
    MATTER OF RUST.
    
      N. Y. Supreme Court, General Term, Second Department;
    
    
      December, 1888.
    1. Executors and administrators; accounting.] It is a sufficient answer tó a petition praying that an executrix account, that she never assumed or exercised any control of the estate or received any of the assets thereof as executrix, but that the same were exclusively managed and controlled by-her co-executor; and that a full settlement has been had with the petitioner and such settlement executed and a final accounting had in the surrogate’s court.
    2. Same.] The petitioner’s own solicitation in obtaining the executrix’s consent and joinder in the accounts, as filed by her co-executor, is a sufficient ground to refuse an accounting, especially where the co-executor was pecuniarily responsible at the accounting and afterwards died insolvent.
    Appeal from an order of the surrogate of Kings County declaring an answer interposed by an executrix to a petition for an accounting, insufficient, and directing an accounting.
    Maria E. Brundage, one of the beneficiaries under the will tif John P. Rust, deceased, brought this proceeding against Theresa L. Rust, executrix, etc., of John P. Rust, deceased, for an accounting.
    The petition of Maria E. Brundage alleged that John P. Bust died in 1872, and shortly thereafter his last will and testament was admitted to probate and letters testamentary were issued to Budolphus B. Johnson and Theresa L. Bust, •executor and executrix respectively under the will; that Budolphus B. Johnson died in 1883 ; that Theresa L. Bust has never rendered an account, nor has any account been rendered by Johnson, and prayed that the executrix render an account.
    The answer of the executrix, after stating the death of the testator, the probate of his will, and the issuance of letters testamentary to herself and Johnson, was as follows: That thereafter the said Budolphus B. Johnson had sole •charge of the said estate and of the money assets and property thereof, and took and assumed and exercised solely and ■exclusively the entire management and control thereof as such executor, as aforesaid, and had and kept and retained .all papers, documents, vouchers and accounts belonging or appertaining to said estate and the business thereof, and received all moneys belonging to said estate, and made, disbursed and paid out all moneys payable thereby, and the .said Theresa L. Bust did not unite or take any part therein, .and was not consulted by the said Johnson in relation thereto, but having full confidence and reliance in his integrity and ability, suffered and permitted him to act and do as aforesaid.
    That on or about January 27, 1877, at the request of' the said Budolphus B. Johnson, and for the purpose of having the said estate settled up and finally disposed of, the isaid Theresa L. Bust, having no knowledge of the accounts or affairs of said estate, as administered by said Johnson, united with him in a petition to the surrogate of the county •of Kings for leave to file a final account, which said petition was duly filed on February 8, 1877, and an order for a citation to all parties entitled thereto was duly made on the •same day, and on March 5, 1877, said citation was returned :io said surrogate with proof of the service thereof on all the parties aforesaid, who duly appeared- before said surrogate and said proceedings were then and thereafter duly adjourned from time to time until March 19, 1877, when-the said Budolphus B. Johnson duly filed a full and final account of all the business and affairs of the said estate, duly verified by him as required by law. Whereupon, the said Theresa L. Best duly made and filed an affidavit with said surrogate, showing that said Budolphns B. Johnson had sole charge of said estate and assets ; and having no knowledge-of the account or the matters and things therein set forth she asked leave from said surrogate to concur or dissent thereto, as on examination thereof she might be advised,, and said proceedings were thereupon adjourned until March 23, 1877.
    That on said last mentioned day the said Theresa L. Bust united with the said Maria L. Brundage and Jennie G. Mathezin written objections, which were then and there duly filed, to said account and certain matters specified therein,, and said proceedings were then and thereafter duly adjourned x from time to time until in or about the month of June,1877, when all .the heirs and next of kin of the said John P. Bust, and the devisees and legatees under said will and codicil, including the said Maria E. Brundage and the said BudolphusB. Johnson, as executors as aforesaid, having in the meantime accounted together of and concerning the administration of said estate by the said Johnson, including the said account and the various items thereof and the matters and-things therein set forth, proper considerations moving them thereto, satisfactorily settled and adjusted the same between-them as such heirs, devisees, legatees, next of kin and executor, and then and there stipulated and agreed that the account aforesaid rendered to the said surrogate as aforesaid by the-said Budolphus B. Johnson as executor, etc., be passed and' approved of by said surrogate, and that an order to that effect be entered in said proceedings, and all objections and exceptions to the said account and the various items thereof were then and thereby withdrawn, and said stipulation and agreement was duly made in writing; and the said Theresa L. Rust, without any knowledge whatever on the subject, and only such information as Avas communicated to her by the said Maria E. Brand age and her attorney, Avas then and there induced by the said Maria E. Brundage, and for her benefit, to unite in said agreement and stipulation, and the same was duly filed in said proceeding Avith said surrogate, and said proceeding was then and there finally duly so ended and determined, and for ten years the same has so remained undisturbed and unquestioned.
    That the said Theresa L. Rust has not noAvand never had for the reason aforesaid, any sufficient knowledge or information of the affairs of the said estate which would enable or have enabled her to file any account thereof, and should not noAV be called upon or required to answer in relation thereto.
    That at the time of said accounting and settlement the-said Rudolphus B. Johnson was solvent and pecuniarily able to respond and pay all his liabilities (if any) incurred to said estate as such executor as aforesaid, or otherwise, but that subsequently, and after said accounting and settlement, and the filing of said agreement and stipulation with the said surrogate, as aforesaid, the said Johnson became insolvent, and died so.
    Wherefore, she prays that said petition be dismissed.
    Appended to the answer and made a part thereof weretlie various 'proceedings had in the surrogate’s court.
    The petitioner objected to the ansAver interposed by the executrix on the ground of insufficiency, and the objections came on to be heard by Hon. Abraham Lott, surrogate, who held that the answer was insufficient and directed the executrix to account. The surrogate rendered the following opinion:
    
