38 N.Y.S. 1083 | N.Y. App. Div. | 1896
After a trial, George P. Avery recovered a judgment against the executors of Elizabeth Carter, deceased, which was affirmed, on appeal and was finally entered for the sum of $4,638.44. The executors did not qualify and enter upon the duties of their trust until nearly five months after the death of their testatrix, when letters testamentary were issued to them. The inventory of the personal estate of the testatrix was not filed until nearly two years after her decease, and as then filed showed a personal estate appraised at '$1,477.91. The executrix, Josephine F. Clason, is a niece of the testatrix, and by the terms of the will took a life estate in all of testatrix’s property, real and personal. The executor, William H. Jacob, is the son of Emma Lawrence Jacob, who takes the remainder of the estate upon the termination of the life tenancy. No settlement of the accounts of the executors having been had, and nothing having been paid upon Avery’s judgment, he presented to the surrogate, on November 12, 1890, a petition upon which a citation was issued requiring the executors to show cause why a settlement of their accounts should not He had. On November 20, 1890, the return day of the citation, the executors presented a petition to the surrogate praying that their accounts might be settled ; thereupon the proceedings were consolidated, the executors filed their account, and Avery filed objections thereto. After the evidence taken upon these proceedings had been closed, Avery procured a citation to be issued requiring the executors to show cause why their letters testamentary should not be revoked. Pending its disposition and that of the proceeding for the settlement of the executors’ accounts, Avery died, and Charles R. Avery, his executor, was substituted as a party in his stead. Thereafter the surrogate entered a decree denying the motion to remove the executors, and subsequently a decree was entered settling the accounts of the executors. An appeal from both decrees brings the matter before this court.
For a proper disposition of this appeal we do not deem it necessary to consider any other questions than such as are presented by the fifteenth specification in the objections filed to the account. It appeared upon the hearing that Mrs. Carter was, at the time of her death, the owner of, or at least that she held in her name, a
And if Mrs. Carter had title to the premises under her lease, then such lease constituted an asset of her estate and should have been inventoried as such (Trustees of Elmira, v. Dunn, 22 Barb. 402 Despard v. Churchill, 53 N. Y. 192), and the suppression of her title was a fraud upon her estate and the creditors thereof. And it is quite evident, from the- supplemental account filed, and the attitude of the executors in the action by which this estate was. apparently divested of title, that their claim is that the Baldwin judgment obtained in the action for rent is not an asset of the estate, but is in fact the property of Miss Ciason, for whom Mrs. Carter held as trustee. Such was the view taken by the learned surrogate. He seems to have held that, because an appeal was. pending in the Baldwin action for rent, it did not, therefore, constitute an asset of the estate, and that in any event the evidence warranted the conclusion that Mrs. Carter simply held the lease as trustee for Miss Ciason, and that, therefore, the estate had no interest in the judgment or lease. We find ourselves unable to. agree with either conclusion upon the case as presently developed. The judgment as it stands is the property of this estate, and an asset of the estate. It does not appear that there was any stay of proceedings pending the appeal, or that there exists any obstacle standing in the way of its collection. The pendency of an appeal does not change its character as an asset or prevent its collection by any of
It is the claim of the creditor who has prosecuted this proceeding, and the evidence tends to establish the claim, that the estate is in fact solvent and abundantly able to pay the judgment which he holds. It is quite evident that there is intense hostility upon the part of tlie executors against the claim, which lias been established after a bitter contest. Both executors refuse to recognize any right under it, except so far as they have been compelled thereto by its legal force. Their attorney also testified, without doubt to their satisfaction, that he has benefited the estate by “ preventing Mr. Avery from collecting an unjust claim against the estate.” The unjust claim here mentioned is a judgment of the Supreme Court, and the resistance of the claim has already increased its amount in costs and expenses upwards of $1,000. This attitude upon the part of the executors is in active hostility to the duties which devolve upon them in the proper discharge of their trust. That duty requires that they shall actively preserve all of the property which belongs to the trust estate, and see that it is devoted to the purposes which the trust and the law require. It was the bounden duty of these executors to have called to the court’s attention the lease of their testatrix, when title under it was attacked, and their failure to do so was a fraud upon the court and upon the creditors of the estate. Among the duties solemnly imposed is to pay debts and not resist claims when properly established. This judgment is an established claim, of the highest character known to the law, and it does not comport with the duties of trustees to refuse recognition of it, make no
It follows from these views that the decree of the surrogate, settling- the accounts of the executors, should be reversed and a further accounting ordered And that the decree refusing to revoke the letters testamentary of said executors should he reversed, and the motion to revoke said letters testamentary should be granted and an administrator of said estate with the will annexed be appointed in their place, with the costs of this appeal to appellant, to be paid by said, executors personally.
All. concurred.
Decree settling the accounts of the executors reversed and a further accounting ordered. Decree refusing to revoke letters testamentary of said executors reversed and motion to revoke granted and an administrator with the will annexed directed to be- appointed by the surrogate, costs of appeal to the appellant to-be paid by the executors personally.