
    Ellen Whitman, Respondent, v. John D. Keiley, Appellant.
    
      Examination of a defendant before trial — an executor who subsequently acts, in the care of the estate, as the agent of a legatee may be examined.
    
    Upon an application to vacate an order for the examination of a defendant before-trial, requiring him to produce certain books and papers in connection therewith,it appeared that the plaintiffs husband died,- leaving a will, by which her gave all of his property to the plaintiff and their infant son, to be equally divided between, them, and made the plaintiff a trustee f.or the son until her should arrive at the age of twenty-one years, and that the defendant, who was", one of the executors of the will, alone assumed the active management of the estate; that in 1878 a decree was entered settling the accounts of the executors, which adjudged that the sum of $68,612.76 remained in their hands; that the-defendant thereafter retained possession of the property and collected the: income therefrom, and treated it in all respects as if it were his own; that in 1879 he rendered the plaintiff a statement showing a balance -in her favor of" $54,854.62;' that at long intervals thereafter he rendered statements of the-account, the last one showing a balance in his hands of only $10,142.62, which, the defendant refused to pay over to her unless she would give him a general; release, which she declined to do.
    The complaint demanded judgment for an accounting by the defendant of all-transactions in relation to the plaintiff's property subsequent to 1879.
    The answer alleged that the property adjudged by the decree of 1878 to be in the defendant’s hands was paid by him to the plaintiff, and that the plaintiff returned it to the defendant to be administered by him, as her agent and representative under a power of attorney executed by her to him; that he rendered certain accounts to the plaintiff, which were accepted and retained by her with.out objection, and thereby became accounts stated; that on January 81, 1898, he delivered to the plaintifE a check for §10,143.63, the balance due her, and that she accepted and used such check. The answer asked that the complaint be dismissed.
    
      Held, that the order for the examination of the defendant, and the production by him of the books and papers bearing upon the subject, was properly granted.
    Van Brunt, P. J., and O’Brien, J., dissented.
    Appeal by the defendant, John D. Keiley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January, 1901, denying his motion to vacate an order for his examination before trial, and for the production of certain books and papers in connection with the examination.
    
      Martin B. Baris, for the appellant.
    
      Bdwin 8. Hv/nt, for the respondent.
   McLaughlin, J.:

Appeal from an order denying defendant’s motion to vacate an order requiring him to submit before trial to an examination, and to produce in connection therewith certain books and papers. The motion to vacate was made upon the same papers upon which the order directing the examination and the production of the books and papers was granted. These papers'consisted of the complaint, the answer and two affidavits, one by the plaintiff and the other by her husband.

From these papers it appeared that in 1877 one Harold Hen-wood died, leaving him surviving his widow—this plaintiff — and an infant son. He left a will, by wh..ch he gave all of his property to the plaintiff and their son, to be equally divided between them, and making the plaintiff a trustee for the son until he should arrive at the age of twenty-one years. The executors named in the will were the defendant, one Halliard and the plaintiff. The will was admitted to probate and letters testamentary issued to the defendant and Halliard, the plaintiff not qualifying. The defendant alone assumed the active administration of the estate, Halliard taking no part whatever therein subsequent to December 21, 1878, on which day, in the Probate Court of Hudson county, N. J., a decree was mude, wherein the accounts of the executors were settled, and it was adjudged that the balance in their hands, after payment of commissions and other expenses, was the sum of $63,612.76, which sum the decree directed them to dispose of according to law. It also appeared that after the entry of the decree in the Probate Court the defendant did not turn over to the plaintiff this property, but retained possession of it and collected the income therefrom, as well as- the income from certain real estate which she was entitled to, and made investments of the same, treating it in all respects as if it were his own,' sending to the plaintiff, from time to time, his personal checks for different amounts; that in 1879 he made a statement, to the defendant of the funds in his hands, which showed a balance in her favor of $64,354.62, after the payment of a, specific legacy of $10,000; that from the time this statement was rendered, until 1893, when she again married, the defendant gave'her no information as to her property or its management, and this notwithstanding the fact that in the meantime she frequently requested him to give her such information; that in February, 1894, he did furnish a statement, but it was, at his request, returned ; that this statement purported to be from January 1, 1886, to December 11, 1893 ; that thereafter she obtained two other statements, purporting to cover the period between the latter date and January 1,1898; that these were the only statements she ever had and that-it was impossible for her ■ to ascertain from them what the defendant had done with her property, how he had managed it or what the income had been therefrom ; that the statements were erroneous upon their face, in that they did not contain a full statement of the sums received by the defendant, or the correct amounts retained or paid out by him; that they showed a balance in his hands of only $10,142.62, which the defendant had refused to pay over to her unless she would give him a general release, which she had refused to do. The judgment-demanded in the complaint is an accounting by the defendant of all the transactions in relation to plaintiff’s property subsequent to August 27, 1879.

