#### Jane Remsen Thompson, Plaintiff, *v.*Charles Remsen and William Manice, as Executors of and Trustees, etc., of William Remsen, Deceased, et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

Trusts — Execution of a power to' allot residuary shares not enforcible by "the beneficiary of a trust Complaint.

An action to compel executors to execute a power, conferred on them by the will of a testator and to bé exercised -in good faith .for the , benefit of all interested, to divide his residuary estate into five shares and allot One to each of his‘five children, cannot be . maintained by a child who is 'the beneficiary of one share, as it is the diity o'f the child’s trustees to maintain and defend the fund against wrongful attacks and injury, and where she does not allege in her complaint that her trustees (not being the' same persons as the executors) have refused to take" appropriate action, ñor even that she has requested p them to itake such action, her complaint must be dismissed. '

Demueeer to complaint.

Lewis *&*Stoddard, for plaintiff.

John M. Perry arid Everett V. Abbot, for defendants. .

Scott, J.

The defendants Remsen arid Manice as executors of and-trustees under the last will and testament of William Remsen, deceased, demur to the complaint for insufficiency. •

The complaint alleges the. death of William Remsen, leaving him surviving five children, to-wit, Robert George Remsen"; the plaintiff, who is the" wife of Joseph T. Thompson, a defendant;. Charles Remsen, Elizabeth Remsen and Sarah Remsen Manice, ' the wife of the defendant William. That at the time of his death William Remsen stood seized of a large number of pieces of real estate in the city of New York. That he left a last will, which was duly admitted to probate, in and by which he appointed the defendants Charles Remsen," William Manice and Joseph T. Thompson executors and trustees; that said Reinsén and Manice duly qualified as executors thereof, but said Thompson never qualified as executor and has renounced his right to administer upon the *280.estate;'that with the consent and approval of this court Joseph T. ■Thompson; hás-renounced as trustee .of four of the-five trusts created by the will, and Eemsen andManice.have-resigned as trustees qfi.thé others of •said .five trusts, and as to said last-mentioned, trust, being the‘one created for.the benefit of plaintiff, 'the United States Trust Company has been appointed cotrustee with said Thompson., That by- his said- will, the said William Remseri, after certain specific bequests, of personal property, devised and bequeathed his residuary .estate, real and personal, to .his .executors, arid the survivors arid, survivor-of them, to arid for certain uses and.purposes,, 'and —7-— in the language of the will: ■" ;

'. . “First: ;In trust, to divide the same into- five' equal parts6or shares', arid to allot to my children Robert George Eemsen, Charles ■ Eemsen, 'Jane,; wife of Joseph T. .Thompson, Elizabeth Eemsen and- Sarah, wife of William Manice,-each- one of said five- parts or shares: . - ■

; -.“Second:- And as to-each of said parts or shares to continue, •seized of the same for and.during the life of the child.to whom such part, or share is allotted * * * - arid on\the death of each of the children above-named to convey, pay over and distribute the whole capital of .the part or share of the child-so dying, with all the' accumulations' thereof,' to and-among the lawful issiie, ’if. ■ariy, of. such deceased child, a-nd.if such child deave no. lawful issue ,them surviving, then to divide, distribute -and.pay .over the said capital, ánd accumulations,'iñ equal proportions to arid among the-children then living-.of any surviving brothers and sisters * * * *per capita*and. not *per stirpes*‘ ■. A

That in'Movember, 1896, the-defendants Charles Eemsen and William Manice, as executors‘as aforesaid,, commenced an'action against the plaintiff arid other persons interested in the estate, for an accounting, and to obtain permission-to resign as trustee .of the fund, allotted-to the'plaintiff, arid for'the "appointment of the United, States-' Trust Coinpafiy as coirustee of said fund with the -defendant .Joseph. T., Thompson.' That, an interlocutory decree ' was thereupon'entered .permitting, the said Eemsen and Manice to resign -as trristees of .the fifth part or. share of said estate- to be-allotted. to plaintiff, and appointing the United States Trust Company cotrústeé' with said "Thompson-, of .said part or share* and appointing a referee to take and state the accounts of said Eemsen ■ánd .Manice, as executors, as to the.personal property which had come into their harids. ' . . -

