
    Mary Cluff, App’lt, v. Henry S. Day et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    Executors and administrators—Surety on executor’s bond—Extent OF LIABILITY.
    By the will of Burgess Oluif certain property was devised “in trust” to one Tower, Ms executor, who was directed to convert it into money and invest the proceeds in good securities and pay the income to testator's widow, after her death dividing it among her cMldren, etc. Upon the widow’s application for a final settlement of Tower’s accounts as ex- cutor a decree was made in November, 1873, wherein he was charged with a. , balance of about $10,000, which it was decreed “said executor retain, invest and keep invested * * * according to the trusts and provisions contained in said last will and testament.” In 1886, on application of plaintiff for a further accounting, it was adjudged that Tower pay into court $10,000 and about $2,000 to the plaintiff as income, which he failed to do. Held, that the sureties on Tower’s bond as executor were liable, as he had done nothing to change his relation from that of executor to trustee, nor had he been discharged by the surrogate.
    Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on decision of the special term dismissing the complaint.
    The action was brought upon the bond executed by the defendants as sureties for Edward E. Tower, made by him as executor of the will of Burgess Cluff, deceased; which contained the following provisions:
    “ First. I give, devise and bequeath all my property of every name or nature whatsoever unto 'Edward E. Tower, of the town of Cohasset, in the state of Massachusetts, to be held by him in trust, nevertheless, for the following purpose and no other,” to wit: To convert the property into money and invest the same in good securities and pay the interest from time to time to his widow (the plaintiff), and after her death to divide it among his children. And lastly, he appointed Tower executor of the will. The testator died in 1871, and letters testamentary were issued to Tower. In a proceeding on her application had before the surrogate for final settlement of his accounts as executor á decree was made in November, 1873, whereby' he was charged with a balance of $12,222.98, which it was decreed “ that the said executor retain, invest and keep invested * * * according to the trusts and provisions contained in said last will- and testament.” This amount was subsequently reduced by modification of the decree to $10,037.98.
    In 1886, on the application of the plaintiff for á further accounting in the surrogate’s court, it was adjudged that Tower forthwith pay into the court $10,037.98 principal of estate, and to the plaintiff $2,050.76, the balance due her as income, that he pay a specified amount charged against him for costs into the surrogate’s court. He failed to pay as directed. His letters were revoked, and this action followed.
    
      Edward B. Whitney, for app’lt; Eugene D. Hawkins, for resp’t.
    
      
       Reversing 14 N. Y. State Rep., 729.
    
   Bradley, J.

The action was brought under § 2609 of the Code of Civil Procedure, and the plaintiff in the complaint alleges the decrees of the surrogate made upon the accounting of Tower in 1873, and in 1886, and that at the time of the former he did not set apart anything to represent the balance charged against him by the decree, and made no investment of the trust fund pursuant to it, and that he disobeyed each and both of such decrees of the surrogate. The defense rests mainly upon the alleged ground that the effect of the decree of 1873 was to terminate Tower’s duties as executor, and that thereafter his functions were those of trustee only, in respect to the estate; and therefore the defendants as sureties in his bond as executor were no longer responsible for his administration of it. If these premises are correct, such conclusion necessarily follows, because the decree of 1873 remains unimpeached, and as between the parties is conclusive as to the matters within the scope of its determination. That decree purports to and does represent a final accounting of the executor as such, and by it he was charged with a balance, as afterwards modified, of upwards of $10,000. The question presented" here is, whether the executor as such was discharged by the decree of 1873. If he was, the decree of 1886 must be treated as made upon an accounting by Tower as trustee, and if not so discharged, it was within the jurisdiction of the surrogate to require and to take his accounting as executor, although it would not go back of the former decree as to the state of the account, but would have relation to the time and transactions subsequent to it. In re Hood, 90 N. Y.. 512; In re Soutter, 105 id., 514; 8 N. Y. State Rep., 6. And then liability upon the bond would arise from the failure of the executor to obey the decree of 1886. The former decree did not, in express terms, discharge the executor. The investment and its continuance would seem to call into exercise the functions of a trustee, rather than those of an executor, and it was in view of that purpose that he was directed to retain it, but his retention of it was not necessarily the act of a trustee as distinguished from that of an executor.

