
    In re MITCHELL et al.
    (Supreme Court, Appellate Division, Third Department.
    January 17, 1899.)
    1. Executors—Accounting—Burden of Proof.
    An owner of stock placed it with an agent for sale. Part of it was sold, and other stock purchased and delivered to the owner, who subsequently died, leaving a will, of which the agent was an executor. On an accounting he was shown to have been in possession of the stock at decedent’s death. Held, that the burden was on contestants to show that the possession was obtained under such circumstances as created an indebtedness to deceased.
    2. Same.
    An executor who received stock of decedent, prior to her death, for sale as her agent, is liable to account to her estate therefor, unless he affirmatively shows that he accounted to her.
    3. Same—Conversion—What Constitutes.
    Where an executor sells stock of decedent, after her, death, which was placed with him for sale in decedent’s lifetime, without any authority as executor to so sell, it is a conversion.
    Appeal from surrogate’s court, Sullivan county.
    Judicial settlement of the accounts of James T. Mitchell and others, as executors of the will of Hannah Hammond, deceased. From a decree of the surrogate surcharging the account of John B. Boosa as such executor, he appeals.
    Modified.
    Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.
    
      T. F. Bush, for appellant, John B. Boosa.
    Charles F. Cossum, for respondent objecting legatees.
   PARKER, P. J.

Mrs. Hammond died in Monticello, in August,. 1895. The appellant, Boosa, was one of the executors of her will. In proceedings for a judicial settlement of his accounts before the surrogate of Sullivan county certain legatees sought to surcharge the accounts, as presented, by certain amounts which they claimed Boosa should account for because of having held in his custody for collection certain securities belonging to the deceased, and which he had appropriated to his own use. The deceased was an old lady, the aunt of the appellant, Boosa, and had resided in his family for several years prior to her death. She had no children living when she died, and she died at his house. Boosa was a large dealer in stocks, and, as he testified, sold some of her stocks at her request and purchased others with the proceeds thereof. She had quite a number of securities, certificates of stock,' etc., which she kept together in a bundle tied up in brown paper; and Boosa deposited them for her in the vault in the bank in that village, sealed with his seal. He, however, testified that he never opened it except in her presence; that when anything was taken from it he took the bundle from the bank to’ hér, and whatever was taken out was in her presence. Some time prior to December 3, 1889, she put into his custody, to sell for her, the following securities: 15 United States bonds of the par value of $19,000, 5 Delaware & Hudson Canal Company bonds of the par value of $5,000, 4 Chicago, Milwaukee & St. Paul Bailroad Company bonds, par value, $4,000. All of these were sold by Boosa through his brokers in Hew Fork City,, and each transaction was credited in Ms name. The contestants sought to charge Boosa with all these securities, but the surrogate held him upon the following only: Hine of the government bonds were sold in December, 1889, and from the proceeds 100 shares of Hew York Central stock were purchased, and a check for the balance, $401.25, was received by Boosa. The surrogate held that Boosa was liable on this accounting for the amount of that check. In May, 1890, such 100 shares were sold, and with the proceeds 100 shares of Union Pacific stock and Í00 shares of Ontario & Western stock were purchased, and a check for $2,087.50 for the balance was received by Boosa. For the value of such shares and the amount of that check the surrogate has held that Boosa was liable on this accounting. In. January, 1891, there were sold the 5 Delaware & Hudson Canal Company bonds, and from the proceeds 100 shares of Union Pacific stock were purchased, and Boosa received for the balance a check for $800. The surrogate held that Boosa was liable upon this accounting for the value of such 100 shares of stock, but did not hold him for the $800 check. As to the rest of the securities so placed in Ms hands for sale, as above stated, the surrogate held that Boosa was not liable for the same, and, no appeal having been taken from that decision, no question concerning them is now before us.

It is to be noticed that the receipt of these securities was several years prior to the death of Mrs. Hammond, and the surrogate has charged the appellant with the several amounts on the theory that, having received securities to sell for her as her agent, the obligation was upon him to show that he had accounted for and transferred te her all the proceeds thereof; that, Eoosa having failed to show such a payment or transfer, so far as the items above stated are concerned, he must be deemed to have converted them, and must, therefore, be charged with the highest market value thereof since the conversion. Under section 2731 of the Code of Civil Procedure, it is probable that, if it was shown that Eoosa was a debtor to the estate of the deceased, his accounts as executor could be surcharged with the amount of suck indebtedness. It is also clear that Eoosa received the securities from the proceeds of which it is claimed he received the checks and purchased the ones in question as the agent of the deceased, and that he was liable to account to her therefor. The serious question is whether it does not appear that he had fully accounted to her for the same during her lifetime.