*281That thereafter the said Remsen. and Manice filed with' said referee three several accounts ■ respecting the said personal property, and the rents received by them from the real estate of which said William Remsen died seized, and the proceeds of several small parcels of real estate which they had sold. That the referee took and stated said accounts, and in September, 1898, a final decree was entered settling and confirming said accounts, and' dividing the personal estate, except certain securities set aside to meet a possible liability of the estate, and the proceeds of the sale of said parcels of real estate which had been sold, into five equal parts or shares, and allotting one of said parts or shares to each of the testator’s five children, according to the provisions of the will. That pending the proceedings before the referee, Robert George Remsen, one of the testator’s children, died intestate and unmarried, and the fact of his death was set forth in the final decree and the executors were directed to divide the one-fifth part or sharé of said personal estate and proceeds of.real estate sold, which was allotted to said Robert George Remsen, into eight equal parts, and to deliver and convey one of said parts to each of the children of the surviving brothers and sisters of said Robert George Remsen.'

' That the defendants Remsen and Manice, executors as aforesaid,' have never made any division and allotment of the real estate of which said William Remsen died seized, except the proceeds of the small portion sold by them, and still retain the same in their own hands and under their management and control. That it appears from th'e accounts of said executors that the net average annual income derived by the executors during the three years following the testator’s death, from the real estate of which he died seized, was less than 2-|- per cent, upon the value thereof; that, as the plaintiff believes, such is not an adequate income therefrom, and if her share thereof were set off and allotted to her, according .to the directions of said will her annual income would be ■materially increased; that under the terms of said will she has an absolute right to have the one-fifth part of said real estate set off and allotted to her in severalty and formally transferred to her trustees, the ■ defendants Joseph T. Thompson and the United States Trust Company. • That the plaintiff is advised and avers that immediately upon the death of Robert George Remsen, each of the children of his surviving brother and sisters became and was seized in fee of an undivided one-eighth of the undivided one-fifth part of said real estate, directed by said will to be allotted *282to said Eobert George Eemsen; that by reason of his death and the consequent vesting of the share which should have been allotted to him in.said children, who.are infants, it is doubtful whether said* executors can now. lawfully divide and allot said real estate; that it is claimed by certain of the parties interested in the estate, that under the provisions of said will there has been an equitable conversion of said real estate into personalty, which claim is disputed by others; that - there is a differe.nce of opinion among said parties as to whether the said defendants Thompson and the United States Trust Company are seized of that undivided one-fifth .part of said real estate of which the plaintiff is life tenant, and the provisions of testator’s will respecting the disposition of his real - estate are so indefinite and uncertain that a construction thereof by this court is necessary before the division and allotment of said real ustate can safely be made. That the defendant Charles Eemsen is a life tenant of one undivided fifth part of said real estate, .and his three children have an estate in remainder in such undivided one-fifth part, besides being each the owner in fee of one undivided one-eighth of one other undivided one-fifth; that the wife of the defendant William Maniee is_the life tenant of one undivided one-fifth part of said real estate, and his two children have, an estate in remainder therein, besides being seized in fee. each .of one undivided one-eighth of - another undivided onéffifth; that by reason of these facts the said Eemsen and Maniee are. disqualified by reason of interest to make. division and allotment of. said real estate» except under directionmf the court. The will of William Eemsen is attached to the complaint 'as a part thereof, the' names of all parties interested in the estate are given, and the. usual averment is made that the real estate described embraces all the real estate owned in common by the persons named, and in which no other persons are interested.

