
    Cornelia Fay Cline, App’lt, v. David H. Sherman et al., as Executors, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed February 5, 1895.)
    
    Trustees—Liability.
    A trustee is not liable for a trust fund held by his co-trustee, where a. division of such fund, made between them, has been approved by a binding adjudication of the surrogate’s court.
    Appeal from a judgment of the general term of the supreme court in the second judicial department, entered upon an order which amended a judgment in favor of, defendants entered upon a decision of the court on trial at special term.
    This action is brought by the plaintiff, a granddaughter of one Walter Sherman, deceased, to compel defendants, as executor's and trustees under his will, to account for a trust fund to. which, the plaintiff was entitled under her grandfather’s will upon attaining her majority.
    The judgment was in favor of the defendant David H. Sherman, on the ground that he was not responsible, upon the facts appearing, for the acts of the other defendant, who was also a trustee and in whose custody the $10,000 trust fund was placed.
    The following is the fourth clause of the will under which the-trust fund was created :
    “ Fourth." I give and bequeath to each of my four grandchildren, Walter A. Sherman, Jr., Mary 0. Sherman, Cornelia. Fay Sherman and David H. Sherman, Jr., the sum of $10,000 apiece, to be set apart for each by my executors one year after my decease, and to be invested and re-invested safely by my executors-with the accumulated interest until each.of my said grandchildren severally shall become of age; and I order and direct my said executors to pay over said sum, with its.accumulations, to each of my said grandchildren respectively, as be or she reaches the age of twenty-one years. If any of my grandchildren shall die before reaching the age of twenty-one years, leaving issue, such issue shall thereupon take the sum so given hereby to the parent; but should any-so die without issue before twenty-one the said sum or sums, with the accumulations, shall revert to my general estate.”
    The defendants were made executors by the seventh clause of the will. They were sons of the testator, and each had two children, the four.being-the beneficiaries named in the above fourth clause of the will. The executors subsequently duly presented their petition for a final accounting as executors, and in the account, as presented by them, the following statement was made after acknowledging the receipt by them of the assets of the testator:
    “ From the amount thereof we have set apart the sum of $40,-000, and adding from our own funds the amount of premiums, we have purchased and now hold $10,000 in United States four peícent. bonds, registered in the name of- David H. Sherman, trustee of Walter A. Sherman; $10,000 in like bonds, registered in the name of David H. Sherman, trustee for Mary C. Sherman ; $10,-000 in like bonds, registered in the name of Samuel W. Sherman,, trustee for Cornelia Fay Sherman, and $10,000 in like bonds,, registered in the name of Samuel W. Sherman, trustee for David H. Sherman, Jr., all of said bonds being here set down at their face value.”
    Everybody interested was duly cited and appeared on the accounting ; the plaintiff, at that time an infant, appeared by her guardian ad litem.
    
    The court on this trial finds that the defendant “David H. Sherman retained in his hands and custody from the property of the estate the sum of twenty thousand ($20,000) dollars, by which the ‘fourth ’ clause of said will was set apart for Walter A. Sherman, and Mary 0. Sherman, and that Samuel W. Sherman retained from the property of the estate the sum of twenty thousand'-($20,000) dollars, which was set apart for the plaintiff, Cornelia. Fay Sherman, and David H. Sherman, Jr., and that he invested $10,000 of the same in United States bonds, registered in the name of Samuel W. Sherman, trustee for Cornelia Fay Sherman, the plain tiff. ”
    Each executor thus retained in his character of trustee that portion of the trust fund applicable to his own children. The surrogate, after the presentation of the account and the appearance of all interested and no one opposing, entered a decree, approving of the action of the executors in these words: “And it appearing by said accounts so signed and verified by said executors, and by • proof now made before the surrogate, that the said David H. Sherman and Samuel W. Sherman are the sole heirs at law and next of kin of said deceased, and also the only residuary legatees under said will, and that they have equally and fairly divided the remainder of said estate between themselves as such legatees, after paying all the specific legacies given by said will, and establishing the four trusts of ten thousand dollars each, provided for therein, the said David H. Sherman and Samuel W. Sherman are, and each of them is, hereby released and discharged from all and every liability, as well to each other as to others, as executors, as aforesaid, or otherwise for or on account of all moneys or property received or disbursed by them for or on account of the estate of the said Walter Sherman, deceased, and all the transactions and proceedings of the said executors are hereby approved, ratified and confirmed.”
    
      
      Milton A. Fowler, for app’lt; Ira D. Warren, for resp’t.
    
      
      Affirming, 61 St. Rep. 696.,
    
   Peckhah, J.

The language of the will of Walter Sherman made the executors trustees of the fund of forty thousand dollars provided for in the fourth clause of the will. This fund came into their possession in the iirst place in their character as executors, ior the purpose of being disposed of as the will directed. They in due time sought to end their duties and liabilities as executors, And to that end applied for a final accounting as such. In the accounts whicli they presented they showed in effect that they had taken the trust fund and divided it by distributing one-half to each of the executors in their character as trustees under the above mentioned fourth clause. This account so presented showed that they had paid as executors to themselves as trustees under the will the Amount of the trust fund in the way stated. Thus, in assumed •compliance with the will, this distribution of the estate was made ■by the executors, and the question for the surrogate to decide was whether such payment and distribution were right. It may or may not have been right, but the surrogate had the power to •decide in regard to it by virtue of his power to decree a distribution of the estate of the testator according to the terms of the will, including the trust fund. Everybody interested in the estate was before the surrogate, and with all the facts before him he approved •of this distribution and decreed accordingly. From that time the •executors were discharged and they held the trust fund as trustees under a decree which approved of and substantially directed this separation. The surrogate had jurisdiction to make such a direction and decree such a distribution even though it may have been erroneous. No appeal was taken from the decree, and now, after twelve years of acquiescence in all of its provisions, one of the •children of one of the trustees desires to make.the other trustee liable for the misconduct of his original co-trustee in relation to the fund in the possession of such co-trustee. I do not think the liability remained after the decree providing for and approving of the distribution was made. It would also seem to be going a long way in advance of any decision we have heretofore made to hold such a trustee liable for the waste of that part of a trust fund which under these circumstances had been placed in the physical possession and control of one of his colleagues by the direction and approval of the surrogate and where no negligence was shown ■on the part of the trustee who was sought to be made liable other than an acquiescence in the decision of the surrogate decreeing and approving of such separation of the funds.

We think the decision was right and it should be affirmed, with ■costs.

All concur, except Bartlett, J., not voting.

Judgment affirmed.  