
    Margaret J. Wilmerding v. John McKesson.
    
    
      (Court of Appeals,
    
    
      Filed October 12, 1886.)
    
    1. Executors and administrators—Duty or Executor to invest money.
    It is the duty of an executor to see that sums paid in belonging to the estate are invested safely, and draw interest.
    2. Liabilities of co-executors.
    Where funds of the estate are safely invested, and a loss is thereafter occasioned by the wrongful and fraudulent acts of an executor, without the knowledge of his co-executor, and with nothing to excite his suspicion that the other would be guilty of mis-appropriating and wasting the funds of the estate, the co-executor is not responsible for the acts of his associate. He is not a guarantor for the safety of the securities committed to his charge.
    Appeal from judgment of the general term of the supreme court, in the first department.
    
      Stephen P. Nash, for app’lt; Wm. Aden Butler, for resp’t.
    
      
       Reversing 82 Hun, 248, mem-
      
    
   Miller, J.

This action was instituted by /the plaintiff against the defendants for the purpose of making them liable as executors and trustees of the estate of William E. Wilmerding, deceased, who was the father of the plaintiff, and as guardians of his minor children, upon rendering an account of their proceedings, for an alleged loss incurred to the plaintiff’s interest in said estate. Two other persons were named as executors and trustees in the' will in addition to the defendants, one of whom is dead, and the other has taken no part in the administration of the estate.

At the time of the testator’s death he was the senior member of the auction house of Wilmerding & Mount, an old-established firm of high credit and repute, and a considerable portion of his estate was the interest which he had in this firm; which interest was valued, upon the inventory of the executors, at $140,909.14. The survivors of the firm, after the testator’s death; consisting of his three sons and William S. Mount, continued the business under the same firm name. The new firm failed in 1874, and there was a loss to the estate by reason thereof of about $150,000, which was entirely attributable to the fact that, the trust moneys were allowed to be intermingled with the moneys of the firm and used in the business, and thus ex-' posed to its hazards; and also to the fact that the securities of the estate were left under the individual control of the defendant George G. Wilmerding, one of the executors and trustees, who was a half-brother of the plaintiff, and were appropriated by him for the benefit of the firm of Wilmerding & Mount, of which he was a member.

The plaintiff, at the time of the death of the testator, was 12 years old. The complaint alleges that the interest of the plaintiff in her father’s estate was—First, one equal undivided third part of the separate estate of plaintiff’s deceased mother in her father’s possesion; second, a legacy under her father’s will of $10,000, to be invested by the trustees in the same manner as her share of the residuary estate; third, a life-interest in the income of one-thirteenth part of the residuary estate of her father, which, together with the legacy of $10,000 aforesaid, was to be kept invested by the trustees for her benefit, and the income paid to her for fife.

Plaintiff’s right to maintain this action is based upon the ground that her interest was not kept separately invested, so as to be distinguishable, and that the funds of the estate were permitted to be used by the firm of Wilmerding & Mount. The proof upon the trial established, and the judge found, that during the entire administration of the estate, until the failure of Wilmerding & Mount, the executor George G. Wilmerding had the custody and control of the securities belonging to the estate; that he had two tin boxes, in one of which he kept the bonds, mortgages, stocks, and other securities, and in the other the account-books and vouchers for payments; which boxes were kept in'the safe of the firm, and the defendant McKesson had no access to the boxes, or the safe in which they were kept; that he never saw them, except when they were occasionally produced by the defendant Wilmerding at the office of the accountant; that he never examined them, having full faith and confidence in the integrity and fidelity of his co-executor Wilmerding.

Moneys which were realized from the estate in the course of administration were paid to the firm of Wilmerding & Mount under the authority of the executor George G. Wilmerding, and the evidence shows that these moneys were used from time to time, while they remained in the possession of the firm, in the transaction of its business, and that the firm paid interest on said moneys, which was credited, from time to time, on the account books of the estate. This continued down to and including the time of the failure of the firm.

