
    George Cocks et al., Resp’ts, v. Phebe C. Haviland, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    1. Executors and administrators. — Liability for default of co-executors.
    Defendant was one of several executors, but took no active part in the management of the estate. She had knowledge of the neglect of the acting executors to make investments directed by the will to be made, and with such knowledge accepted her share of the estate, but took no steps to compel such investments to be made. Meld, such a neglect of duty as; to render her liable for the consequences, although she was otherwise not in fault.
    3. Same.—Limitation.
    An action by legatees to recover from such executor their share of the estate lost by such neglect of duty is one where the cause of action accrues at the settlement of such executor’s account.
    Appeal from interlocutory judgment, directing defendant to account for and pay over to plaintiffs one-fifth of the residuary estate of John Cocks, and appointing a referee to take and state an account.
    Defendant was one of seven executors named in the will of said John Cocks, all of whom qualified, but the- active management was left to two, who are now insolvent. The will directed .the investment on bond and mortgage upon lands in Westchester county of such sum as should yield a net income of $1,000 per year, which should, be paid to his widow. It also provided for the investment of one-fifth of the residuary estate for the benefit of testator’s son, David, during his life, and that at his death such share should go to his children, these plaintiffs, share and share alike. The executors invested $10,000 in mortgages on western lands at ten per cent., which proved inadequate to pay the annuity to the widow, and made no investment of the one-fifth share of the residuary estate except as regards a mortgage for $1,500.
    In 1887 defendant accounted as executrix, and her accounts were judicially séttled by a decree in November, 1887, which directed the arrears of the annuity to be paid by the acting executors.
    A proceeding was afterwards begun by these plaintiffs against defendant and others, in which a decree was entered in June, 1889, which held that neither the said Adelia Cocks, nor said Daniel E., or Phebe C. Haviland, ever had the possession or control or management of the share of the estate so claimed by plaintiffs in this action, but the same was received, managed and controlled solely by the executors, etc., George J. Barlow and Mary, his wife, and Harrison Cocks; by whom the same was misappropriated and lost, without the consent, negligence or knowledge of said Adelia Cocks, Daniel E. Haviland, Phebe C. Haviland, or either of them, and
    That the application in that matter, so far as it seeks to charge the said Phebe C. Haviland, as executor and trustee, beyond that determined by the decree, which was made and entered in this matter on the 18th day of November, 1887, with any liability to account for said share of said children be, and the same was, thereby denied.
    
      Thomas Nelson, for app’lt; Daniel 6r. Rollins {Thomas Harland, of counsel), for resp’ts.
   Barnard, P. J.

By the will of John Cocks, one-fifth of the residue of his estate was directed to be invested by the executors of the will upon bond and mortgage, and the income thereof paid to David Cocks during his life. After the death of David Cocks, this share was given to the children of David Cocks equally.

There were seven executors named in the will, and all qualified.

The estate was quite large, and the active management of the estate was left to the testator’s son, Harrison Cocks, and to George J. Barlow, son-in-law of the testator.

The executors did not execute the will in respect to an investment for the widow.

The will directed an investment of a sum1 sufficient to produce $1,000 yearly for the widow, and this was to be on lands in "Westchester county.

The executors actually invested '$10,000, at ten per cent, in Wisconsin, for this purpose.

The investment for the children of David Cocks, beyond the • sum of $1,500, was never made at all.

The two active executors failed, and the share of David Cocks, beyond the $1,500, is wholly lost.

The appellant, Mrs. Haviland, has received over $20,000 for her share of the estate. Is she liable to the children of David for their one-fourth of the estate ?

Two principles are firmly established by the court of appeals in respect to the liability of executors for the default of a co-executor.

One class of cases holds that an executor is not responsible for the negligence of another executor, unless he aided or concurred therein.

Another class of cases holds that where a trust is committed to more than one executor and the whole management is left to one, the non-active executors are liable for a neglect of duty. Remington v. Walker, 99 N. Y., 626; Earle v. Earle, 93 id., 104; Wilmerding v. McKesson, 103 id., 329; 3 N. Y. State Rep., 108.

In. this case the evidence shows neglect of duty, equally resting on all the executors.

The appellant knew the neglect of duty in respect to the widow’s investments, and took no steps to compel a performance of the trust.

She took no steps to compel an investment of the share of David’s children.

She took her own share of the estate, after she knew of the non-execution of the trust

This was such a neglect of duty as subjects her to liability, although she otherwise is not in fault

The surrogate’s decree of November, 1887, reserves the rights of the present plaintiffs against the appellant as executrix.

The application by the plaintiffs subsequently made to open this decree was denied.

The subsequent decree in June, 1889, did not discharge the appellant as one of the executors of John Cocks, deceased.

The case is one where the cause of action accrued at the settlement of the executor’s account judicially. Code, § 1819. This was settled in November, 1887.

This action was commenced in 1889.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs.  