Smith v. Keteltas (62 A.D. 174, 1901)

O’Bkiejst, J.:

The nature of the action and the questions involved are fully presented in the opinion of the learned judge at Special Term, which is reported in 32 Miscellaneous Reports, 111, and from which we take the liberty to quote:

“ This action is brought on the part of the plaintiff to recover of the defendant Edith M. K. Wetmore, the younger, as sole executrix under the will of Henry Keteltas, the last surviving trustee of the estate of John Gardner, deceased, an undivided one-seventh part of the sum of $230,040.36 received by said Henry Keteltas as trustee, on the 4th of May, 1894.

“John Gardner died in December, 1817, leaving a last will and testament in which certain trusts were created for the benefit of his children. The trust for his daughter Malvina, who afterwards married Eugene Keteltas, is the trust involved in this action and terminated upon her death, June 20, 1894. Prior to the termination of this trust, Henry Keteltas, son of Malvina Keteltas, had been substituted as trustee, and at the time of the transactions under consideration was sole trustee of the trust for his mother. Prior to 1892 the city of Hew York instituted proceedings to acquire for purposes of a public park, certain real estate which formed part of the trust estate; and on May 5, 1894, Henry Keteltas, as trustee, received an award for property taken amounting to the sum of $230,040.36 It is claimed that a large portion of the award was applied by the trustee to the construction of buildings upon vacant lots in the city of Hew York. These lots had formerly been improved; but the buildings were ancient and generally of frame construction, in some instances with brick sides or fronts. Many of them were ordered down by the building department as being unsafe and incapable of further repair, and all of them were substantially, if not entirely, in an untenantable condition. The trust term had been in existence nearly sixty years, and these buildings, some of them, were said to have been over one hundred years old and others fifty years old. * * * The plaintiff was examined as a witness on both trials upon the question as to his having received notice of the appropriation of a portion of the amount of'the award by Henry Keteltas, surviving trustee under the will of John Gardner, to the erection of said buildings. On that trial he admitted that, before this suit was brought, he knew that the money had beén expended on these buildings. * ^ * On the present trial the witness says that he never knew or heard that his uncle devoted a portion of this award to payment for erection of houses until trial before Judge Webnee, and then says that he first heard it from his father^ who is attorney in this case; cannot tell whether it was a year ago or two years ago ; that then his father told him only that defendants made such a claim in their answer ; and when asked the direct question by his- counsel whether he was mistaken in his testimony on the first trial to the effect that he did know this money had been expended upon these buildings, before he brought this suit, he answered, "I think I was.’ It appears from the evidence that the plaintiff has, ever since the death of Henry Keteltas, been in receipt of statements of the amount of rents, and has also received his proportionate share of the rents of the property held in trust by the latter.”

In passing upon the claim of the plaintiff that he did not know of the appropriation of a portion of the moneys received from the award to the erection of the buildings and that there is no evidence that any of the moneys were thus applied, the learned judge says :