In the first count of his complaint the plaintiff as executor of and residuary legatee under the last will and testament of William Wilson Barrett, deceased, seeks a judgment requiring the Rutherford Trust Company and Carleton S. Cooke, as trustees under the last will and testament of William Mitchell Barrett, deceased, to account for their administration of the trust set up under the will of William Mitchell Barrett.
In the second count the plaintiff seeks a judgment restraining the defendant City Bank Farmers Trust Company, surviving
executor of and trustee under the will of John W. Barrett, deceased, from prosecuting in the Surrogate's Court of the County of New York and State of New York an action to compel the Rutherford Trust Company and Carleton S. Cooke as trustees under the will of William Mitchell Barrett, to render an account of their administration of that portion of the trust estate derived from the estate of John W. Barrett, deceased.
John W. Barrett died a resident of the State of New York on February 1, 1934, leaving a last will and testament which was probated in the County of New York on February 16, 1934. In that will Mabel Allan Barrett and City Bank Farmers Trust Company were named as executors and trustees. The will of John W. Barrett, in the sixth clause thereof, provided in part as follows:
"(b) Two-Fifths of my residuary estate shall be held in trust during the life of my brother, William Mitchell Barrett, invested and reinvested, the income therefrom paid or applied in at least quarterly instalments to the use of my said brother during his life. Upon his death the trust of said share of my residuary estate shall terminate and the principal thereof shall be transferred and paid over to such persons and in such proportions as said William Mitchell Barrett shall by his Last Will and Testament designate and appoint. In the absence of any specific appointment of this remainder by my brother's Will, a residuary clause in his Will shall be a sufficient designation and appointment hereunder."
William Mitchell Barrett died on January 25, 1938, a resident of Bergen County, leaving a last will and testament which was duly probated in that county on February 9, 1938. In the said will the Rutherford Trust Company and Carleton S. Cooke were appointed executors and trustees. The will of William Mitchell Barrett provided, among other things, as follows:
"Fourth: After paying the said legacy, my debts and the taxes aforesaid and the expenses of administration of my estate, my Executors hereinafter named shall turn over to themselves and hold as Trustees all the rest, residue and remainder of my property and estate of whatsoever name and nature and wheresoever situate, including therein the property formerly of my deceased brother, John W. Barrett, in which I have a life estate under the trust established
in and by his Last Will and Testament dated the 20th day of April, 1929, and admitted to probate in the Surrogate's Court of the County of New York, on or about the 16th day of February, 1934, and as to the principal whereof the said Will gives me power to designate and appoint the transfer and payment thereof by my Last Will and Testament, which power I do now hereby exercise and hereby designate and appoint my Executors and Trustees to take, receive and collect the principal of said trust fund, as also any other property over which I may be given power of appointment by the will or deed of any other person; but Nevertheless, In Trust, and upon the uses and trusts, and for the purposes following, to wit: To divide and hold and apply the same respectively as is hereinafter set forth, namely:
Fifth: Three-fifths (3/5) of my said residuary estate shall be held in trust during the life of my wife, Mary E. Barrett, and invested and reinvested as herein provided, and the net income thereof shall be paid to her or to her use so long as she shall live. Upon her death (my son William Wilson Barrett surviving her) the said income shall be paid to my said son, William Wilson Barrett, or applied to his use so long as he shall live. Upon his death (or upon the death of my said wife if he shall predecease her) the trust shall terminate and the principal thereof shall go and be distributed to and among such persons or legatees and in such manner as my said son William Wilson Barrett shall, by his Last Will and Testament, designate and appoint.
Sixth: The other two-fifths (2/5) of my said residuary estate shall be held in trust during the life of my said son William Wilson Barrett and invested and reinvested as herein provided, and the net income thereof shall be paid to him or to his use so long as he shall live. Upon his death (my said wife Mary E. Barrett surviving him) the said income shall go and be paid to her, my said wife, Mary E. Barrett, or to her use, so long as she shall live; and upon her death, if she shall have survived my said son, or upon his death, if she shall have predeceased him, the trust shall terminate and the principal thereof shall go and be ...