary jurisdiction of the parties and the subjectmatter through the action for an accounting, in which action power of removal is incident and ancillary, that the court would and should actually restrain the prosecution of any separate proceeding instituted for that purpose. Such proceeding would come clearly within the sound and sensible rule that if full relief can be had in one suit, no other shall be allowed. Groshon v. Lyon, 16 Barb. 461; Foote v. Bruggerhof, 84 Hun, 473, 32 N. Y. Supp. 397; Metropolitan Trust Co. v. Stallo, 166 App. Div. 649, 152 N. Y. Supp. 173.

Reducing the objections and demands of the respondent trustee to a minimum, the real substance of them is that, notwithstanding all necessary parties are in the court and have been heard, they should nevertheless be driven out, simply because they entered through the wrong door.

In conclusion, the court desires to say that the affirmative acts alleged against George J. Gould do not involve the cotrustee, Helen G. Shepard. She evidently knew little of the very complicated transactions carried on by George J. Gould, and trusted him absolutely, as an honest woman with an unsuspecting mind would naturally trust a brother in whom their father had imposed such implicit confidence.

There have been other questions raised and discussed by the parties at great length. While these questions have been considered, they are, in the opinion of the court, incidental and subsidiary to the main question. To discuss them would serve no practical purpose.

The motion to remove George J. Gould as one of the trustees of the estate of Jay Gould is granted, and an order to that effect may be

entered.

Motion granted.

(189 App. Div. 90)

In re FRIEDLANDER.

(Supreme Court, Appellate Division, Second Department. October 3, 1919.)

(178 N.Y.S.)

Appeal from Surrogate's Court, Kings County.

In the matter of the judicial settlement of Lillian B. Friedlander, now Lillian B. Leavitt, as executrix, etc., of Joseph B. Friedlander, deceased. From a decree of the Surrogate's Court, settling her accounts, the executrix appeals. Decree modified in accordance with the opinion, and, as modified, affirmed.

See, also, 185 App. Div. 936, 172 N. Y. Supp. 892. Argued before JENKS, P. J., and PUTNAM, BLACKMAR, KELLY, and JAYCOX, JJ.

Max D. Steuer, of New York City (Henry Danziger, of New York City, on the brief), for appellant. Everett V. Abbot, Harry M. Marks, Hugo Wintner, and Henry L. Moses, all of New York City, for respondents.

BLACKMAR, J. The record of the case is long and the accounts intricate and complicated, chiefly for three reasons: First, the power granted the executrix to continue the business; second, the provision of the decree appealed from, which vacates a final decree made by the surrogate's predecessor in office, dated April 11, 1907, settling the accounts of the executrix; and, third, the basing of the accounts on the vacated decree. We shall confine ourselves to stating the conclusion at which we have arrived on the points presented to our consideration by the appellant, with a brief statement of the reason therefor. The accounts as filed admitted a balance of assets for distribution of $3,513.99. The decree charged the appellant with a balance of $107,219.56. The appellant claims that the decree was erroneous in the following respects:

A. The payment to J. A. Solomon should have been allowed, $1,827.93.

B. The executrix should not have been charged with the uncollected debts due the business, $10,715.44.

C. She should have been credited with loss in the business after October 24, 1908, $4,400; less profits, $1,726.47-$2,673.53.

D. She should not have been charged with the sum of $2,598.80 allowed N. Bernstein, and with $5,342.36 allowed to L. Bernstein on the sale of the business-$7,941.16.

E. She should have been allowed for the maintenance of the infants, $45,993.71.

F. The interest item charged against her, amounting to $33,032.16, should be modified as required by any allowance which may be made. We will consider the claims separately:

A. The respondents admit that the payment of $1,827.93 should be allowed.

[1] B. The executrix, having been authorized by the will, had, at the time the accounts were filed, uncollected debts amounting to $10,715.44. The surrogate held that the executrix was acting within the scope of the power conferred on her by the will in continuing the business up to a certain time. He then charged her with the uncollected debts of the business, without any inquiry whether they were collectible, or whether any of them were lost through her fault or negligence. In our opinion, the same rule does not apply to the debts incurred by an executor in running a business under the authority of the will as to debts due the testator. Merchants do not go to the expense of reducing all claims to judgment. As the executrix was running a commercial business, she was required to exercise such a degree of care in realizing on the accounts due as is exercised by the ordinarily prudent business man. The question is whether the claims were lost through the negligence of the executrix. As she has all the information, she should furnish the evidence. To that extent she has the burden of proof; but she has been held responsible for these uncollected debts, practically as an insurer, without any inquiry whatever as to whether they or any of them were lost through her fault or negligence.