The complaint is certainly open to the charge of inartificiality. It is not- made clear by it Upon what precise theory the plaintiff • has brought her action, nor to what precise relief she deems herself to be entitled. A complaint cannot, however; be held insufficient on demurrer merely because it lacks definiteness and precision or because material facts are only argumentatively averred. Marie v. Garrison, 83 N. Y. 14. Nor can a demurrer "for insufficiency prevail because the plaintiff has asked for relief to which she is not entitled, if the complaint states facts entitling her to any relief at all. Wetmore v. Porter, 92 N. Y. 76. There are *283allegations in the complaint which Would be appropriate in an action for partition, but from the statement of the plaintiffs interest in the real estate, it is evident that she cannot maintain an action for that purpose. Under the.terms 'of the will she has no title whatever in the real estate, but is simply a *cestui que trust*as to an undivided one-fifth thereof. There are also in the. complaint certain allegations which would be appropriate in an action for the Construction of the will, but the plaintiff fails to show that any question has arisen so affecting her interests as to entitle her to maintain an action for this purpose. So far as she is concerned, any question affecting the construction of the will, in the particulars indicated by the complaint, is a purely abstract one, and the courts will not entertain an action to determine mere abstract questions. Horton v. Cantwell, 108 N. Y. 255. Whether or not the share of Robert George Remsen is vested in his nephews and nieces; whether or not there has been an equitable conversion of the real estate; whether or not the plaintiff’s trustees are vested with an undivided one-fifth of the real estate, the plaintiff’s interest in the estate will remain precisely the same. In either or airy case she will be entitled to receive for her life the income from one-fifth of the estate, and nothing more. The plaintiff, however, insists that she is entitled to maintain this action in order to compel the executors to divide and allot the real estate. The direction contained in the will that the executors should divide and allot the estate did not, strictly speaking, create a trust, but conferred upon the executors a power, to be exercised in good faith for the benefit of all those .interested in the estate. That the donee of such a power can be compelled in a proper case at' the suit of a proper party to execute the power cannot be doubted-and the only question here is whether the plaintiff has any interest in the estate which will entitle her to maintain a coercive 'action against the executors, and, if she has such- an interest, whether her complaint, all the allegations of fact being taken as true, make out a case for equitable ■relief. The scheme of the testator’s will was extremely simple. After dividing the estate into five equal parts and allotting one part to each of the testator’s children, the executors were to stand seized, as trustees, of each of said parts or shares, and to continue seized of the same during the lifetime of the child to whom it was allotted, receiving the income and paying it over to such child during his or her lifetime, and at his or her death, conveying, paying over and distributing such share to the children of said. *284deceased child, or his or her nephews and nieces, as the case might be. The will contains two powers of sale. The trustees of each of the several parts or shares are given a general power of sale in their discretion, and by the seventh clause of the will,'the execu-tors, “for the more convenient .discharge of the duties imposed upon them/’ are-'also given power to sell any. part of the real estate. It seems to'be quite clear- that the testator’s intention was that the estate should be divided in specie into five separate and distinct'parts of shares, but as to each one of them,' the executors were to hold the whole'title as trustees. Upon the resignation of Charles Eemsen and William Manic.e, as trustees of the one-fifth to be set apart for the -plaintiff; the defendant Joseph T. Thompson and the United States Trust Company became vested, if not with the. title to-the plaintiff’s Undivided share of the real estate,' at least to all the powers, duties and obligations incident to. ownership théfeof as trustees. Eemsen and Manic.e,. however, still remained executors, and as such charged with the duty of. dividing the estate and allotting the several shares, or parts thereof. Primarily, it is the duty of the-plaintiff’s trustees to protect her interests, and to compel the executors to actually divide and allot the real estate, if in their judgment such action is. necessary for .her full enjoyment of the provisions made for- her by her father’s- will. As was said, by the Court of Appeals in Western R. R. Co. v. Nolan,. 48 N. Y. 517 : ..“ The trustees are the parties in whom the fund is vested,' and whose duty it is. to maintain and defend it against Wrongful 'attack or injury tending to impair its safety or amount. -The' title-to the fund' being in them, neither the. *cestui que trust*nor -' the beneficiaries can maintain an action in relation to it against third parties, éxcept- iñ casé the. trustees refuse to perform their duty in that respect.” In Weetjen v. Vibbard, 5 Hun, 265, which was a case where *Cestuis que trust*brought an action in their own names-to enforce a trust, .the General Term of this court said:. “ Eor all the. purposes of the ease they (the *cestuis que*trust) are represented by the trustee acting in their behalf,'and when hé has not .been implicated in the wrong intended to be redressed, he is the person- who should take proceedings for its correction, and until his refusal to do so is shown in the case, an action by the bene- ; ficiaries must' be regarded as premature. They are permitted to maintain the action only when that may be the necessary way .of protecting their interests, .and no such necessity can exist when, the conduct of one of- the trustees is free from objection and' he *285has not declined to prosecute in their behalf.” Tested by the-rule enunciated in the foregoing eases, which are amply supported by other authorities, the plaintiff fails to establish her right to maintain this action to compel the executors to exercise the trust power of division and allotment imposed upon them by the will. It is not alleged that her trustees have refuséd to take appropriate action to compel the division or allotment, or even that she has requested them to do so, .nor are any facts alleged from which it can be fairly inferred that it would be useless to make such a request of them, as might have been assumed to he the case, if as to her share, the offices of executors and trustees had remained vested in the same persons. Upon a careful analysis and scrutiny of the complaint I am unable to see that it states any cause, of action and the demurrer must, therefore, be sustained, with costs, with leave to the plaintiff to amend on payment of costs.

Demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.