22 N.Y. 188 | NY | 1860
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *190
It is claimed on the part of the defendants that there has been no breach of the bond; that McPherson, as administrator, did not convert and dispose of the assets of the deceased for the reason that, as administrator, he never had any assets in his hands. It does not appear from the testimony at what period McPherson converted to his own use the assets placed in his hands, to be held and used by him as administrator. In the absence of any proof to the contrary, we are to assume that he held these assets until his appointment of administrator was completed, and from thence, until the actual conversion, held them in that capacity. This was his agreement: this was the understanding of the parties when the assets were placed in his hands. Until the contrary appears we are to presume that he fulfilled his agreement and performed his duty. We are not at liberty to speculate as to what he might have done, nor to infer that he violated his agreement in this instance and committed a fraud, because he was guilty of other breaches of trust. The evidence offered of such violations of duty in those instances were properly rejected, as they did not tend to show that these assets were converted prior to March 23d. The case of Gottsberger et al. v. Taylor (
The judgment of the Supreme Court should be affirmed, with costs.
SELDEN, J., did not sit in the case; all the other judges concurring,
Judgment affirmed.