The loss to the estate clearly arose from the unlawful act of George in intermingling its funds with those of the business in which he was engaged, and no question is raised as to his liability. The trial court also found that the defendant McKesson had knowledge at the time he filed his accounts as executor, and afterwards, down to the time of the failure of the firm of Wilmerding & Mount, that the moneys of the estate were, from time to time, received by said firm as depositories or bankers; that cash balances accumulated in their hands, and were left with them, on which they allowed interest; that he co,uld at all times, by inspecting the books kept by the accountant of the estate,, have ascertained the particulars in respect to such balances,, and that he was negligent in not keeping himself informed of the contents of said books, and in allowing said balances, so to remain with said firm; that he was also guilty of negligence, as executor and guardian, in allowing the moneys, of the estate to accumulate in the hands of his co-executor and co-guardian George G. Wilmerding after the first of January, 1870, as securities were paid off in the discharge* of which he took part. The court further found that after the failure of Wilmerding & Mount the total loss to the estate of the testator, as shown by the indebtedness of said firm to the guardians, and to the executor’s accounts, and to the special funds, was, by the direction of the defendant McKesson, ascertained and apportioned ratably upon the-interests of the several beneficiaries, which were still in the hands of the defendants as executors and guardians; and the amount so charged against the plaintiff was, in respect to the property she is entitled to absolutely, $16,177.25, and in respect to the property in which she has an interest for life, $22,686.80, as of the thirty-first day of December, 1874. It was also found that the account between the guardians and trustees and the plaintiff, brought down to October 15, 1880, stood as follows: Amount of principal of life-estate on hand, December 31, 1879, $14,289.19; amount of loss admitted on said life-estate, $22,686.20,—making a total of $36,975.39; also that the amount on hand of the account current was, on January 1, 1880, $6,303.56; amount of loss admitted under term “ contingent,” $16,177.25; interest on $38,863.45, on aggregate of losses from January 1, 1875, to January 1, 1880, $12,653.94;. payments since January 1, 1880, deducted, $964.64;, interest from January 1, 1880, to October 15, 1880, on $71,-145.50, $2,816.67,—making a total of $36,986.78 ; and judgment was rendered in favor of the plaintiff for the sum of $36,986.78, with interest thereon from October 15, 1880, due to her absolutely, and for the sum of $36,975.39, with interest thereon from October 15, 1880, due from defendants in respect to the life-estate; and that the last mentioned sum be paid over to a trustee to be appointed in the place of the defendants.

This judgment was modified by the general term by re-during the first named sum of $36,986.78 to $11,300.26, and the last named amount of $36,975.39 to $17,033.34. The derision of the general term exempted the defendant McKesson from all the loss of $16,177.25, except $1,915.82, with which it charged him, and from all the loss of $22,-686.20 except $2,744.65, with which it charged him. The sum of $17,315.12 was the amount due the estate from Wilmerding & Mount, December 31, 1871, as appears from the findings; which also show that there was due December 31, 1872, from the firm to the estate, $102,176.95, and on December 31, 1873, $111,992.01.

The opinion of the general term holds that the evidence justifies the finding that the defendant McKesson was liable for the balance due the estate at the close of the year 1871, but that he was not chargeable with the increase of the balances due the estate as shows in 1872 and 1873; which was owing to the receipt by the firm of the proceeds of investments paid off, which at once went into their business, as well as to the misappropriation made by George during that period. The deposits with the firm of moneys received, included moneys realized in the due course of administration of the estate.

While the use and conversion of the securities was a dishonest and unlawful misappropriation of the funds, which constituted a devastavit upon the estate committed by the defendant Wilmerding, the liability of the defendant McKesson for the loss incurred by the estate rests upon the ground that he failed to perform his duty, as an executor and guardian, in not taking charge of and protecting the interests intrusted to his keeping, and that the loss was occasioned by reason of his negligence and want of care. The trial court found that he was chargeable with negligence in allowing the money to accumulate after January 1, 1870, as securities were paid off, in the discharge of which he took part. The evidence shows that there was no bank-account kept by the executors jointly which would require the signatures of both executors to draw upon it, but only a bank-account in the name of George G. Wilmerding, as executor, and this was discontinued, in 1864, as-inconvenient. If this precaution had been observed, no money could have been drawn belonging to the estate without McKesson’s direct authority. He had knowledge, or means of knowing, that the moneys-which were paid in to George, and were awaiting investment, were used in the business of the firm of Wilmerding & Mount. When he rendered his account as executor, the account showed that the firm were allowing the estate interest on moneys in their hands, paying about $3,000 a year, which indicated that large sums were there belonging to the estate. After December 31, 1868, it appears that no new investments were made, and for six years afterwards moneys paid on securities which became due accumulated in the hands of the firm.

