38 Misc. 613 | N.Y. Sur. Ct. | 1902
Objections have been filed to this account by Franklin B. Hunt, one of the residuary legatees named in the will of the deceased. By these objections he seeks to have the account of Richard L. Hunt, the sole surviving executor of above-named deceased, surcharged by an amount exceeding $12,000 more than that with which such executor has charged himself as having come into his hands as funds of decedent’s estate.
Letters testamentary were granted by this court on December 1, 1890, to Elizabeth P. Hunt, the widow, Richard L. Hunt, and Joseph G. Hunt, sons of the deceased.
The executors filed an inventory, showing personal assets coming into their hands amounting to $21,852.12, and represented as follows:
"Bond and mortgage of Wright Gillis and Henry
After several bequests, the testator made the following directions : “ I direct my said executors to invest, and keep invested,, in good and safe securities, the rest, residue and remainder of my estate, and pay the income which shall accrue 'therefrom unto my said wife as long as she shall live, and upon her death, etc.,” then provides for the manner in which the residuary estate is to be distributed after the death of his wife; one-sixth of the residuum to be distributed to Franklin B. Hunt, the objector herein, who now classes as his one-sixth of the residuary estate the sum of $1,679.04, principal, with accrued interest at the rate of five per cent, per annum', from the date of decedent’s death, which would amount to $293.83, making a total of-$1,972.87.
It appears from the testimony adduced on the hearing of the objections that, after the making of the inventory of decedent’s estate, the widow and the son, Richard L. Hunt, took no active part in the administration of the estate, but, by common consent, the son, Joseph G. Hunt, undertook its active management and reduced to his possession the three inventoried assets; he transacted all of the business of the estate, received and paid out all moneys due from the estate, all of the income -to the widow, and paid all legacies to legatees under the will. It further appears that Joseph G. Hunt, -the deceased executor, had residing with him the. widow, his mother and coexeoutor, and that Richard L. Hunt, the surviving executor, lived on a farm three miles from the place where his coexecutor resided.
On Rovember 23, 1895, Joseph G. Hunt, managing executor, suddenly died while on a business ¡trip to Rew York city. This
Deducting this from the amount collected, as aforesaid, left unaccounted for the sum of $3,584.78, which amount, by diligent effort on the part of the surviving executor, was traced into various investments made by the deceased executor during his life with funds of the estate converted to his own use, and the particular misappropriations are:
The amount so converted to his own use and misapplied by the deceased executor is sought by the objecting residuary legatee to be surcharged in the accounts of the surviving executor, Richard L. Hunt, and to make him responsible for the devastavit of his coexecutor. To so charge the surviving executor it must be shown that he was negligent and suffered his coexecutor to receive and waste the estate when he had the means of preventing it by proper care. The general rale is that the executor is responsible for his own acts, and not for those of his associates, and this rule applies as well to joint trustees.
The testimony here shows that the investments were made by the decedent in his lifetime, and that the executors continued the investments evidently deeming them advantageous to the estate. It is further shown that in the administration of the estate Joseph
Objections are dismissed and account allowed as stated, with the exception of those items agreed upon by counsel as being improper administration charges.
Counsel will hand up findings accordingly and decree will be entered.
Decreed accordingly.