(78 Hun, 298.)

#### CLINE v. SHERMAN et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Res Judicata—Decree op Surrogate’s Court.

Testator bequeathed $10,000 to each of four grandchildren, and directed his executors to invest such sums and accumulate the income until each grandchild became of age. On application for final settlement of their accounts, the executors reported to the surrogate that they had invested the legacies in government bonds, and that each executor held the share of two of the grandchildren. No objection was made to the account, and a final decree was entered discharging the executors. No appeal was taken from the decree, and no motion was made to vacate it. *Held,*that such decree was an adjudication that there were separate trusts, and each trustee was liable only for the bonds standing in his own name.

Appeal from special term, Dutchess county.

Action by Cornelia Fay Cline against David H. Sherman and Samuel W. Sherman, as executors of Walter W. Sherman, deceased. The complaint was dismissed as to defendant David H. Sherman, and plaintiff appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Samuel H. Brown (Milton A. Fowler, of counsel), for appellant.

Larned, Warren & Knapp (Ira D. Warren, of counsel), for respondent.

DYKMAN, J.

Walter W. Sherman died in March, 1880, leaving a last will and testament, in which he appointed the defendants in this action, his two sons,' his executors. The will was proved and admitted to probate, and the two executors duly qualified and entered upon the performance of their duties. Walter Sherman and Mary C. Sherman are the children of the defendant David H. Sherman, and Cornelia Fay Cline, the plaintiff, and David H. Sherman, are the children of the defendant Samuel W. Sherman, and are the grandchildren named in the fourth clause of the will, which reads as follows:

> *“I give*and bequeath to each of my four grandchildren, Walter A. Sherman, Jr., Mary C. Sherman, Cornelia Eay Sherman, and David Sherman, Jr., the sum of ten thousand dollars apiece, to be set apart for each of my executors one year after my decease, and to be invested and reinvested safely by my executors, with the accumulated interest, until each of my said grandchildren severally shall become of age; and I order my said executors to pay over *910said sum, with its accumulations, to each of my said grandchildren, respectively, as he or she reaches the age of 21 years.”

On the 1st day of April, 1881, the defendants, Samuel W. Sherman and David H. Sherman, presented their petition to the surrogate of Dutchess county, properly verified, praying for a final judicial settlement of their accounts as executors, and that all persons interested in the estate be cited to appear on the 6th day of May, 1881, and attend the final settlement of such accounts. On the last-named day, the defendants, as such executors, filed their accounts in the surrogate’s court. Such accounts, so filed, contain the following statement, viz.:

> “From the amount thereof, we have set apart the sum of forty thousand dollars, and, adding from our own fund the amount of premiums, we have pm1 chased and now hold $10,000 in United States four per cent, bonds, registered in the name of David H. Sherman, trustee of Walter A. Sherman; $10,000 in like bonds registered in the name of David H. Sherman, trustee for Mary C. Sherman; $10,000 in like bonds registered in the name of Samuel W. Sherman, trustee for Cornelia Fay Sherman; and $10,000 in like bonds registered in the name of Samuel W. Sherman, trustee for David W. Sherman, Jr.,—all of said bonds being here set down at then1 face value.”

On the return day of such citation, the said surrogate duly appointed Thomas J. Swift special guardian for the plaintiff in this" action, and the other infants interested in the estate. Thus the defendants informed the surrogate of their proceedings, and the disposition they had made of the trust fund. They had invested it in good securities, and each father had become a separate trustee for his own children. No objection was made to the account, and the surrogate entered a final decree discharging the executors from all liability, and confirming the separate trusts as they were stated. The defendant David H. Sherman never had in his possession or under his control the $10,000 of United States registered bonds which were set apart for the plaintiff, and never was her trustee. Those bonds were registered in the name of Samuel W. Sherman, alone, as trustee, and he had entire possession and control of the same. This suit was brought against both of the executors to compel them to account and pay over to the plaintiff the fund belonging to her, after crediting themselves with $2,000 paid to her on account thereof. David interposed a defense, but Samuel did not answer. The case was tried before a judge without a jury, and he decided that, by the proceedings before the surrogate upon the final accounting, and the final decree rendered therein, Samuel W. Sherman was made and became the sole trustee of the ■plaintiff, and dismissed the complaint as to' the defendant David H. Sherman. The plaintiff has appealed from the judgment entered upon such decision.

