16 Abb. Pr. 457 | N.Y. Sur. Ct. | 1874
The only questions submitted for consideration are as to whether the executor is liable for the loss of the two thousand dollars of Mrs. Baylies’ share, invested in government bonds and lost; whether he shall be allowed, as a credit, the sum of two thousand five hundred dollars for the professional services of Mr. Barker; whether he shall be allowed the item of two hundred and fifty dollars for money paid for clerical services, and whether this court has jurisdiction so far as relates to the Mrs, Rea trust.
The counsel for the executor insiste that the latter is not liable to make good to the estate the loss occasioned by the disappearance of the two thousand dollars invested in the bonds, 1. Because it was the devastavit of his co-executor; and 2. Because the beneficiary for life concurred in the making of the investment, in that manner, by the attorney of the executors, and is, therefore, estopped from claiming its restoration to the fund by the surviving executor. These, at least, I understand to be the grounds he takes.
It is undoubtedly a sound legal rule that one executor or trustee is not responsible for the wrongful act of his co-executor or trustee where he does not assent, or contribute, thereto, or concur therein. Sutherland v. Brush (7 Johns. Ch., 17), and the converse of the proposition is equally well settled. But, I apprehend^ this case does not present the question as to whether one executor is liable, under a given state of facts, for the devastavit of his co-executor.
Mr. Barker appears to have been the trusted counsel of the deceased and of his executors. He was regarded by them,—by some, if not all, of the beneficiaries,— and, perhaps, by all who knew him, as a man of integrity, and skilled in affairs. His career presents no new phase of life or character. A genial, kindly, care
That Mrs. Baylies assented and received the interest directly from Mr. Barker, through her husband or Miss Harriet S. Baylies, her daughter, can make no difference, in so far as the loss is concerned. There is no foundation for an estoppel in pais. She was not sui juris (Penman v. Slocum, 41 N. Y., 53).
The loss to the fund did not occur because of the investment in a mode not authorized by the will, but as a result of the insolvency of the agent. Mrs. Bay-lies, is only interested in the fund during her life, and neither her consent nor the consent of her children, as to the mode of investment, and the person by xvhom it was invested, can, in any event, affect those entitled to the fund at her death. Mrs. Baylies probably knexv very little about the affairs of the estate and their management. She was not familiar xvith business matters, and relied, doubtless, upon those upon whom the law devolved the responsibility in that regard, and the law is invoked for the protection of her rights, and it should not fail her.
Some stress is laid upon the fact, by the counsel for
Counsel for the executor has submitted a very able-brief, and has, among other things, called attention to the case of Banks v. Wilkes (3 Barb. Ch. R., 99). The facts in that case are substantially as follows: Charles Wilkes was banker for James Campbell, who died leaving funds in the banker’s hands. By Ms will he made Ms sister, Miss Campbell, sole legatee and ex
All the executors assented that Horatio should take and manage the estate of his farther, and Miss Campbell’s fund thus came into his hands. The assistant Y. C. says; “I do not discover any breach of trust in this circumstance. There is no proof that the defendants agreed to intrust the control and management of Miss OJs securities to HoraMo. They were simply passive, suffering them to pass into his custody.” I do not perceive any analogy between that case and the one under consideration. Here the agent is not one of the executors, as was the fact there, nor was the executor “simply passive” in the disposition of the funds, any more than was his co-executor. Both concurred in the mode in which the estate was managed. As the surviving executor was sole executor of Mr. S. S. Blackwell’s share of the estate, and as that share went into Mr. Barker’s hands, the conclusion is irresistible that it went there with the full knowledge and assent of Mr. Brown. At aH events, there can be no reasonable doubt that all of the funds of the estate were received by Mr. Barker with his full knowledge and assent, and it is certain that they remained there for six years after he became sole executor, with Ms like full knowledge and assent. If he did not origin
The credit claimed by the executor for two thousand five hundred dollars, paid to the administrator of Mr. Barker, for legal services rendered by the latter, must be disallowed. By the evidence it is shown that Mr. Barker from time to time, as extraordinary services were rendered, received pay therefor. In simply receiving and paying over the interest and other moneys, he retained commissions which belonged to the executors. As nearly as I can ascertain the amount so received, it was about two thousand three hundred dollars, besides
The other item of credit for two hundred and fifty dollars paid for clerical services in making up the account, must also be disallowed. Mr. Barker was agent for the executors. Had he been alive to render his account to his employers, he could have made no legal charge for such a service. It would have been a simple duty he owed them, to render an account of his stewardship; and the fact that his accounts were kept so loosely and carelessly as to have made the labor a very serious one, was a matter of which he could not reasonably complain. In this respect his administrator stands precisely in his place, and as his legal representative it was his duty, without charge, to furnish such account.
As to the counsel of the executor in this proceeding, however, the matter is different. It was formerly held that an executor could not be allowed any charges for making up his account, but by the act of 1863 it is declared that on every accounting the surrogate shall :allow to the executor, for services of counsel in preparing for and attending upon the accounting, not to exceed ten dollars per day. I think that the making up of the account is fairly embraced in this provision. In many, perhaps most, cases, the only preparation is in making out the account. The executor will be allowed for such services when the proper evidence shall be presented.
I think this court has no right to take cognizance of the separate fund in which Mrs. Rea is interested as
In view of the alleged difficulty of adjusting the accounts properly, because of the intermingling of the two funds, it is suggested that it is doubtless competent for Mrs. Rea in so far as her separate trust is concerned, to acquiesce in the result of this accounting, if she shall be so advised.
A decree must be entered in accordance with the. views above expressed. December 21, 1874.-