The question became one of construction and effect of that provision of the decree, and upon that subject it may be well to consider the question in the light of the authorities having some relation to it. In Laytin v. Davidson, 95 N. Y., 263, the will referred to contained provisions requiring the exercise of functions executorial, and those of a trustee. A final accounting of the executors was had before the surrogate, and by the decree the amount of the capital of the estate remaining in their hands was determined, and they were directed to retain and hold it “as trustees under the last will and testament ” of the testator. The -court, in the opinion delivered by Judge Andrews, said: “ The •decree did not in terms discharge the executors, but this was the reasonable intendment and legal effect of the direction that they should retain and hold the whole balance of the estate as trustees under the will. The fact that the trustees have not made an actual division of the trust fund into shares as directed by the will does not, we think, change the question. * * * The executors have upon a final accounting as executors been discharged as such. The fund has become exclusively a trust fund under the will to be held by the trustees,” etc. Our attention is also called to Matter of Estate of Hood, 98 N. Y., 363, where there was a final ■accounting of the executors, and the decree of the surrogate directed “that the balance of said moneys, being the sum of $53,710.69, said executors shall hold and invest pursuant to the powers in said last will and testament,” and it was held in a pro-needing to revoke the letters testamentary of one of the executors that he, as such, was not discharged by that decree, and in the opinion of the court, delivered by Judge Miller, it was said that, in the absence of any direction in the will that the executors •should become trustees, no reason exists why the executor, whose account was settled, should not continue to act in that capacity. When the decree was made he was clearly an executor, and held these funds in his hands, and was liable for the same as such,” and “ even if, under the will, it was possible for the executor to have become a trustee, he could not have done so until there had been a final accounting, and a discharge by decree of the surrogate from his position as executor, or by direction in the decree that he take and hold the property as trustee as distinct and separate from his functions as executor.”

And added that “at the time of the decree the executors had not fully performed their functions, and their duties had not terminated. This fact is a complete answer to the position that the executors became trustees after the decree of the surrogate.” And remarked that the Laytin case was not adverse to such views, as “trusts were there created under the will, and the decree •of the surrogate directed the property to be held by the executors as trustees.” The ground of distinction, founded solely upon the decrees of the surrogate in the two cases cited seems to be in the use in the one and absence in the other of the word “ trustee " as relating to the character in which they should retain and invest the fund. But back of those decrees.and in reference to the wills it is said that a period of time was contemplated by the testator in the Ljaytin case when the duties of the executors as such would •end and they should assume the character of trustees only, which was not applicable to the will in the Hood case. The fact, however, remains that in the latter case the direction to invest applied to all the property remaining in the hands of the executors, and allowance was made to the executor Hood of his commissions.

The Matter of Hood, 104 N. Y., 103 ; 5 N. Y. State Rep., 501, again came up on appeal from an order directing him as late executor to render an account before the surrogate, and in referring" to the former review, Judge Finch, in speaking for the court, said : “We then held, passing by the inquiry whether under the will it was possible for him to exchange the character of executor for that of trustee, that he had not effected such exchange, and remained executor only, and removable as such for his misconduct in that capacity. We pointed out that on the accounting in 1869 be was not discharged, was not directed to hold the remaining assets as trustee, was not credited with such transfer and his account thereby balanced, but the decree entered directed as to the assets remaining that the said executor shall hold and invest pursuant to the-powers and directions contained in said last will and testament. There had been no payment to the defendant as trustee, no new account opened and kept in the new capacity,, and no separation or division of' the fund allotting to the beneficiaries their exact and specific proportions.”

These views tend to illustrate the principle of the decision of the court on the former review, and they seem to indicate that to some extent, at least, the distinction between it and the Laytin case was in the direction given by the surrogate’s decrees.

In Matter of Willets, 112 N. Y., 289 ; 20 N. Y. State Rep., 735, it was held that it was not within the contemplation of the will that the two functions of executors and trustees were to co-exist, but that those of the former were to first be executed and the latter to follow. The surrogate settled their accounts as executors and ordered them out of the “balance of principal in their hands to pay to themselves as trustees ” a sum mentioned. It was held that their functions as executors then terminated and they assumed those of trustees. That case came fairly within the doctrine of the Laytin case.

