App. Div.] First Department, April, 1910. brings this action to remove him as a trustee, setting out the above facts and many others in her complaint, to which defendant demurred upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled and he appeals. First. It is urged the judgment appealed from should be reversed because the complaint fails to show that complete relief cannot be obtained in the Surrogate's Court. There is no doubt that a Surrogate's Court has the power, under section 2817 of the Code of Civil Procedure, to remove a testamentary trustee when there exists any of the conditions set forth in such section. (Matter of Hirsch, No. 1, 116 App. Div. 367; affd., 188 N. Y. 584.) A Surrogate's Court has only such power as is given to it by statute, and this power was conferred upon it by chapter 482 of the Laws of 1871. (Savage v. Gould, 60 How. Pr. 234.) The rule seems to be quite well settled that where complete relief can be obtained in the Surrogate's Court, the Supreme Court will refuse to take cognizance of an action; that, before it will do so, facts must be set out in the complaint sufficient to show that adequate relief cannot be obtained except in the Supreme Court. (Borrowe v. Corbin, 31 App. Div. 172; affd., 165 N. Y. 634; Citizens' Central Nut. Bank v. Toplitz, 113 App. Div. 73; affd., 188 N. Y. 634; Matter of Smith, 120 App. Div. 199; Post v. Ingraham, 122 id. 738.) But it is at least doubtful if the question whether it will take jurisdiction of an action where complete relief can be obtained in the Surrogate's Court can be raised by demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action. The question seems to have been decided otherwise by this court. (Mildeberger v. Franklin, 130 App. Div. 860.) However, that question is not here necessarily involved. A Surrogate's Court can remove a testamentary trustee only for some one or all of the reasons stated in the section of the Code referred to, which are disqualification, incompetency which renders him unfit for the due execution of the trust, or some affirmative act to the detriment of the trust estate or its manage ment. The Supreme Court has power to remove a testamentary trustee not only for the reasons which would justify such action in the Surrogate's Court, but also " for any other cause." (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 112.) So if it be assumed that the Surrogate's Court might remove a trustee First Department, April, 1910. [Vol. 137. for certain reasons, it does not follow that a complaint would be defective in the Supreme Court because it might conclude to remove him for other reasons, concerning which the surrogate would have no power. Second. It is urged that the judgment should be reversed because the facts set out in the complaint would not justify the court, if the same were established at the trial, in removing the defendant as trustee. In the main I think this contention is correct. Most of the reasons assigned for the ground of removal relate to the manage⚫ment of the trust estate, which necessarily involves judgment and discretion, and as to these it is fairly to be assumed that the appellant, by reason of his business experience, is better able to determine them than the plaintiff. There is, however, one ground specified which, if true, not only presents a serious question, but I think, under all the facts and circumstances, entitles the plaintiff to have the appellant removed. It is a fundamental rule relating to the acts of a testamentary trustee that he must not only act for the benefit of the trust estate, but also in such a way as not to gain any advantage, directly or indirectly, except such as the law specifically gives him, for himself. He owes an undivided duty to his beneficiary, and he must not, under any circumstances, place himself in a position whereby his personal interest will come in conflict with the interest of his cestui que trust. (Pom. Eq. Juris. §§ 1075-1077; Chaplin on Express Trusts & Powers, § 193; Matter of Hirsch, No. 1, supra.) The purpose sought to be secured by this rule of law is to require a trustee to assume a position where his every act is above suspicion and the trust estate, and it alone, can receive not only his best services, but his unbiased and uninfluenced judgment. When he has acted otherwise, or when he has placed himself in such a position that his personal interest has or may come in conflict with his interest as trustee, then, so far as I have been able to discover, the court never hesitates to remove him. Under such circumstances the court does not stop to inquire whether the transactions complained of were fair or unfair. It stops the inquiry when the relation is disclosed. (Munson v. S., G. & C. R. R. Co., 103 N. Y. 58.) The appellant personally owns one-half the capital stock of the corporation, from which he is receiving a salary of $25,000 a year as its president. He and the plaintiff as App. Div.] First Department, April, 1910. trustees of his brother's estate own the other half. The disagreement which has arisen between the two trustees, in effect, disfranchises their stock, the plaintiff insisting on voting it one way and he the other, the effect of which is to give him the actual control of the corporation by virtue of the stock which he owns personally. By accepting a salary as president of the corporation he has placed himself in a position whereby his personal interest may or has come directly in conflict with and to a certain extent antagonistic to his interest as trustee. It is not necessary to determine that he has acted in bad faith or received