With reference to the 100 shares of Union Pacific procured in May, 1890, Eoosa testified that he delivered it to Mrs. Hammond, and that for a time thereafter it was kept with her other securities. It was assigned in blank, so that his indorsement thereon was not necessary to give her the full control of it. Subsequently it came again into his possession, and he seems to have held it at the time of her death, and he testified that he then owned it. Under what arrangement it so came into his possession does not appear, except that in answer to an inquiry put by the counsel for the respondents he testified that he did not pay her anything for it. His evidence shows that he received it from her some time before her death, and that he had personally paid several assessments against the same, but under what arrangement or circumstances he did receive it he was prohibited from testifying, under the objection of the respondents that it was not admissible under section 829 of the Code of Civil Procedure. Without deciding whether such exclusion was or was not correct, I am of the opinion that it sufficiently appears that his liability, as an agent, for such stock, ceased when he delivered it to her, and that the burden was upon the contestants to show that his subsequent possession thereof was under such circumstances as created an indebtedness to her for the same. It does not follow that, because he received it from her without paying for it, he received it as her agent. It may have been a gift, as he claims, but to which he was not allowed to testify. I do not think that the mere possession of this certificate at the time of her death imposed upon him the burden of showing that he did not receive it as her agent, or that he was not indebted to her for it. There was no general and continuing agency to sell shown, sufficient to raise the presumption that he so held this certificate; and I therefore conclude that it was error to surcharge his account with this item.

As to the other 100 shares of Union Pacific, Eoosa received them in January, 1891, but it is clear that he soon after delivered them over to the deceased. The surrogate so finds at folio 353. That closed that transaction. But subsequently she put them into his custody to sell whenever he should sell his own Union Pacific stock, and they were so in her custody at the time of her death. About three months after her death, viz. November 26, 1895, having concluded to sell his own, as the stock was constantly depreciating in value, he sold these 100 shares, and received $837.50 therefor. At that time his agency had ceased, owing to Mrs. Hammond’s death. • He had authority, as executor, to care for such stock, but not to sell it, as letters testamentary had not then been issued to him. Code Civ. Proc. § 2613. The amount received on such sale was placed to his own credit, and used by himself, and when he came to make up the inventory of the estate of the deceased the stock and amount so received were omitted therefrom. Such stock was plainly assets of the estate, and although probably no conversion of the same was intended, yet such conduct did constitute a conversion, for which Eoosa became liable. The conversion, however, did not occur until the sale was made; and the highest market value of this stock subsequent to that date, so far as the evidence discloses, was $11.50 a share. The charge against Eoosa on account of these shares should therefore be estimated at that figure,'instead of $15.75 per share, as fixed by the surrogate.

As to the 100 shares of Ontario & Western stock, they were not found among the deceased’s securities at the time of her death, and there is no evidence what Eoosa did do with them. He claimed that he turned them over to her with the Union Pacific stock, but he was not allowed to so testify. The question is therefore presented whether, having concededly received, five years before her death, as her agent, the shares in question, as her property, he is liable to account to her estate therefor, unless he shows affirmatively that he has already accounted, to her for the same. It is clear that he was liable to account for and pay over to Mrs. Hammond such property and all its proceeds, and that the right to demand such an accounting would, upon her decease, pass to her executors. If she herself had, five years after the receipt of this stock by Eoosa, demanded that he account for and pay over the same to her, and had proved that it came into Ms possession in the same way that he is shown to have acquired it in this case, the burden would have rested upon Mm to prove that he had already transferred the same to her. Upon what theory can it ¡be claimed that such burden is not still upon him, although the demand is' made by those lawfully representing her, instead of by herself? The lapse of time raises no presumption in his favor; and her death, although it makes the burden of proof much more onerous, for the reason that he cannot himself testify, cannot change the rule. So far as appears, Eoosa has alone had the use of that stock, and the surrogate was correct in holding him for it.

As to the two checks, one for $401.25 and the other for $2,087.50, eoncededly they represent money received by him on the sale of Mrs. Hammond’s property. They were payable to his order, and have been paid by the drawer. There is no evidence that Mrs. Hammond has ever received the checks, or the money due on them. ■ Eoosa has failed to make that proof, and, for the reasons given above with reference to the Ontario & Western stock, the surrogate was correct in charging Mm with their amounts.

My conclusion is that the decree of the surrogate should be modified by striking out therefrom the charge against Eoosa of $1,575 for 100 shares of Union Pacific stock received by him May 20, 1890, and allowing as damages for the other 100 shares of such stock the sum of $1,150 only, and that the indebtedness therein adjudged against him should' be diminished by that amount, and, as so modified, affirmed, without costs. All concur.  