86 N.Y.S. 990 | N.Y. App. Div. | 1904
The two plaintiffs are sureties on the official bonds of two administrators. The three defendants are the two persons, Henrietta Ward and William A. Cloutier, who were such administrators, and their successor. The suit arises out of a misappropriation and conversion of the funds of the .estáte by the defendant Cloutier,, one of. the former administrators, who seems to have fled the State-before this suit was begun. The prayer asks that an accounting be ordered between the parties so as to ascertain the amount of the' intestate’s estate; that the distributive, share of two of the defendants, as next of kin of the intestate, may be ascertained and set off against and applied to the payment of the damages caused to said estate by the violation of the condition of the said bond; that, the amount of the defalcation of the said former administrators may, be ascertained and that judgment may be entered against them in the first instance; that it may be decreed that the plaintiffs are secondarily liable therefor after the defendants, and that an injunction be granted restraining the present administratrix from prosecuting the. plaintiffs on the bond whereon they are sureties. There are authorities which go far to sustain the propriety of such a suit. (Gibbs v. Mennard, 6 Paige, 258 ; Washington v. Tait, 3 Humph. [Tenn.] 543 ; Ardesco Oil Co. v. N. A. Mining & Oil Co., 66 Penn. St.
The defendants Cloutier and Ward in their administration were “ jointly liable for joint acts and severally liable for their own acts.” The sureties are “ liable for the joint acts of the principals and for the individual defaults of each.” (Nanz v. Oakley, 120 N. Y. 84, 90.) The court found that Cloutier’s misappropriation and conversion, without the knowledge of any of the other parties to this action, was $4,132.78, and that a large part of that sum was drawn out of moneys deposited in a bank to the credit of Cloutier and Ward as administrators, and was “ secured ” by Cloutier’s drawing and signing checks which he procured to- be also signed by Ward, by falsely representing to her that they were to be used in the pay-. ment of the debts- of the estate. The evidence warrants this finding. Under the authority of Bruen v. Gillet (115 N. Y. 10) the defendant Ward, generally speaking, would be liable. Her act in signing the joint checks which permitted Cloutier to draw upon their joint account as administrators was ah act whereby alone Cloutier obtained the money, and, therefore, she is responsible as Gillet was held responsible in Bruen v. Gillet (supra, 17). (See, too, Matter of Provost, 87 App. Div. 86.)
The court finds that an item of $552.12, which was deposited in the Greenpoint Savings Bank to the credit of the intestate, was withdrawn by Cloutier on his sole signature, and was converted by him. And the court further finds that an item of $1,000 was represented by a check drawn to the order of Cloutier and Ward, administrators, which was indorsed by Ward as administratrix, and left by her with Cloutier for deposit in the estate account. These items are on a different footing than the main part of the money that was converted by Cloutier. For in the absence of her negligence, Ward
The theory of the plaintiffs is that the defendant Ward, as administrator, was guilty of negligence, fraud, misconduct and a violation of trust, and assisted, connived at Cloutier’s acts, and procured and gave an opportunity to Mm. Their proposition is that although Ward took possession of the funds of the estate jointly with Cloutier, she took no part in the administration, but was merely a passive thing, blindly assenting to all that Cloutier did, and signing witK out question checks in blank drawn against their joint account as administrators. The court found that “ the defendant Henrietta Ward consented to apply for such letters of administration, jointly with the said Cloutier, and accepted the grant thereof, upon the understanding assented to by the plaintiffs that her connection with the administration of the' estate should be nominal and passive, and .that the said Cloutier should be the active administrator of the estate.” The learned counsel for the appellant states in his brief that, upon this appeal, the question now is : “ Did Henrietta Ward assume the duties of administrator at the request of the plaintiffs, to be a mere passive administrator, and did she as such administrator sign away the estate by reason of the request of the plaintiffs, the bondsmen, that she should do so if Cloutier, her co-administrator, should ask her ? ” There is a sharp question of fact involved in this finding.
The witnesses agree that immediately after the death of the intestate, there was a meeting at the house of Ward, when the question . of administration was discussed and determined. Present were the defendants Ward, her married daughter Neill, Messrs. Palmer and ■ Martin, the plaintiffs, Dr. Hamlin and the Hon. Frederick E. Crane, then at the bar, and now a learned county judge of Kings county. The witnesses are not in accord as to the order of suggestion of administrators. It is testified that the defendant Ward was • first suggested, but that she demurred as not being a woman of business. It is testified that Cloutier was first suggested, to be asso
It is to be noted that two interested witnesses testify one way, and two interested witnesses the other. Of the two disinterested witnesses, Judge Crane and Dr. Hamlin, the latter is against the version of the defendants. The testimony of Judge Crane is not essentially contradictory for the reason that he was absent from the meeting for fifteen minutes. It was not necessary for the learned Special Term to impute falsehood to the witnesses against whose version the finding is made. ■ Few witnesses, after the lapse of considerable time, can readily remember or accurately state the particulars and the details of an informal discussion participated in by several persons. The version of Ward and Neill is not inherently improbable, but entirely consistent with - the situation. Mrs. Ward
If, then, Ward consented to apply for the letters jointly with Cloutier, and .accepted the grant thereof with the general understanding, assented to by the plaintiffs, that her conduct should be nominal and passive, and that Cloutier should be the active administrator of the estate, and if the plaintiffs represented to her that all she need do was to sign the papers that Cloutier brought to her, and if she accepted and discharged the office perforce of such representations, then I think that the sureties cannot prevail in this suit as against Ward. If the sureties were content to become liable for the joint administration of Cloutier and Ward, under an arrangement that Ward should do no more than sign all papers presented to her by ' Cloutier, they had the right thus to extend, or only thus to limit, their liability. (United States National Bank v. Ewing, 131 N. Y. 506 ; Benjamin v. Rogers, 126 id. 60.) Certainly as against Ward they cannot assert that they had no power thus to do; for no question of pxiblie policy is involved as between them. There is no proof that Ward was guilty of any fraud, and the proof does not warrant
On the other hand, I question whether Ward would be answerable to the plaintiffs for whatever sum they might be required to pay for the default of Cloutier. It is true that the court in Sperb v. McCoun (110 N. Y. 605, 610) says that the general proposition has been apparently so decided in' some cases, not, however, citing any decision in this State. Reference to one of the authorities cited (Brazer v. Clark, 5 Pick. 96) indicates the basis of such doctrine. In that case the court puts such liability on this ground: “All executors, while living and in the enjoyment of the trust, may inspect and control the conduct of each other; they may watch over the funds; and they may complain of the misconduct of aiiy one to the judge of probate, who may in his discretion remove him from the trust, and so there may be no great hardship in their being made "answerable for each other.” But in this case, if the sureties could recover of Ward, then it would be based upon her alleged negligence or misconduct in being passive, in not taking an active part in the trust. But the sureties represented to her that she might remain passive, relying wholly upon Cloutier. It would be illogical to hold that she was not negligent as to them, so far as her conduct of the estate was concerned in the light of their, representations and-assurances, and yet when the sureties are compelled to make Cloutier’s default good, hold her as to them because she was not active in her trust.
All concurred.
Judgment affirmed, with costs.