Crocker v. Oakes

117 F. 363, 1902 U.S. App. LEXIS 5108

Opinion

LACOMBE, Circuit Judge.

The record submitted upon the hearing is in such shape as to make it well-nigh impossible to form any intelligent opinion as to the various items in dispute, and to demonstrate quite clearly that the proper place for a full accounting is the surrogate’s court. The defendant is the trustee of the fund, in which plaintiff has a life interest, and upon canceling the assignments under which he sought to obtain the plaintiff’s life interest the corpus of the fund will remain in his hands. From the date of the ineffectual transfer he will be liable to plaintiff for the income, and the amount ($2,500) he paid plaintiff to obtain the transfer will be available as a credit in his accounting with her. Such a disposition of the case will sufficiently protect him. The master’s report is not confirmed, and a final decree may be entered in the language of the second paragraph of the interlocutory decree, setting aside the instruments of June 22, 1898, and refusing to take jurisdiction of any accounting between the parties under the will or the trust thereby created, and providing that the $2,500 paid by defendant to plaintiff upon the execution of such instruments shall stand as a credit to defendant upon the adjustment of such accounts between them in a proper tribunal.