65 N.Y.S. 1120 | N.Y. App. Div. | 1900
The plaintiff, George IT. Forbell, was the committee of a lunatic named William P. Forbell. The lunatic is now dead, and the defendants (one of whom is the plaintiff) were duly appointed as administrators, but George IT. Forbell has since been removed. While both of them were administrators, this action was brought by the committee, said George IT. Forbell, against himself and the other defendant as such administrators to settle his accounts as such committee. Judgment was entered in favor of the defendants as administrators, against the plaintiff, for $9,874.76, the amount found to be due to the estate of the lunatic from the said George IT. For-bell as such committee. Jacob Lott Van Wicklen was one of the sureties on the bond given by the said George Ü. Forbell as committee. He is now dead, and this motion is made by David S. Van Wicklen, one of the heirs of Jacob Lott Van Wicklen, who asks to be allowed to come in and defend the action. This motion was not made until the bond which Jacob Lott Van Wicklen made was sought to be enforced, George U. Forbell, the committee, being insolvent, and unable to pay the amount of the judgment. On the hearing the motion was denied and appeal comes to this court.
The principal contention of the appellants is that upon the appointment of Forbell as administrator there was, as matter of law, á transportation of all of the funds and effects of the incompetent from the custody of the committee to that of the administrator, and that the bond of the committee was virtually discharged ; that the responsibility passed to Forbell as administrator, and that for any
It is not claimed that there is any irregularity in the judgment; it is conceded that it binds the appellants; and, as they have no superior equities to the heirs of the lunatic, we fail to discover any reason why they should be permitted to come in and defend upon the theory which is asserted on this appeal. In the case of Gottsberger v. Taylor (19 N. Y. 150), relied upon by the appellants, the court held that the money collected by Smith as agent for Henry, while the latter was collector of the estate, came into his hands while acting in a fiduciary relation, and that the presumption was thus raised that there had been no violation of duty on the part of Smith and that the money was still in his possession at the time he gave the receipt to Henry, at which time the liability of the sureties attached. In tiie case at bar, however, there is a judicial determination that the committee owes the estate of the lunatic a given sum of money; the execution issued upon the judgment has been returned unsatisfied, and there is no suggestion that the money or property was in the hands of the committee at the time the bond of the administrators was made and executed. Whatever presumptions may have existed in favor of the committee were available in 'the action brought by the committee for a settlement of the accounts, and the judgment which determined that the committee was indebted to the estate, which indebtedness has not been paid, disposes of the question. If the administrators had given the committee a receipt for the property, if there was any suggestion of anything more than a technical defense, and one which is without superior equities to commend it to this court, there might be some justification for reversing this order. Under the circumstances of this case, however, no end of justice is likely to be served by such a disposition, and the matter calls for an affirmance of the order.
The order appealed from should be affirmed, with costs.
All concurred, except Jems, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.