
    Nathaniel R. Denton, John Baird and others, App’lts, v. George W. Sanford and Andrew J. Mapes, Ex’rs, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 14, 1886.)
    
    1. Executor and administrator—Trustee—When entitled to complete testator’s contract.
    Testator, previous to his death, foreclosed a mortgage upon premises situated in New Jersey, and bid in the property for $11,000, but before the sale was consummated and the deed given he died. After his death the executors were called upon to complete the sale and pay the purchase price, which they did, After trying to sell the property for several years the executors conveyed it for $6,000, taking back two mortgages for the full amount of the purchase money. In said mortgages certain moneys held as trust funds under the will were invested. The executors rendered a final account after citations personally served upon the petitioner herein. Upon that accounting it appeared that all the legacies had been paid except those represented by the mortgage. A decree was entered settling and allowing the accounts as filed and approving the investment of the trust money and discharging the execuiors. Subseq iently it turned out that, unknown to the executors, and probably also to the testator, there was a defect in the title to the real estate. And the mortgagor ceasing to pay the interest, the mortgage was foreclosed and only $2,300 was realized, which the trustees (the same persons who had been executors) accounted for. In a suit to make the trustees personally liable for the deficiency in the trust fund: held, that the executors having acted in good faith in completing the contract of purchase of the testator must be assumed to have been bound to perform the contract. They were not obliged to wait until it was enforced against them by legal proceedings.
    2. Same—Must not invest in mortgages on property out op the state—When exceptions to rule.
    While it is a general rule that an executor or trustee residing in this state and deriving his authority from a will executed and admitted to probate here cannot invest trust funds in mortgages upon real estate situated out of the state; yet that rule has some exceptions, and the investment in this case comes within the exceptions to the rule.
    3. Same—When decree op surrogate final.
    The decree of the surrogate upon the final accounting of the executors (after citations personally served upon all the parties interested) furnishes absolute protection to them so long as it remains unimpeaclied and in force.
    Appeal from a judgment of the supreme court general term, second department, affirming an order of the surrogate of Orange county, dismissing the petition as to ail the petitioners who appeared herein.
    
      Benjamin Low, for app’lts; F. V. Sanford, for resp’ts.
    
      
       Affirming 39 Hun, 487, mem.
      
    
   Earl, J

Samuel Denton died April 7, 1874, leaving a will in which these respondents were appointed executors, and leaving personal estate inventoried at about $48,000, but actually worth much less. He gave legacies to various persons, and created trusts and made these respondents trustees of $3,000, and ordered the interest to be paid annually to. Nathaniel R. Denton, and at -his death the principal sum'to be divided between his children; of $1,000, and ordered the interest to be paid annually to John Baird, and at his death the principal sum to be -divided between his children, and he also made them trustees of $500, for the benefit of George W. Denton.

Previous to his death he held a mortgage upon premises situated in the state of New Jersey, and he there commenced a foreclosure of that mortgage in the court. of chancery, and obtained a judgment for foreclosure, directing, a sale of the mortgaged premises. In pursuance of that judgment, the premises were sold, and bid off for the testator by his attorney for the sum of about $11,000, which was the amount of the prior liens and incumbrances upon the premises, together with the costs of the foreclosure; but before the sale was consummated, and the deed given, die died. After his death the executors were called upon to complete the sale, and pay the purchase price, and on the 8th day of June, 1874, they took the deed in their individual names, but for the benefit of the estate. All this they did acting in good faith, under the advise of counsel, and in the exercise of reasonable prudence and care. They held this real estate until April 2, 1877, in the mean time renting it, and making diligent efforts to sell it; and, having failed in such effort's/bn'that day they conveyed it'to John Burt for-$6,000, and on the,same day he conveyed it to Mary IP. Maples, and .she executed to Burt two mortgages,-—a first mortgage to secure $4,500, and a second one to secure $1,500, of the purchase money.' The' mortgage for $4,500 was assigned tb" the' 'executors as trustees-for the security, and as an investment-of the funds belonging to the three-' trusts above mentioned.

