
    Mary Cluff, etc., App’lt, v. Henry S. Day et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed April 9, 1888.)
    
    1. Executor and trustee—Surety on executor’s bond—When hable— Burden of proof.
    The defendants became sureties on the official bond of one Tower, as executor. By said bond they bound themselves that Tower should faithfully execute the trust reposed in him. as executor of the.last will, etc., and obey all orders of the surrogate touching the administration of the estate committed to him. Meld, that defendants were not sureties for Tower as trustee; that they could he held liable only for his default as executor; that the burden of showing that the default in question occurred while said Tower was executor, rested with the plaintiff.
    2. Same—Judicial investigation oe testamentary trustee—When allowed.
    
      Meld, that there could be no judicial investigation of his misconduct as. trustee under the will without he had ceased to be executor.
    This is an appeal from a judgment entered on the trial of an action before the court at special term, without a jury.
    
      Robert Owen and Burnett & Whitney, for app’lt; Charles E. Wilson and Isaac Fromme, for resp’t.
   Truax, J.

The complaint alleges that the plaintiff is the widow of one Burgess Cluff, deceased; that said Cluff died on or about March 12, 1871, leaving him surviving this plaintiff and their two children; that said Cluff left a will which was duly admitted to probate by the surrogate of the county of New York; that letters testamentary were duly issued by the surrogate of said county to one Edward E. Tower, on or about the 12th day of April, 1871; that the defendants together with said Tower, executed, acknowledged and delivered to the surrogate of said county an official bond; that said Tower has failed to account for all the money he received as such executor, and that the estate of the deceased has thereby been injured by him to the extent of $10,906.02, with interest thereon from September 30, 1886; that payment of such has been demanded from said Tower and the defendants, but that no part thereof has been paid; that no successor has been appointed to said Tower as such executor, under said will, and that plaintiff has been duly authorized by the surrogate to maintain an action on the official bond given as aforesaid, by said Tower, pursuant to section 2609 of the Code of Civil Procecure.

The defendants bound themselves that the above named Tower should faithfully execute the trust reposed in him as executor of the last will and testament of said Cluff, and obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to him, and they cannot be held on this bond, unless it has been shown that said Tower has failed to faithfully execute the trust reposed in him as executor of the said last will, touching the administration of the estate committed to him.

The appellant claims that this has been shown by the decree made, in the surrogate’s court on the 30th day of September, 1886. While the defendants claim that said Tower was discharged as executor by a decree which was entered in the said surrogate’s court on the 26th day of November, 1873

Said Tower was appointed executor and trustee by the said last will and testament of said Cluff, and, by the said decree of November, 1873, it was ordered, adjudged and decreed that the accounts of said Tower be finally settled and allowed as filed and adjusted, and, it appearing that there was in the hands of said executor the sum of $12.-222.98, it was ordered and adjudged that the said executor retain invest, and keep invested, the balance remaining in his hands after making the payments which were ordered to be made by said decree accruing to the trusts and provisions contained in said last will and testament. By a subsequent decree this amount was reduced to the sum of $10,906.02. It was adjudged by the decree of September, 1886, that the said Tower had never made any proper investment of said trust fund, but that he had wasted, improperly applied and improvidently managed the same, and that he has, without good cause, neglected to obey the direction of the surrogate concerning the investment of said trust fund, contained in said decree of November 26, 1873.

I cannot find it stated anywhere in the case whether said Tower “ did or did not have in his hands/’ at the time of the making of the decree of 1873, the whole or any part of the funds of the estate. In other words, it does not appear that he, as executor, has failed to faithfully execute the trust reposed in him as executor, or to obey any orders of the surrogate of the county of New York; including the administration of the estate committed to him. The defendants, Day and Thompson, were not sureties for Tower as trustee. They could be held hable only for his default as executor. The burden of showing that the default occurred while said Tower was executor rests with the plaintiff. This the plaintiff has failed to show. And for this reason, and for the further reasons assigned by the chief judge in his opinion, delivered on the trial of the case, I am of opinion that the judgment appealed from should be affirmed, with costs.

Dugro, J., concurs.

The following is the opinion at special term.

Sedgwick, Oh. J.—My conclusions are as follows: No action lies against the defendant for any disobedience by the executor as executor, of the decree of 1873.

That decree adjudged that, as executor, he had acted properly By a proper construction of all the terms of the decree of 1886, in connection with the petition upon which it was made, and the past and the existing facts, that decree was against Tower as trustee, and not as executor, and the sureties are not liable for disobedience of that decree. I do not see how there could be a judicial investigation of his misconduct as trustee under the will, without he had ceased to be executor.

The complaint is to be dismissed, with costs, and no allowance.  