79 A.D. 56 | N.Y. App. Div. | 1903
This is an appeal by Sarah Hoagland French, a legatee under the will of Isaac E. Hoagland, from a decree of the surrogate of the county of Kings, confirming the report of the referee, overruling, exceptions to the account of Isaac A. Hopper as one of the executors of said will, and settling said account and discharging said executor. There were three executors, all of whom duly qualified, Henry P. Robinson, a former partner of the testator, Isaac A. Hopper, the respondent, and Julius K. French, testator’s son-in-law and husband of the appellant. The present controversy relates to a- fund of about $11,000, substantially all the property left by the testator, which he had turned over to Robinson, apparently for the purpose of a new partnership formed or to be formed between them, shortly before his death on February 28, 1898. The appellant contests Hopper’s account because he fails to charge himself as executor with the said sum of $11,000.
It appears that Robinson was the active executor. He engaged Mr. J. Woolsey Shepard, who had been counsel for the testator and is counsel for the appellant, to probate the will; he carried on the business in which the testator had invested the $11,000; he received insurance money and paid it over to the beneficiaries, and paid to Sarah Hoagland French, the appellant, as trustee for the widow, $10 weekly until September, 1899. At various periods between August, 1898, and February, 1899, Hopper advanced to Robinson for the purposes of the business sums aggregating about $20,000, and in the latter month executed articles of partnership with him. In the fall of .1899 the executor French requested Robinson to deposit the fund turned over to him by the testator, and now reduced to about $8,000, with a trust company. Robinson not having complied with this request, upon the petition verified December
The learned referee found “ That all the parties interested either as executors or beneficiaries acquiesced in Robinson’s retention of the fund, and Hopper was never requested to get in the fund. Up to the time of said application all the parties believed Robinson to be financially responsible and entirely trustworthy. All the parties are equally innocent of the misappropriation of the fund by Robinson, nor did any of them have any knowledge of such misapplication, nor any notice to arouse their suspicion.” He also found as conclusion of law: “ I. That no property or assets of the estate of Isaac E. Hoagland, deceased, have come into the possession of the executor, Isaac A. Hopper. II. That the executor, Isaac A. Hopper, is not responsible for the breach of trust by the executor, Henry P. Robinson.”
Practically the sole ground urged for reversal is that the executor Hopper was guilty of negligence in that he did not exercise the ordinary care and prudence in connection with, the administration of the estate which he was bound by law to exercise; and the question of the case is “ whether the conduct of the executor has been guided by good faith, reasonable judgment and an intention to fairly and fully discharge his duty. If so, it cannot be that.he should still be held liable for a devastavit.” (O’Conner v. Gifford, 117 N. Y. 275, 280.)
In the case at bar the funds were lawfully received by Robinson, ■and that there was nothing to excite in Hopper’s mind any suspicion of his integrity or responsibility is evident from Hopper’s •intrusting Robinson with about $20,000 of his own money.
“ The rule of liability,” say the court in Cocks v. Haviland (124 N. Y. 426, 431), “ does not go so far as to charge an executor -having none of the funds of an estate in his possession or under his
It is also claimed by the appellant that Hopper became liable because-he was a partner of Robinson, but the evidence shows that he did not become such partner until February, 1899, and in the absence of an agreement to assume such liability, the incoming partner-is not liable-for the prior debts of the firm. (Peyser v. Myers, 135 N. Y. 599; Corner v. Mackey, 147 id. 574.)
For the reasons stated, the report of the referee was properly confirmed, and the decree of the surrogate should be affirmed, with costs.
Goodrich, P. J., Bartlett, Hirschbbrg and Jenks, JJ., concurred.
Decree of the Surrogate’s Court of Kings county affirmed, with costs.