[2] Where an appeal from a surrogate's decree is taken upon the facts, this court is not solely a court of review, but has the same power to decide questions of fact that the surrogate had, and it may in its discretion receive further testimony or documentary evidence and appoint a referee. Section 2763, Code Civ. Proc. We therefore, by order dated October 4, 1918, referred the matter back to the referee, to ascertain what, if anything, the executrix has collected on the uncollected accounts, to sell the remainder of them at public auction, and upon the evidence taken, and such new evidence as may be offered, to ascertain whether any portion of said claims, and, if so, how much, has been lost through the misconduct or neglect of the executrix. The referee made his report, dated January 27, 1919, to the effect that the executrix had collected on these accounts a net sum of $3,250.98, that the parties had agreed that the remainder were worthless, that a sale of them would be a useless and unnecessary expense, and that "the executrix is not to be charged with misconduct or neglect in failing to collect any portion of said uncollected claims." We confirm the report of the referee, and, as a result, allow to the executrix the sum of $7,464.46, with a proper readjustment of interest.

[3] C. The surrogate has charged the executrix with loss in the business, incurred since October 24, 1908, amounting to $2,673.53. The decision is based on a finding by the referee that in continuing to carry on the business beyond a certain date the executrix "failed to exercise that amount of care, prudence, and intelligence that persons of ordinary care, prudence, and intelligence would exercise in the management of their own affairs." A consideration of the evidence shows a situation where there was a serious question whether the business should be kept running pending a sale. The executrix had tried to sell the business. She received an offer that was approved by the surrogate; but the sale fell through on account of delays, and the order recites that the delays were caused by the contestant. The executrix continued the business in a limited way, hoping for a sale. She had to judge the situation as she saw it. The referee judged after the fact. She was acting within the scope of her power as conferred by the will. She was authorized to continue the business "as long as they deem it for the best interest of my estate." She was the only executor, and the discretion as to how long the business should be continued was given to her. So long as she acted in good faith, she

(178 N.Y.S.)

incurred no liability. It is a question of good faith, and not of wisdom, or the exercise of such care as another would have used. To her care, prudence, and intelligence the decision was confided, and she is accountable only for good faith in the exercise of the discretion. Walbridge v. Brooklyn Trust Co., 143 App. Div. 502, 128 N. Y. Supp. 686; Perry on Trusts (5th Ed.) vol. 2, § 511; Haight v. Brisbin, 96 N. Y. 132; Williams on Executors, vol. 3, p. 608. She should have been credited with the item of $2,673.53 and $310.20 interest to November 4, 1910, or $2,983.73.

D. We think the surrogate was right in refusing to credit the executrix with the allowance made by her to her two brothers, N. and L. Bernstein, in the sale of her business to them.

[4] E. The executrix claimed an allowance of $45,993.71 for the support and education of the infants. This was disallowed, as not sufficiently proved. Under the express trust created in the will the executrix had the right, and it was her duty, to devote the income to the support, education, and maintenance of the children during their minority. It appears that she has supported, educated, and maintained them, but has been allowed nothing therefor. This is unjust. She claims that this large sum was income paid over to herself as guardian, for which she is entitled to credit, being accountable in her capacity as guardian only. But this claim was not supported by the evidence, and it was rightfully rejected. Her right to use the estate for the infants is confined to the income, and it becomes necessary, therefore, to determine what the income is. The respondents in their brief compute the net income up to the date of the last account at $23,025.46. There is an error in their calculation, due to deducting from the gross income schedules C and D, whereas a portion only of said schedules was allowed by the Surrogate. Correcting the statement accordingly, we have the sum of $33,547.53. Moreover, the respondents rightfully contend that the sums drawn from the business, as shown in the last statement of income, while the business was losing money, is not income. This amounts to $4,726.47. Deducting this, we have as net income $28,821.06. But the appellant accounted to Elizabeth for $4,041.80, so that the income available to the other infants is $24,789.26. The appellant, if she has expended this, or any portion thereof, for the infants, has not accounted for it as a trustee should account. She has relied on the fiction that the money was turned over to herself as general guardian, and seems to have filed accounts therefor. In the interest of justice these accounts should not be closed in a way to bar the appellant forever from the chance of obtaining an allowance for the proper use of the income. Earl, J., in Beardsley v. Hotchkiss, 96 N. Y. 201, 219, says:

"There is no doubt of the power of an equity court to make to a father a reasonable allowance for the past and future support of his minor children, out of their property, in his hands, or in the hands of their trustees."

In Matter of Kane, 2 Barb. Ch. 375, Chancellor Kent held that in a proper case an allowance might be made to a father for past support of minor children out of the estate.

We think that this is a case where the principle so enunciated may