The defendant, in his answer, admitted the death of Iienwood, the admission of the will to probate, and that he and Halliard alone qualified as executors, and alleged that on the 21st of December, 1878, the accounts of the executors were settled and a decree entered directing the distribution of the funds in their hands; that immediately thereafter the defendants did, in fact, turn over to the plaintiff all of the property of the said estate and took her receipt therefor, and subsequently, at her request, he received back the said property into his possession to be administered by him “ as the agent and representative of said plaintiff, under and pursuant to a power of attorney executed by said plaintiff to this defendant for that purpose and delivered to him by her; and that thereafter this defendant held and administered the said property for said plaintiff under and pursuant to such employment and not otherwise.” The defendant admitted that it was his duty, as such agent and attorney, to render to the plaintiff regular accounts of the administration of her property, and he alleged that, in pursuance of such duty, he did render her such accounts, commencing each year, from 1879 to and including January 31, 1898; that such accounts were received, accepted and retained by the plaintiff, without objection, and he alleged that hy the acceptance and retention of the accounts without objection the same “ became and were and are accounts stated.” He further alleged that, on the 31st of January, 1898, he rendered to the plaintiff an account of his transactions as her agent, at which time he delivered to her a check for $10,142.62-—-the balance due her, and that she accepted and used such check — and he asked that the complaint be dismissed, with costs.

We are of the opinion that this order was properly granted, and this even though, as alleged in defendant’s answer, he had settled and been discharged as executor and thereafter had been acting as the agent of the plaintiff. If he were the agent of the plaintiff, no good reason can be suggested why he should not make the fullest disclosure to her of his own acts — what he has done with her property, how he has managed it and what have been the expenses connected with such management, and why it has decreased under his management from upwards of $50,000 to $10,000 — and why he should not produce all of his books and papers bearing on that subject. The general rule is that, where the fiduciary relation of principal and agent exists and the facts, as here, are peculiarly within the knowledge of the party sought to be examined, the technical rules which govern the granting of orders for the examination before trial and the production of books and papers in connection there-’ with are relaxed, and that it is the duty of the party sought to be examined to make a full disclosure, of what he has done. (Carter v. Good, 57 Hun, 116 ; Green v. Carey, 81 id. 496.) This rule is a salutary one. No good reason can be suggested that, where one party acts as the agent of another in the management of his property, why, when called upon by his principal, he should not make the fullest disclosure' of what he has done with that property, and especially is this true where the principal absolutely surrenders the control and management of the property, as in the case before us, to the agent. Nor do we think the allegation in defendant’s answer that he had settled with the plaintiff should be permitted to defeat the examination. If a settlement was had, no good reason’ can be suggested why the defendant should not show that there was a proper basis for it; that it was a fair settlement; that the plaintiff got all she was entitled to; that he did not take advantage of her by reason of the fiduciary relations existing between them. He could not, of course, take advantage of this relation tó her prejudice and to his own advantage! A settlement, to be binding and effective under the facts set out in this record, must have been fair and each of the parties must have acted with full knowledge of what was being done. Here this plaintiff, when her husband died, was under twenty-one years of age. She was inexperienced in business. She surrendered her entire estate and that of her infant son to the defendant to manage for her. She trusted him and relied upon his integrity. What he told her to do with reference to her property she did. He had been the friend of her deceased husband, and as such had assured her that he would look after her welfare and that of her infant child ; that she need not hesitate to call upon him at any time for advice, and that whatever he did would be done for her benefit and would be “ a labor of love.” Having thus induced the plaintiff to trust him, which she implicitly did, no good reason can be suggested why he should not disclose to her vdiat he has done, and make such disclosure, in a degree at least, commensurate with the trust which she reposed in him.

I think the order is right and should be aífirméd, with ten dollars costs and disbursements.

Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. ' I think that the plaintiff should -he required to establish her right to an accounting by showing that the relations of trustee and cestui que trust existed during the period covered by the complaint. When she has established this fact she then, as matter of law, would be entitled to an accounting, and upon that accounting she could have all the examination of the defendant which would be necessary.

O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.  