As we have seen, in 1872 over $100,000 was due the estate, as the the books of account showed, and in 1873 over $111,000. McKesson had access to the books, and could easily have ascertained what the amounts were in the hands of George or the firm of Wilmerding & Mount. He could have learned from the books, if from no other source, that this firm was using the moneys of the estate, and paying interest thereon. His own evidence shows that, when speaking to George on the subject of accumulation of money, about the time when $64,000 was paid in on the asylum bonds, and $12,000 on the bond and mortgage, and other large sums were on hand, as appeared by the account for the year 1872, he was informed that it would be needed to pay off “the boys.” This hardly furnished sufficient excuse for failing to see that the moneys of the estate were properly and safely invested. At the time, it may be remarked, “the boys ” had been settled with, and after-wards large sums were paid in, which constituted the basis of the heaviest defalcation by George. His duty was to see that these large sums which were paid in were drawing interest from investments safely made, and, if he had been vigilant in making inquiry, he could not but have learned, if he did not know before, that the firm was using and allowing interest on moneys belonging to the estate. His neglect to make inquiries is evidence that he was negligent-in looking after the interest intrusted to him. It is true that the moneys which remained uninvested did not come into his hands, and perhaps it may be said that he had not the control over the same he would have had if they had been paid directly to him; but that fact did not excuse him from the use of ordinary care in protecting the funds from loss, and he must have known, or he could have known, if he did not, that the funds had been diverted from the usual course of investments, by being used in the business of the firm of Wilmerding & Mount; and he should, at least, have sought to have the same invested, or to remonstrate with his co-executor for the use to which they had been appropriated. Except as already stated, the proof does not show that he insisted that investments should be made, or took any measures with the view of procuring the same. The question whether he should have resorted to legal measures, for the purpose of taking the funds out of the hands of his associate under the circumstances, does not distinctly arise, as it is not apparent that he affirmatively insisted upon a different disposition of the same; and it appears by his conduct that he acquiesced in their remaining in the condition in which they had been.

Although McKesson testified that before the failure of Wilmerding & Mount he never knew of the use by George G. Wilmerding, or his firm, of any moneys or funds of the estate, yet there is strong evidence to establish the fact that he must have known it, as the court substantially found; and, if he did not, upon inquiry he could have ascertained it, and in failing to do so he was chargeable with carelessness, and a neglect of a plain duty. Cases may arise where one executor is responsible for the acts of his co-executor in the management of funds which have come into his hands; but where the funds of the estate were lawfully received by one of the executors, or were originally in his hands, or properly paid to him in the due course of administration, and there is nothing to excite suspicion as to the integrity or responsibility of such trustee, or to create a belief that the funds have been improperly used or invested in violation of the established rules applicable to such cases, or were unlawfully allowed to remain uninvested, there is no rule which charges the executor or trustee, who has not control of the fund, with the wrongful acts or misconduct of his associate. If, however, the circumstances are such as to create a doubt in respect to the safety of the funds, a co-executor is not exonerated from the duty of vigilance in protecting them. If the executor is merely passive, and simply does not obstruct the collection or receipt of assets by his associate, he is not hable for the latter’s waste; but where he knows and assents to such misapplication, or negligently suffers his co-executor to receive and waste the estate when he has the means of preventing it by proper care, he becomes hable for a resulting loss. Croft v. Williams, 88 N. Y., 384.