This action is based upon the theory of the indivisibility of the trust to invest and reinvest $10,000 for each of the grandchildren of the testator, and, without controverting that position, the respondent relies upon the decree of the surrogate made upon the accounting had before him as final and conclusive, and a protection to him against the claim of the plaintiff. Again, the plaintiff ■denies the finality and conclusiveness of the surrogate’s decree *911upon such accounting, and those contentions raise the legal question presented for our solution. These defendants sustained the relation of testamentary trustees, under the will of their testator, towards the grandchildren, because they undertook to act in the execution of a trust created by will, which is separate from their functions as executors. Code Civ. Proc. § 2514, subd. 6. The sums bequeathed to the minors were to be invested and reinvested by the executors, with the accumulated interest, until each of the grandchildren became of age, and then the executors were to- pay over the legacies, with the accumulations, to each of the grandchildren. That provision created a trust to be executed by the executors, and so constituted them testamentary trustees. The claim of the appellant that section 2802, as it stood in 1881, contained no provision respecting the effect of a decree upon intermediate .accounting, is quite inconclusive. Jurisdiction to settle the accounts of testamentary trustees and guardians was first conferred upon surrogates by chapter 782 of the Laws of 1867. By section 1 of that act, surrogates were given power to compel testamentary trustees and guardians to render accounts of their proceedings in the same manner as executors, administrators, and guardians appointed by the surrogate were then required to account. That act was amended by chapter 482 of the Laws of 1871, in a respect which is immaterial here. The provisions of title 6 of chapter 18 of the Code of Civil Procedure which commence with section 2802 are a substantial re-enactment of the law of 1867, as amended by the act of 1871, so that those statutes have been in operation all along. In re Hawley, 104 N. Y. 264, 10 N. E. 352. As there was a guardian appointed for the infants in the proceedings for the accounts, and béfore the surrogate, the decree there made has the same effect as a similar adjudication between adults. In re Tilden, 98 N. Y. 434; In re Hawley, 104 N. Y. 250, 10 N. E. 352. Further, as the surrogate was possessed of jurisdiction, there was no relief from the decree, even though it was erroneous or irregular, except upon the ground of fraud, clerical mistake, newly-discovered evidence, or through like causes, and to obtain such relief it was necessary to apply for the same within one year after the infants became of age, respectively. Code Civ. Proc. § 1291; In re Hawley, 100 N. Y. 211, 3 *N.*E. 68.

As there was no appeal from the decree, and no application for relief from the same, and the time therefor has long since expired, it has become finally binding and conclusive upon the plaintiff and all others who were parties thereto. For the same reason, the decree of the surrogate upon such accounting furnished absolute protection to the executors. They stated in their account that they purchased and held $10,000 in United States 4 per cent, bonds, registered in the name of Samuel W. Sherman, trustee. for Cornelia Fay Cline, the plaintiff, and that was true. Ho objection was made to that mode of separating the trust, and the decree finally settled and allowed the accounts as thus stated. Bowditch v. Ayrault, 138 N. Y. 222, 34 N. E. 514; Denton v. Sanford, 103 N. Y. 607, 9 N. E. 490. In this last case, trustees under the will had *912invested trust funds in a mortgage on property in New Jersey, and. the court decided that the decree of final accounting, which showed how the fund was invested, furnished absolute protection to the-trustees, as no objection was made to their action. In that case, as in this, the action of the trustee might or might not receive the-approval of the surrogate, but, as it did, such approval was their protection. That rule is consonant with justice. Here were two-brothers, executors of their father’s will. Forty thousand dollars was given to them for their four children, who were minors, in equal sums, to be invested and the interest accumulated during their minority and paid over to them upon their attaining their majority, respectively. When the estate was settled, and the $40,-000 had been invested in government bonds, each father was willing to become the trustee for his two children, and so they agreed to divide the bonds, each taking half, and causing them to be registered in his own name as trustee. Then they applied to the surrogate for a judicial settlement of their accounts, and stated in their petition how the trust fund was invested, and that half of it was held by each of the trustees for his children. A guardian was appointed, and no objection was made, and the surrogate approved the action of the trustees, and made a decree in which he recited the establishing of the four trusts of $10,000 each, and stated that the executors were released and discharged from all liability as well to each other as to others, and that all their transactions were approved, ratified, and confirmed. The surrogate and all parties interested approved a division of the trust, and, had they not done so, the respondent might have protected himself. Under all these circumstances, it would be oppressive and unjust to compel the respondent to restore to the plaintiff the money which has been lost without his fault. The judgment should be affirmed, with costs.