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The main defense is founded upon the alleged fact and assertion that the defendant did not participate in the administration of the estate of the decedent, and, therefore, that she was not chargeable with liability for the failure to make the investment, as directed by the will, of the share to which the plaintiffs were entitled on the death of their father David Cocks, or for the devastavit of the two executors who took charge of the estate and assumed to administer it. Upon this subject it appears and the trial court found that Harrison Cocks and George J. Barlow, immediately after the testator's death, took actual possession of his assets and property, and that they at once became and, until the time of the failure in 1876, continued to be the acting executors of the will, and that during that time no portion of the assets came into the hands of Mrs. Haviland, except that which she received as and for her share of the residuary estate, and that she took no active part in the management of the estate, but left its management entirely in the hands of those two executors. The proposition is well settled that the mere fact that one of two or more executors or trustees is passive and does not interfere with the act of his co-executors in taking possession of the property and collecting moneys of the estate, will not charge him with liability for waste by them, unless he has some reason to apprehend that such may be the consequence of their taking it and making such collections. (Bruen v.Gillet, 115 N.Y. 10" court="NY" date_filed="1889-06-04" href="https://app.midpage.ai/document/bruen-v--gillet-3607365?utm_source=webapp" opinion_id="3607365">115 N.Y. 10.) There
is no finding or evidence to warrant the conclusion that the character and habits, business or otherwise, of Harrison Cocks and Barlow were apparently such as to create suspicion in the mind of the defendant that they were not prudent, reliable and responsible business men, until their failure in 1876, about eight years after they had assumed the administration of the estate under the will. In the meantime, they had divided it into shares and handed over to the beneficiaries, except David, their portions of the residuary estate. And on the occasion when the bulk of it was so divided all of them including David were present, and the share for his family was apportioned and set apart by those two acting executors. It was then by David examined and handed to Barlow to be taken care of. There was no participation of Mrs. Haviland in the matter other than to receive the share apportioned to her by them. It is not claimed that by any act of hers she became chargeable to the plaintiffs, but that her liability arose from negligence on her part to perform the duty imposed upon her by the will, and which she assumed by the acceptance of letters testamentary; and that such neglect was in the failure to make the investment of the share to which the plaintiffs were eventually entitled. It is true that by the will the duty was devolved upon the executors alike to observe and execute all of its provisions, but one is not liable for the misconduct or neglect of another to which the former has in no manner contributed nor by any act has enabled him to violate his duty or to neglect its performance to the prejudice of the beneficiaries of the trust. The defendant did nothing to place the funds or property in the control of the two acting executors or to give to them its management. This they assumed, and she did not attempt to obstruct their administration of the estate. The court determined, as conclusion of law, that by her neglect to perform her duty in respect to the investment of the one-fifth of the amount of the residuary estate for the benefit of the plaintiffs, the defendant became liable to them for that amount, or so much thereof as was not invested pursuant to the direction of the will. This conclusion rests upon the mere omission of
Mrs. Haviland to act for the accomplishment of that object, and to consummate it. The rule of liability does not go so far as to charge an executor having none of the funds of an estate in his possession or under his control, with the consequences of the neglect or failure of his co-executor to make the disposition by investment or otherwise of the subject of the trust pursuant to the direction of a will where the latter lawfully has the entire fund in his hands and assumes its management, unless there is some occasion to suspect that he has or may fail to execute the will in that respect. (Croft v. Williams, 88 N.Y. 384" court="NY" date_filed="1882-03-21" href="https://app.midpage.ai/document/croft-v--williams-3617634?utm_source=webapp" opinion_id="3617634">88 N.Y. 384;Ormiston v. Olcott, 84 id. 339; Wilmerding v. McKesson,
103 id. 329.) When it was established that without aid of the defendant the two executors, Harrison Cocks and Barlow, took the property of the estate into their hands and assumed the active duty of its management; that none of it came to her possession; and that she was merely passive in respect to it, the burden was cast upon the plaintiffs to prove some facts or circumstances having relation to the character or habits of those persons, or to the manner they apparently were executing the trust, which would fairly justify suspicion that they were or might be chargeable with its mismanagement. In that case it may be that their co-executor would be called upon to investigate, and, if necessary, to cause them to render an account and thus present the condition of the fund with a view to such direction as the situation should require for its protection and the proper disposition of it. There was no fact found, nor does there appear to have been any evidence to permit the conclusion that Mrs. Haviland, before the failure of the firm of Cocks Barlow (composed of the two acting executors), had any reason to suppose or apprehend that they would divert the fund set apart for David's family from the purpose directed by the will. It is, however, found that they failed to make the investment for the benefit of the widow as directed by the will; but that they did invest for that purpose, at the rate of ten per cent interest, $10,000, secured by mortgage upon land in the state of Wisconsin; and that although the defendant remonstrated against
such investment before it was made she took no action to compel them to make a proper investment of that fund. This had relation to the matter of the income for the widow and the investment which the will directed to be made to produce it. The investment so made in violation of the trust was not assented to by the defendant. No loss resulted from it. It is not seen how the taking of that security upon the Wisconsin land would alone furnish to a prudent and reasonably cautious person suspicion that the executors taking it had failed or would neglect to properly execute the will in respect to the fund in which David and his family were interested. And the same, in connection with it, may be said of the fact that the defendant knew as late as 1872 that no other investment had been made for the benefit of the widow, and that she then joined with four other executors (including Harrison Cocks and Barlow) in an undertaking to the widow that her annuity should be paid. This may well have been executed by the defendant upon the faith that the acting executors would provide for and see to the payment of the annuity. This matter was independent of the duty in respect to the one-fifth which is the subject of this action. There is no finding of any specific fact which tends to charge the loss of the funds in question or failure to invest it to any negligence of the defendant other than that she passively permitted the two acting executors to have the exclusive management of the trust created by the will. There may be cases where an executor cannot passively permit his co-executor solely to control the management of an estate without becoming responsible for his failure to properly execute the will to the prejudice of its beneficiaries, but that depends upon something further than the mere fact that letters testamentary have been issued to and accepted by the former. This rule is distinctly recognized in the cases before cited. The conclusion that by the negligence of the defendant she became liable to the plaintiffs for the amount uninvested of the one-fifth of the residuary estate given them by the will, seems not to be supported by the facts appearing in the record before us.
In Earle v. Earle (93 N.Y. 104" court="NY" date_filed="1883-10-02" href="https://app.midpage.ai/document/earle-v--earle-3608916?utm_source=webapp" opinion_id="3608916">93 N.Y. 104) the executor who sought to relieve himself from liability had not only joined in an accounting charging himself jointly with his co-executor, but he had been somewhat active in the matters of the trust, and negligently had permitted persons not executors to have more or less charge of the funds, and besides that, his co-executor was a woman of feeble health and without business experience. That case does not seem applicable to the situation in the present one. Nor in view of the facts upon which it was founded is the proposition declared in Remington v. Walker (99 N.Y. 626" court="NY" date_filed="1885-04-28" href="https://app.midpage.ai/document/remington-v--walker-3617243?utm_source=webapp" opinion_id="3617243">99 N.Y. 626) essentially applicable to the case at bar.
The facts as represented by the findings of the court or by the evidence do not, we think, justify the conclusion that the defendant was charged with liability for the loss to the plaintiffs occasioned by the default and misconduct of the two acting executors.
The final and interlocutory judgments should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgments reversed.