. Subsequently, to that date the..executors rendered a final account of their proceedings, after citations personally served - upon all - these -petitioners.. - -Upon.. that accounting it appeared that they had paid all' the legacies except those invested in and represented by the mortgage .for $4,500, and another trust of $1,500, and the surrogate made a decree in which-he adjudged that the" account of the executors should be finally settled and allowed, as filed and adjusted; and the decree recited further as follows: “And, it further appearing that said executors have the sum of $6,000, invested on bond and mortgage for the following persons:' The sum of $3,000 for said Nathaniel R. Denton, the sum of $1,000 for John Baird, the sum of $500 for' George W. Denton, and the Sum of $l,500- fór the said---Emily Conklin/ and it further appearing that said legatees Nathaniel R. Denton, John Baird, and George W. Denton claim interest on their respective legacies from the date of the'death of said Samuel Den-ton, which occurred on the 7th day of April, 1874; and after hearing the respective counsel in this matter, and due deliberation being had thereon, it is ordered, adjudged and ■decreed that said executors pay to Nathaniel E. Denton the interest on his said legacy of $3,000, from April 7, 1874, being the sum of $210; and that they pay to John Baird the interest on his said legacy of $1,000, for the same period of time, being the sum of $70; and that they pay to the general guardian of said George W. Denton the interest on his said legacy of $500, for the like period of time, being the sum of $35,—said interest amounting, in all, to the sum of $315, and for which amount said executors are credited in the foregoing statement;” and it was further decreed that the executors, upon complying with the terms of the decree, should be discharged. Thereafter interest on the two mortgages was regularly paid, down to the first day of April, 1882, and paid over to the persons entitled thereto under the various trusts and the decree of the surrogate. Subsequently it turned out that, unknown to the executors, and probably also to the testator, there was a defect in the title to the real estate, and in consequence thereof the mortgagor ceased to pay the interest upon the mortgage for $4,500, and it was foreclosed by the executors; and there was realized upon such foreclosure, after deducting the costs and expenses of the same, nearly $2,300, for which they have accounted. After that time no interest was paid to these petitioners, and they filed this petition in the surrogate’s court calling the trustees to account for the money invested in the New Jersey real estate, and asking that they be made personally liable for any deficiency in the trust fund.

There is nothing in the proof or the findings of the surrogate impeaching the perfect good faith of the executors in all their transactions. The testator having bid off the real estate in New Jersey, and as we must assume, having become personally obligated to pay his bid, and to perform his contract of purchase, these executors representing his estate were bound to perform that contract. They were not obliged- to wait until it was enforced against them by legal proceedings, but they had the right voluntarily to discharge the obligation which their testator had incurred.

It matters not that they paid the money and took the deed before they had qualified as executors. After they had qualified they could- ratify what they had previously done, and thus make that legal which was before illegal. They cannot be charged with a devastavit in talcing money of the estate before they had received their letters, and acting in good faith, and with what then appeared to be reasonable prudence, _ using it to discharge an obligation apparently valid-' resting upon their- testator.- They thus found themselves with this land belonging to the estate situated in the state of New Jersey. They sold it for the best price they could obtain, which was, without their fault, much less than cost. Having paid ah the legacies which were due and payable, and which they were bound to discharge in cash, they took the two mortgages for $6,000; to represent the trust funds which they held. The mortgage for $4,500, in which these petitioners were interested, was apparently adequate security.

While it is a general rule that an executor or trustee residing in this state and deriving his authority from a will executed and admitted to probate here, cannot invest trust funds in mortgages on peal estate situated out of the state, yet as stated in Ormiston v. Olcott (84 N. Y , 339), that rule is not universal and has some exceptions. There Finch, J , said: ‘1 The rule should not be made arbitrary and inflexible, and so rigid as to admit of no possible exceptions, for it is merely an outgrowth or consequence of the broader and admitted proposition that the duty of a trustee in making investments is to employ such diligence and such.prudence as in general prudent men of discretion and intelligence _ in such matters employ in their own like affairs. While, therefore, we are not disposed to say that an investment by a trustee in another state can never be consistent with the prudence and diligence required of him by the law, we still feel bound to say that such an investment, which takes the trust fund beyond our own jurisdiction, subjects it to other laws and the risk and inconvenience of distance and of foreign tribunal, will not be upheld by us as a general rule, and never unless in the presence of a clear and strong necessity or a very pressing emergency.

We think this investment comes within the exceptions of the rule. Here was land belonging to the estate and the trustees sold it. Not being able to obtain cash, they took a first mortgage, which was supposed to be ample security to represent the trusts. They did not take available funds, and carry them out of the state and there invest them in real estate, but they invested thé trust funds which regularly and legitimately came to them, upon land belonging to the estate which they sold, and we cannot say that it was a breach of duty on their part so to invest them; and if there were nothing more in the case, the loss upon thé investment, however disastrous to these petitioners, could not be cast upon the trustees.

But we think, also, that the decree of the surrogate: upon the final accounting of the executors furnishes absolute protection to them. These petitioners were parties to that accounting, and it does not appear that any objection was there made to the-payment of $11,000 in discharge, of the testator’s bid, or to the mortgage of $4,500, taken in part to secure the two sums of $3,000 and $1,000, in which the petitioners were interested. Upon that accounting the executors were charged with the whole amount of the inventory, and with the increase thereof, and they were credited by loss on the inventory, by expenses and legacies paid, and by $6,000 invested in these two mortgages; and it appears in the decree that the $6,000 included the trust funds in which these petitioners are interested. That decree, which has never been impeached or reversed, finally settled and allowed the accounts thus presented. So long as it remains in force, none of the parties thereto can object that the $11,000 was not properly paid for the real estate in New Jersey; that the two mortgages, amounting to $6,000, were not properly taken; or that the mortgage for $4,500 did not represent the two trust funds in which the petitioners claim an interest. Code, § 2742; In re Tilden, 98 N. Y., 434; In re Hawley, 100 N. Y., 206.

We are therefore of opinion, upon both grounds, that the decision of the surrogate was right, and that the judgment of the general term should be affirmed, with costs.

All concur, except Finch, J., not voting.  