from the corporation a sum in excess of what he would have been legally entitled to if he had been selected as president of the corporation had he not been a trustee of an estate holding one-half of the capital stock. One-half of the salary paid to him diminishes to that extent what would otherwise be paid to the beneficiaries of the trust which he represents, and to this extent at least he is not in a position to so act that his personal interest does not come in conflict with his interest as trustee. He ought not to have placed himself in such position and having done so ought not to be permitted to act as trustee. I am of the opinion, therefore, for the reasons stated, that the complaint stated a cause of action and the judgment appealed from should be affirmed, with costs, with leave to the appellant to withdraw his demurrer and answer on payment of the costs in this court and the court below. INGRAHAM, CLARKE and SCOTT, JJ., concurred. Judgment affirmed, with costs, with leave to appellant to withdraw demurrer and answer on payment of costs. First Department, April, 1910. [Vol. 137. PETER TWAMLEY, Respondent, v. THOMAS A. MCKENNELL, Individually and as Executor, etc., of JANE THORBURN, Deceased, Appellant, Impleaded with ELIZABETH ANN PULLMAN and Others, Defendants. First Department, April 8, 1910. breach of agree Pleading-reply - new matter contained in answer ment between trustee and beneficiary. A nephew of a testatrix who left her surviving a son since deceased, suing under section 2653a of the Code of Civil Procedure to determine the validity of the will, which left the residuary estate in trust, a certain portion of the income to be paid to the son for life and upon his death the remainder to the trustee, will be required to reply to new matter set up in the answer of the trustee who alleges that after the death of the testatrix in consideration of the son's consent to the probate of the will and his promise to refrain from the use of intoxicants and drugs, the trustee agreed to pay him a larger sum from the trust estate and to transfer the corpus to him at the expiration of five years if he proved himself capable of properly using the same, which promise the son failed to keep although he accepted the benefits of the agreement up to the time of his death. The object of section 516 of the Code of Civil Procedure authorizing the court in its discretion to compel a plaintiff to reply to new matter contained in the answer is to narrow the issues and prevent surprise at trial. APPEAL by the defendant, Thomas A. McKennell, individually and as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1909, denying the said defendant's motion to require the plaintiff to reply to new matter set up in his answer. George H. Taylor, Jr., for the appellant. Nelson L. Keach, for the respondent. MCLAUGHLIN, J.: Some time prior to the 26th of October, 1908, one Jane Thorburn died, leaving a last will and testament and a codicil thereto, which were thereafter admitted to probate and letters testamentary issued to the executor therein named, the appellant. By the will the tes App. Div.] First Department, April, 1910. tatrix gave all of her property, both real and personal, to the appellant, a grandnephew, in trust to pay to her son, David Abbott Thorbarn, from the income derived therefrom, the sum of ten dollars per week during the tern of his natural life, and upon his death the remainder to the appellant. The son was the testatrix's only heir at law and next of kin. He died intestate without issue on the 15th of August, 1909. The plaintiff is a nephew of the testatrix, and brings this action under section 2653a of the Code of Civil Procedure to determine the validity of the will and codicil. In the complaint he alleges that he is "one of the heirs at law and next of kin ” of the testatrix. The appellant sets up as a defense that after the death of the testatrix an agreement was entered into between the son and the appellant, whereby the former consented to the probate of the will and codicil of his mother, and the latter agreed to assign, transfer and set over all of the property of the testatrix, together with all the accumulations derived therefrom, to the son at the expiration of five years after the admission of the will to probate, provided the son in the meantime had refrained from the use of intoxicating liquors and drugs, and proved himself capable of properly using and enjoying the estate. The agreement also provided that the appellant in the meantime would pay to the son, out of the income derived from the trust estate, the sum of fifteen dollars per week instead of ten, the amount named in the will. The answer further alleges that the son failed to observe the conditions of the agreement, although he accepted the benefits thereunder and ratified the same up to the time of his death. After issue had been joined, the appellant moved that the plaintiff be compelled to reply to the affirmative defense referred to. The motion was denied and he appeals. I am of the opinion the motion should have been granted. The only possible interest which the plaintiff has in the estate of the testatrix is such as he may have derived through the son. When the testatrix died the plaintiff was not one of the heirs at law or next of kin. He would have had no standing to oppose the probate of her will, since the son was her only heir at law and next of kin, and during his life plaintiff could not have maintained an action to determine the validity of the will, because he would not have been a "person interested as devisee, legatee or otherwise * * *"" in |