      “ The answer of Theresa L. Rust, executrix of John P. Rust, deceased, to the petition for an account of her proceedings, is that her co-executor, Johnson, some ten years ago, filed an account of his proceedings as executor, and that thereafter she and the petitioner, with others interested, signed a stipulation that said Johnson’s accounts be passed.
    “It is not alleged that the respondent has ever accounted. It is true she says that when Johnson’s account was filed she made affidavit that said Johnson had sole charge of said estate and assets, and that she had no knowledge of the said account. I am of the opinion that this does not preclude the petitioner’s right to have the respondent account. The petitioner is, I think, entitled to such account and to have any objections she may file thereto passed upon. It is inferrable from the answer that the account filed was Johnson’s account and not the respondent’s, and what is alleged in the answer respecting Johnson’s subsequent insolvency does not appear to me to raise any equitable reason for the respondent’s failure to account for any assets which may have come into her hands. If she received no assets of the estate she can so state in her account. The most that can be said is that the matter referred to might excuse the respondent from pursuing Johnson or his estate for any property in his hands.
    “ The demurrer to the respondent’s answer is sustained and the respondent required to file an account of her proceedings.”
    From the order and decree of the surrogate the executrix appealed to the General Term.-’
   Pratt, J.

The answer of the defendant' herein, which is admitted by the demurrer, sets forth two good defences to the claim of the petitioner, to wit: 1st. That she never assumed or exercised any control over the estate of John P-. Rust or received any of the assets thereof as executrix, but that the same was exclusively managed and controlled by her co-executor, Rudolph us B. Johnson, and, 2d, That a full settlement has been had with the' petitioner and such settlement executed and a final accounting had in the surrogate’s court.

These defences fully met the allegations of the petitioner so far as this petition is concerned. There is no statement in the petition of negligence or bad. faith on the part of the -defendant, and no claim that any funds have come into her hands since said settlement.

It would be manifestly unjust to hold the defendant responsible because she consented to or joined in the accounts as filed by her co-executor, as she was induced to take that course at the solicitation of the petitioner, and the more so as it is admitted that the co-executor was pecuniarily responsible at the accounting and afterwards died insolvent.

The fact that such account was not approved and passed by the surrogate is not material. The parties to the accounting consented to the entry of such an order, and this was as binding upon such parties as if the order had been entered.

The parties have acted upon the faith of these proceedings for a long time and are estopped from now questioning .their validity as against each other.

It follows that the order must be reversed

Babuabd, P. J., and Dtkman, J., concurred.  