McKesson did not occupy the position of a passive trustee, merely joining in receipts, etc., for conformity. He was active, to a considerable extent, as to matters connected with the trust; advised as to investments; passed his accounts as executor, and received his lawful commissions; consulted counsel; united in employing an accountant—he did everything that was required by the position he occupied, except that he neglected to protect the estate from the hazards of the business of Wilmerding & Mount. His duty demanded that he should see that the moneys of the estate did not he idle, and that they should be protected from loss. For his neglect in not attending to this duty, he was very clearly hable, except for the deficiency caused by the wrongful taking and conversion of the securities of the estate by George G. Wilmerding without his knowledge or consent. This was a breach of trust committed, after the plaintiff became of age, in 1872, by George, by the abstraction of securities in his possession, and the hypothecation of the same for moneys loaned to himself or his firm. His fraudulent acts in this respect constituted a spoliation and waste of the funds of the estate for which McKesson was not responsible. The estate had been lawfully invested, and the loss was caused by the wrongful and fraudulent acts of George G. Wilmerding, without the knowledge of McKesson, and with nothing to excite his suspicion that his co-trustee would be guilty of thus misappropriating and wasting the funds of the estate. In such a case, a co-trustee is not responsible for the acts of his associate. An executor or trustee is not a guarantor for the safety of the securities which are, committed to his charge, and does not warrant such safety under any and all circumstances, and against all contingencies, accidents, or misfortunes. McCabe v. Fowler, 84 N. Y., 314.

The general rule as to the habihty of one executor or trustee for the acts of his co-executor or trustee is laid down in Williams on Executors (Sixth Amer. Ed., 1820), 9, as fohows: “ A. devastavit by one of two executors shall not charge his companion, provided he has not intentionally or otherwise contributed to it, for the testator’s having misplaced his confidence in one shall not operate to the prejudice of the other.”

For the devastavit of a co-executor or trustee, an executor or trustee is not hable, unless it appears that he had knowledge or assented to the acts done, or had notice which should excite his suspicion, and put him on inquiry. This rule is fuhy sustained by the authorities. Sutherland v. Brush, 7 Johns. Chan., 17; Sherman v. Parish, 53 N. Y., 483; Adair v. Brimmer, 74 id., 539; Peter v. Beverly, 10 Pet., 532; Ormiston v. Olcott, 84 N. Y., 339; McCabe v. Fowler, id., 314; McKim v. Aulbach, 130 Mass., 481; Croft v. Williams, 88 N. Y., 384.

None of the cases cited by the plaintiff’s counsel are in conflict with the views laid down, and we are unable to find any ground upon which McKesson can be held liable for the fraud and misconduct of his co-trustee in reference to the securities which were unlawfully abstracted by the latter. George G. Wilmerding, being lawfully in possession of the securities, and having sole custody and charge of the same, and there being no ground for interference with his right to hold them, no reason exists why McKesson should be held hable for the wrongful acts of his co-trustee. McKesson was not chargeable with connivance or culpable negligence, and none of the decisions, as we have seen, sustain the rule that, under the facts presented, he should be held to the most strict and rigid accountability.

The amount appropriated by George G. Wilmerding, consisting of $36,000 in government bonds, $4,000 in Erie Railroad bonds, and some other securities, with interest on the same, was improperly allowed against McKesson by the judge at special term. In this respect the judgment was erroneous, and should be corrected by the deduction of the several items mentioned.

The failure of the defendants to make a separation of the securities, as contemplated by the will, did not induce or cause the spoilation of the estate by George G. Wilmer-ding, nor would it have been prevented if such separation had been made. There must be a conjunction of wrong and loss to sustain a liability upon any such ground (Croft v. Williams, 88 N. Y., 384), and, as this does not appear, the appellant’s claim cannot be upheld.

The statute of limitations was no defense to the plaintiff’s claim.

The judge in his findings has allowed interest on losses computed from January 1, 1815, to January 1, 1880, with annual rests, at six per cent., till January 1, 1819, and five per cent thereafter. We think that this is not a case where annual rests should be made; and, in view of the circumstances, there being no wrongful intention on the part of McKesson, that he should not be made hable for the full amount, with legal interest. At most he should be charged only with interest at five per cent., and in this respect the judgment should be corrected.

For the reasons stated, the judgment of the general term should be reversed, and the judgment of the special term modified in the particulars indicated.

Amendments may be drawn and served by the respective counsel in conformity with the suggestions in this opinion, and the judgment settled, upon motion, by the judge. Keither party should have costs of appeal to the supreme court, or to this court, as against the other.

All concur.  