In Johnson v. Lawrence, 95 N. Y., 162, where the indication in the will was that the two functions might co-exist, and that no separation of them was contemplated, the court said that “ taking the adjudged cases together, they appear to establish that to entitle the same nersons to commissions as executors and as trustees the will must provide, either by express terms or by fair intendment, for the separation of the two functions and duties, one duty to precede the other, and to be performed before the latter is begun, or substantially so performed, * * * and that where the will does so provide 'for the separate and successive duties, that of the trustee muist be actually entered upon and its performance begun either by real severance of-the trust fund from the general assets, or a judicial decree which wholly discharges the executor and leaves him liable only as trustee.” And on the subject see Hall v. Hall, 78 N. Y., 535; In re, etc., Mason, 98 id., 527; Phœnix v. Livingston, 101 id., 451.

In all these cases except that of Hood the controversies were in respect to commissions and whether the executors and trustees were entitled to them in both capacities, and more especially in the latter. And to entitle them to commission also • as trustees it must appear by the will that the separation of the two functions was clearly intended by the testator and has been effected, or that the office of executor has been terminated by the discharge of him as such by the decree of the surrogate, made upon his accounting, whereby the matters of the testamentary trust solely are devolved upon him as trustee.

In the present case the trial court found that at the time of the accounting in 1873 Tower had in his hands the money charged in the decree. This must be assumed, as the fact does not necessarily appear to the contrary, and therefore no charge for any devastavit prior to that time arises for consideration, and as the executor was not by the express terms of the decree discharged, the determination of the question presented is dependent upon the nature of the functions which he was, after the decree, permitted to exercise in respect to the fund. It may be observed that all the property of the testator was devised to Tower, “to be held by him in trust,” and he was directed to convert into money, invest it, pay the income to the plaintiff and after her death to divide it among his children. Tower was appointed executor to execute the provisions of the will. The duty of investing the fund and disposing of the income and finally of the principal was that of a trustee. But Tower took the, estate in his hands as executor, and the decree directed “ that the said executor retain, invest and keep invested the balance remaining in his hands * * * according to the trusts and provisions contained ” in the will. Those provisions were for investment, payment of income and final distribution. He could retain the fund as executor as directed by the decree, although the investment and what followed would be within the functions of a trustee. He made no investment and did no act indicating that he treated the fund as held by him in any capacity other than that in which he had received it. It is true that as a general rule when the same hand is to pay and receive, what is required by law to be done to accomplish' it will be deemed done, but it is entirely consistent with the decree that the fund be retained by him as executor until he should take •an opportunity to invest it, and the transfer to him as trustee would be evidenced by the investment. The decree did not, as in the W ilkts case, direct him as executor to pay the fund to himself as trustee, nor, as in the Lay tin case, to hold it as trustee. The only practical effect of the decree was a settlement of the accounts of the executor, and it would have had the same effect for all the purposes to which it was entitled as made, if it had stopped with the adjudication of the balance against him as such, and directed the payment of the costs and expenses of the proceedings as it did. The duty in respect to the investment, etc., was given by the will.

So the case may be treated as if no direction had been given by the decree in that respect. Could it be effectually said that from the time of a mere adjudication of the settlement of the accounts of the executor he ceased to hold the funds as such? It seems quite clearly not until he had in some manner done something to change his relation to it. In such case, as said by Judge Finch in Johnson v. Lawrence, the duties of the trustee must be actually entered upon and performance begun, or the executor be wholly discharged by the decree of the surrogate. Neither was done in this, instance, and assuming that the fund remained on his hands at the-time of such accounting nothing appears to divest him of the relation of executor to it. The decree does not import his discharge as such; nor is a forced or doubtful construction justified for the purpose of giving to it such effect. In the PJuznix case the trustees actually entered upon the performance of their duties as such, and as the executor in the case at bar was not discharged by the decree, nothing appears to warrant the conclusion that his functions as executor were terminated in respect to the fund. If these views are correct, the surrogate had jurisdiction ‘to take the accounting of the executor and make the decree of 1886, and it must be treated as made upon the accounting of Tower as such. This is consistent with the provisions of that decree; and it was in that view that the application was entertained by the surrogate for the revocation of his letters testamentary, and decree made accordingly. The exceptions, therefore, to the finding of the trial court that the-executor was discharged by the decree of 1873, and to the conclusions of law which followed, were well taken. These views render it unnecessary for the purposes of this review to consider any other question.

The judgment should be reversed and new trial granted, costs, to abide the event.

All concur.  