84 N.Y.S. 29 | N.Y. App. Div. | 1903
Letters of administration on the estate of David S. Provost, deceased, were issued on August 3, 1892, to the appellant, Harriet T. Provost, his widow, and John C. Provost, his father. The only asset of the estate was a policy of life insurance upon which there was collected on September 24, 1892, the sum of $5,054.15. John
On objections filed by the respondent to the amended account a reference was had, and upon the hearing it appeared- without' dispute that the policy, of insurance was payable to the estate of. the deceased; that a check for the amount made payable to the joint . order of the administrators was indorsed by both; and that a receipt for the money,, also signed by both, was given to the insurance company. The check was brought to the appellant for her indorsement by a son of her coadministrator, and Was taken away by him when indorsed, the money on it being collected by the coadministrator and so appropriated by him as to result in a .total loss to the estate. No part of. the principal fund was ever paid to the appellant; nor did any part of it pass through her hands, except in the matter of the indorsement of the check. On this proof the referee found as a fact “ that the principal of this estate, amounting to the sum of five thousand and fifty-four -J-jfV dollars, collected on or about the 24th day of September, 1892, was received by said Harriet T. Provost, as administratrix of David S. Provost, deceased, and that she is chargeable with said amount, together with interest thereon from the date that it was so collected.” By the decree appealed from the referee’s report is Confirmed and the appellant is required to render and file “ a proper and complete account, charging herself
The decree amounts to an adjudication that the appellant is 'liable for her associate’s defalcation. It is an adjudication confirming the finding of the referee that she has actually received the life insurance money, and it is clear that if she had received it and paid it over to her coadministrator, she would be liable for his subsequent default. The indorsement of the check, however, is not equivalent to a receipt of the money. This seems to have been expressly held in Paulding v. Sharkey (21 Hun, 276 ; affd., 88 N. Y. 432). In that case three executors conveyed real estate under a power, but the purchase price was paid by check to the order of one of them. The payee indorsed the check over to one of his associates by whom it was collected, and it was held that only the executor who collected it and his estate could be regarded as liable for the fund. The Court of Appeals considered only the joint act of signing the deed, the question of the liability of the payee of the check by reason of its indorsement not being under review, and the conclusion reached was that such joint act “when necessary and only formal,” was “ insufficient of itself ” to impose liability. But the General Term decision so far as it was in favor of the executor who indorsed the check was not appealed from, and it is an authority for the proposition that if the check in this case had been made payable to the appellant alone her mere indorsement and delivery of it to her associate would not in the absence of negligence render her liable for his subsequent defalcation.
The general rule governing the question of liability is laid down in Bruen v. Gillet (115 N. Y. 10), that where one of two or more trustees simply remains passive and does not obstruct the collection by a cotrustee of moneys belonging to the trust fund, he is not liable for the latter’s waste, but if he himself receives the funds and either delivers them over to his associate or does any act by which they come into the sole possession of the latter or under his control, and but for which he would not have received them, such trustee is liable for any loss resulting from the waste, The actual receipt and possession of the money is essential to the creation of the liability. In that case the funds were on deposit to' the credit of
In Davis v. Kerr (3 App. Div. 322) this court held that- the. presentation of an account in the Surrogate’s ‘Court in which an investment is credited as standing in the names of two trustees is sufficient proof of the receipt and joint possession of the trust moneys.. To the same effect, is Glacius v. Fogel (88 N. Y. 434,443). It would séem to follow, from these decisions and the others which have been
The appellant, having accepted the trust, is doubtless compellable to account as surviving administratrix. She appears to be asserting against the respondent as surety a claim upon the bond, and it may be that a loss will result to one of the parties for the default of the deceased administrator. Haying knowledge of the existence of the fund and of its disposition in so far as it came into the sole possession and control of her coadministrator, the appellant should, disclose the facts in her account in reference thereto, as she claims them, Without being obliged to make a voluntary admission of personal liability or to acquiesce in a decision having equal force. The respondent, of course, is not bound by the appellant’s assertion of facts tending tob'elieve her from liability, but is at liberty to prove possession and control of the assets on her part, or such negligence (Earle v. Earle, 93 N. Y. 104, 113) as may tend to legally charge her with liability for the fund and interest, or either, or a part of either.
The decree should, therefore, be modified by sustaining the appellant’s exceptions to the referee’s report and by directing the accounting as herein indicated, and as so modified it should be affirmed, without costs.
Bartlett, Woodward, Jenks and Hooker, JJ., concurred.
Decree of the Surrogate’s Court of Kings county modified in accordance with opinion of Hirschberg, J,, and as modified affirmed, without costs.