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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 (19 N.Y., 150) is quite in point. There one Henry was appointed special administrator of an estate, and he employed one Smith as his agent to collect rents of the estate. Smith, previous to 16th February, 1850, had collected $1,080, which he had not paid over, and was Henry's debtor to that amount. On that day, Smith was appointed special administrator in the place of Henry. In a suit upon Smith's bond his sureties contended that they were not liable for this amount, on the ground that it was not received by Smith as administrator. But this court says that "the money collected by
Smith as agent for Henry, while the latter was collector of the estate, was received by Smith in a fiduciary character, and it would have been a violation of duty on his part to convert the same to his own use. "The presumption then is that this money remained in his hands at the time he gave the receipt to Henry. The character in which Smith held the money was then changed; before, he held it as the agent for Henry, after, in his official character as collector; then the liability of the sureties attached." Applying these principles to the present case, McPherson held these assets prior to his appointment as the agent of the administrator; upon his appointment he held them in his official character, and then the liability of the sureties attached. As he received them under an agreement to hold them to be delivered to himself as administrator, when clothed with that character, the presumption is, in the absence of any proof showing the time when he parted with them, that he continued thus to hold them, and that the same were received by him in his representative character; and, consequently, the liability of the surety attached.
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.