
    Matter of the Estate of Terence A. McCauley, Deceased, otherwise known as Thomas A. McCauley.
    (Surrogate’s Court, New York County,
    January, 1906.)
    Executors and administrators—Administration in general — Jurisdiction, to compel account by foreign representative: Distribution of estate — Computation of share of representative.
    Former adjudication — Who are concluded — Heirs and personal representatives: What matters are concluded—Receipt of assets by-representative not lawfully administered by him.
    In the absence of an application by a foreign executor for ancillary letters in this State, or his consent to the appointment of any person by a Surrogate’s Court therein as ancillary administrator or administrator with the will annexed of the estate of his testator, to whom letters of administration had been granted in this State upon the estate of his deceased brother, the court is without power to appoint any person to represent the estate of said deceased brother or to procure or state any account of the deceased administrator.
    Where it is shown that an administrator has wrongfully converted $5,000 of the assets of the estate of his decedent, no presumption arises that he has not made away with more and, in every case before any inference may be indulged in his favor, an accounting must be rendered of his administration.
    The sole asset of an estate received by an administrator de "bonis non was the amount collected by action of the surety upon the bond of a brother of decedent as administrator of his estate to make good the default and conversion by the administrator of $5,000 of funds of the estate. The administrator died a resident of another State and neither he nor his executor accounted ire this State for his acts as administrator and his executor refused to apply for ancillary letters in this State or to consent to the appointment of an ancillary administrator or administrator with the will annexed who could be compelled to render an account for the deceased unfaithful administrator. Upon the accounting of the administrator de bonis non there was no affirmative evidence that the deceased administrator did not collect other assets. It was thereupon held:
    There was no presumption that there were not further assets received by the deceased administrator than those for which the recovery was had.
    Upon the holder of a claim of one-fourth of the property in the hands of the administrator de bonis non, under an assignment by the foreign executor of the share or interest of the deceased unfaithful administrator in the estate of the decedent, devolved the burden of proving that no property in excess of the $5,000 was received by the deceased administrator.
    The foreign executor having had notice of the action which resulted in the collection of the $5,000 and having also selected the counsel representing the surety as defendant therein, the estate of the deceased administrator was bound by the judgment rendered in said action, the legal effect of which was to determine that he had received assets of the estate which he had not lawfully administered to the full amount of the bond given by •the surety.
    Said judgment was a final and conclusive adjudication against the assignee of the foreign executor that the amount charged the •surety of the deceased administrator was not greater than the amount which the surrogate would properly require the estate ■of the deceased administrator to pay to persons other than him7 self, after a due accounting before the surrogate of his administration of his brother’s estate.
    Proceeding upon the accounting of an administrator de ■ionis non.
    
    Wm. P. Maloney, attorney for administrator de bonis non.
    
    D. J. M. O’Callaghan, attorney for D. J. McCauley, contestant.
    Dennis Quinn, referee.
    Chas. H. Haubert, for W. V. Burke et al.
   Thomas, S.

The moneys which constitute the sole asset •of the estate of the decedent received by the administrator ■de bonis non, who is now accounting, were collected in an .action in the Supreme Court brought by him against the American Surety Company, as the surety on the bond of Daniel McCauley, given on the issuance of letters of administration out of this court to said Daniel McCauley, in May, 1894. Daniel McCauley was a brother of the decedént and ;a resident of the State of Massachusetts. He collected $5,000 on a sale of two patent rights belonging to the estate of the decedent, and died in 1898. ¡No affirmative evidence has been furnished that he did not collect other assets, and neither he nor any representative of his estate has ever accounted in this State for his acts and doings as administrator. He left a will, which was proved in Massachusetts, but the executor who qualified under that will has steadfastly refused to apply for ancillary letters in this State, or to consent to the appointment of any person by this court as ancillary administrator or administrator with the will annexed of the estate of Daniel McCauley, deceased, who could be compelled to render an account of all the acts of Daniel McCauley as administrator of Terence A. McCauley. In the absence of such application or consent this court is without power to appoint any person to represent the estate of Daniel McCauley, deceased, or to procure or state any account of said Daniel McCauley as administrator. Baldwin v. Rice, 100 App. Div. 241, affd., 183 N. Y. 55.

The Massachusetts executor of Daniel McCauley has executed an assignment of the share or interest which Daniel McCauley had in the estate of the decedent, being one-fourth part thereof, to Daniel J. McCauley, who appears in this proceeding demanding one-fourth of the property in the hands of the administrator de bonis non, together with other sums of money, and makes objections to some of his disbursements.

It would seem to be clear that the estate of Daniel Mc-Cauley has no interest in the moneys paid by the surety of Daniel McCauley to make good the default and conversion by Daniel McCauley of funds of the estate of his deceased brother, the decedent in this proceeding, unless we are satisfied by proof or necessary legal inference that Daniel Mc-Cauley did not receive other assets or property of the estate of the decedent sufficient to cancel all his claims as a next of kin, and for money properly disbursed in due course of administration. There is no natural presumption that an administrator, who is shown to have wrongful];,-converted $5,000 of the assets of the estate of his decedent, has not made away with more, and the rule of general appliestion to all trustees, that an accounting is to be rendered in every case before any inference in their favor can be indulged, has, in this case, a proper and reasonable application. In the present proceeding the representative of the deceased unfaithful administrator is seeking affirmative relief ; a fact which is necessary and vital to his cause of action is that no property in excess of the sum collected from the surety was received by the administrator; the accounting whieh would establish that fact, if it is- true, could be had at the instance of the assignor of the claimant, and such accounting, though requested, is resisted and refused. Under such circumstances, at least, no legal presumption in his favor can be indulged which can save him from bearing the burden of proving every fact necessary to establish his claim, though this involves the necessity of proving a negative.

The Massachusetts executor of the deceased administrator had notice of the action brought in the Supreme Court, and the surety was represented in that action by counsel selected by such executor. The estate of the deceased administrator is bound by that judgment and the assignee of the Massachusetts executor is also bound by it. The legal effect of ■the judgment is to determine that the deceased administrator had received assets of the estate which he had not lawfully-administered to the full amount of the bond given by the surety. It was competent for the surety to make, in that action, a general accounting of the acts and doings of its. principal, and the complaint tendered it that relief. It could, also have alleged and proved disbursements for funeral expenses and debts, such as are now urged, together with the right of the administrator to pay to himself the amount of, his distributive share. If either of these things had been done, an issue would have been presented as to whether any further collections had been made, and it may be that the failure to make such defense was caused by that fact. However that may be, the judgment is a final and conclusive adjudication against the claimant in this proceeding that the amount charged against the surety of Daniel McCauley, deceased, is not greater than the amount which the surrogate would properly require the estate of Daniel McCauley to pay to persons other than himself, after a due accounting before the surrogate as to his acts and doings in the administration of his brother’s estate.

The resistance of the representative of the estate of the deceased administrator to the just demands of the persons interested in the estate which he had in his charge was unreasonable, and the litigation thereby made necessary against Ms surety was troublesome and expensive. The fees of the attorney for the administrator de bonis non in excess of ■costs collected against the surety, even though they should be fixed on a very moderate basis and at less than was actually paid him, would largely exceed any claim pretended by the assignee of Daniel McCauley’s estate. It is contended that this loss should equitably fall on those who caused it, but I do not think it necessary to determine the question as to whether this has any legal bearing on the issue before me.

The referee’s report is in all respects confirmed. The -costs of the contest will be adjudged against the objeetant. Tax costs and settle decree on notice.

Decreed accordingly.  