Elmendorf v. Lansing

4 Johns. Ch. 562 | New York Court of Chancery | 1820

The Chancellor.

The defendant Lansing’s answer, is a sufficient admission of abuse of trust. After residing several years out of the city and county of Albany, he returned there in 1817, and took from the custody of the plaintiffs, without their knowledge or consent, a bond and note, being part of the testator’s assets, and which amount* ed, on the face of them, to 3,400 dollars, and upwards. He applied to the obligor of the bond, and received 200 dollars, in part payment of it, and then sold the bond and note to a third person, and took a bond and mortgage for the amount to himself. The bond was then put in suit by the purchaser; but, upon the remonstrance of the plaintiffs, the sale was rescinded, and the bond and note restored to the defendant. He then sold the note to another person, and that sale was-afterward rescinded. The bond was then ordered to be put in suit, and he drew a check on the Bank of Albany, where the executors had made deposits of the trust moneys, for 450 dollars; and the check was delivered to the other defendant, who resided in his family, and is charged to be insolvent.

These acts show an unequivocal disposition to convert the assets of the testator to his own use, and the proof is full and satisfactory to the point, that this defendant is worth little or no property. It becomes, therefore, just and necessary, that the defendant L., should be restrained from further intermeddling with the estate, as a co-executor $ and that he should restore the bond and note which he so improperly took, and has so injuriously converted ; and that the suit against the bank, upon the check, should be perpetually enjoined, and the check cancelled.

It is a settled principle of this Court, that an executor, or other trustee, who mismanages, or puts the assets in jeopardy, by his insolvency, either existing or impending, should be prevented from further interfering with the estate, and that the funds should be withdrawn from his hands. The authorities to this point are sufficiently numerous. (Rous v. Noble, 2 Vern. 249. Batten v. Earnley, 2 P. Wms. 163. and vide 3 P. Wms. 334. S. P. Carth. 458. Taylor v. Allen, 2 Atk. 213. Utterson v. Mair, 4 Bro. 277. 2 Ves. jun. 95. Lake v. De Lambert, 4 Vesey, 592. Middleton v. Dodswell, 13 Vesey, 266.) I shall, accordingly, restrain the defendant L. from acting, or intermeddling any further with the assets, or in the administration thereof, as a co-executor; and shall direct him to restore the bond and note to the plaintiffs, and cause the check on the bank to be cancelled; and that the suit thereon be perpetually enjoined.

As to the 200 dollars, which L. has collected, that may be left to be accounted for when he is called to an account, at the instance of creditors or legatees, for his previous share of the administration of the estate, in which, perhaps, he may have a claim for just allowances. This suit is founded on principles of preventive policy, and to stay future waste and conversion of the assets. I am not disposed to go further upon this present application by the co-executors. I shall not charge the defendants with the plaintiffs’ costs of this suit, but I shall allow the plaintiffs to charge their reasonable costs and charges of this suit, upon the assets in their hands.

Decree accordingly.