
    In the Matter of Maria E. Brundage, Resp’t, v. Theresa L. Rust, Executrix of the Last Will and Testament of John P. Rust, Deceased, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    1. Executors and administrators—Accounting—When petition for cannot be maintained against surviving executrix.
    A petition for tlie settlement of the accounts of executors cannot he maintained against a surviving executrix, who never received any of the assets, the same being exclusively managed and controlled by her co-executor and she not having been guilty of negligence or bad faith.
    2. Same—Settlement of accounts—Defense to petition for accounting—Failure to enter order.
    That the petitioner and the deceased executor accounted before the surrogate, the executrix joining therein, and that a full settlement was then made, while said executor was solvent, which settlement had been for' many years acquiesced in, and that by a stipulation in writing then made between the accounting parties, an o:der was to he entered approving the account, though such order was never entered, is a good defense to such a petition. The fact that such account was not approved and passed hy the surrogate is not material.
    Appeal from an order of the surrogate’s court of Kings-county sustaining a demurrer to the sufficiency of an answer.
    On the 29th of September, 1872, John P. Rust died at the city of Brooklyn, leaving a last will and testament with a codicil thereto, disposing of his real and personal estate. The will and codicil were duly admitted to probate-in Kings county on the 21st of October, 1872, and in and by said instrument the said Theresa L. Rust (his widow, and mother of the respondent) and Rodolphus B. Johnson and Edward McKenzie were appointed executors and executrix thereof.
    Theresa L. Rust and Rodolphus B. Johnson qualified as executrix and executor, but Edward McKenzie refused so to do.
    Thereafter Rodolphus B. Johnson had sole charge of the said estate and of the money, assets and property thereof, and assumed and exercised solely and exclusively the entire management and control thereof as such executor, 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. Rust-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.
    On the 27th of January, 1877, five years after the death of the testator, at the request of Johnson, and for the purpose of having the estate settled up and finally disposed of, Theresa L. Rust having no knowledge whatever 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, and such petition having been filed on the 8th of February, 1877, an order for a citation to all parties entitled thereto, including the respondent, was duly made on the same day, and on the 5th day of March, 1877, said citation was duly returned with proof of service thereof on all the parties aforesaid, who duly appeared before the surrogate, and the proceedings were then and thereafter duly adjourned from time to time until the 19th day of March, 1877, when the said Rodolphus 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. Rust duly made and filed an affidavit with said surrogate, showing that Johnson had sole charge of said estate and assets, and having no knowledge of the said 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 the 23d day of March, 1877.
    On said last mentioned day, the said Theresa L. Rust (the appellant), united with the said Maria E. Brundage-. (the respondent), and Jennie Gf. Mathez, in written objections to said account and certain matters therein specified, which objections were then and there duly filed, and the proceedings adjourned until the month of June, 1877;, when all the heirs and next of kin of the said John P. Rust, and the devisees and legatees under said will and codicil, including the said Maria E. Brundage and the said Theresa L.. Rust, and the said Rodolphus B. Johston, as executor as: aforesaid, having in the meantime accounted together of and concerning the administration of said estate by the said Johnson, including the said final account, filed as aforesaid, 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 in writing, in said proceeding, that the final account aforesaid, rendered to the surrogate by the said Rodolphus 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. That the said Theresa L. Rust, having no knowledge whatever, on the subject, and only such information as was communicated to her by the said Maria E. Brundage and her attorney, was 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 such proceeding with said surrogate, and said proceeding was then and there ended and determined.
    Theresa L. Rust, has not now and never had, for the reasons aforesaid, any knowledge or information of the affairs of the estate, which would enable or have enabled her to file any account whatever.
    At the time of the accounting and settlement, Rodolphus B. Johnson was a solvent and responsible man, pecuniarily able to respond and pay all his liabilities (if any) incurred to said estate, as executor or otherwise,-but subsequently, and after said accounting and settlement, and the filing of said agreement and stipulations, he became insolvent and died.
    At the expiration of ten years after this agreement, which in the meantime remained undisturbed and unquestioned, to wit: In October, 1887, Maria E. Brundage petitioned the surrogate of the county of Kings that Theresa L. Rust, as executrix,' render and settle an account of the affairs of said estate, and that she be compelled to file a bond for the performance of her duty as executrix or be removed.
    On the return of a citation issued by the surrogate on this petition, in accordance with the prayer thereof, Theresa L. Rust appeared and answered as above, whereupon the petitioner demurred to the sufficiency of said answer, which demurrer the surrogate sustained, and directed appellant to render and file an account as executrix of the said John P. Rust, on or before the 10th day of April, 1888, and from that order this appeal is taken.
    
      James and Thomas H. Troy, for app’lt; Richard B. Greenwood, Jr. (Walter L. Livingston, of counsel), for resp’t.
   Pratt, J.

The answer of the defendant herein, which is admitted by the demurrer, sets forth two good defenses to the claim of the petitioner, to wit: First, 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, or Rodolphus B. Johnson; and second, 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 defenses fully met the allegations of the petitioner, so far as this petition is concerned. There is no statemént 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.

All concur.  