
    In the Matter of the Petition of Eva A. MacNeil, as Administratrix, etc., of Rufus R. MacNeil, Deceased, for an Order Requiring Dix W. Smith, as Committee of the Estate of Rufus R. MacNeil, Deceased, to Render an Account of His Proceedings, etc., and to Turn over to Eva A. MacNeil All Assets of Said Estate Now in His Hands. Dix W. Smith, Appellant; Eva A. MacNeil, Respondent.
    Fourth Department,
    January 6, 1915.
    Incompetent person — agreement by heirs presumptive that committee of incompetent shall not be personally liable — estoppel — consent of infant not binding — new trial — imperfect record.
    
      It seems, that the heirs presumptive of an incompetent person by agreeing that his committee shall be relieved of all responsibility connected with the incompetent’s estate, and that the affairs shall be managed by a third person, are not estopped from holding the committee liable for the loss of the estate which was misappropriated by the custodian agreed upon, unless at the time of giving- such consent they had full knowledge of all the material facts and were apprised of the effect of their consent upon their legal and equitable rights. Thus, it seems, they are not estopped from holding the committee when they were not apprised that if the funds were misappropriated by the custodian the committee and his sureties would be relieved from liability to them.
    
      It seems, that an heir apparent who consented to the agreement aforesaid during his infancy is not estopped from asserting the liability of the committee where there was no ratification after he became of age and had knowledge of the facts.
    The court will refuse to affirm a decree directing such committee to pay over to the administrator of the deceased incompetent and will order a new trial at Special Term where the record is imperfect, in that the testimony of one of the incompetent’s hems was taken in the form of an affidavit not included in the record, 'a,nd it is uncertain whether the acts of the custodian of the estate who misappropriated the same were such as to amount to notice to the committee so as to have called for affirmative action on his part.
    Appeal by Dix W. Smith from a final order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Chemung on the 30th day of March, 1914, directing the appellant to pay to the respondent, as administratrix, the sum of $22,300 assets in his hands as committee of Eufus E. MaaNeil, with interest thereon, together with costs, and further adjudging that said Smith was entitled to no commissions as committee.
    This appeal was transferred from the Third Department to the Fourth Department of the Appellate Division.
    
      W. E. Knapp [E. J. Baldwin of counsel], for the appellant.
    
      Richard H. Thurston, for the respondent.
   Per Curiam:

We should have no difficulty in affirming the order appealed from but for the fact that some of the findings made at the request of defendant are inconsistent with and may require a different conclusion from that reached by the court below in its decision.

By the findings so made at the request of the defendant it is found in substance that the defendant gave his consent to be appointed as committee on the understanding between himself and the petitioner and her two children that John Bull, Jr., should take entire charge of the estate, and of the assets thereof, and do all the work, and that Smith should be relieved from all responsibility connected with the care of the estate, and should receive no compensation or commission as committee.

At this time Eufus E. MaaNeil was the sole owner of the property now in question. His wife Eva, the petitioner, and daughter Fannie, and son Charles, who are now his sole next of kin, had no interest in such property except as heirs presumptive of their father. At this time the daughter Fannie was of full age, but the son Charles was not. The petitioner, as administratrix, now represents the rights of herself as widow, of her children, and of the creditors of her husband, if any there be. It does not appear whether there are creditors of the husband or not.

It is at least doubtful whether the evidence justifies a finding that petitioner, the wife, or either of her children, consented that John Bull, Jr., should have the custody of the principal of the estate, or the securities in which such principal was or was to be invested, and it is not claimed that Rufus R. MacNeil, the husband and father, ever so consented. But if petitioner and her daughter did so consent, they would not be estopped from holding defendant as committee liable for the loss of the estate because of the misappropriation thereof by John Bull, Jr., unless at the time they gave their consent they had full knowledge of all the material facts, and were apprised of the effect of such consent upon their legal rights, and were apprised of the law, and how these facts would be dealt with by a court of equity (1 Beach Mod. Eq. Juris. § 244), or, as it is put by another learned authority: “The cestui que trust must have full knowledge of all the facts and circumstances of the case; he must also know the law and what his rights are and how they would be dealt with by the court.” (2 Perry Trusts & Trustees [6th ed.], § 851.) _(See, also, Adair v. Brimmer, 74 N. Y. 539.)

It does not appear from the findings made at the request of defendant whether the petitioner and her daughter were informed that in case the funds and securities of the estate were placed in the custody of John Bull, Jr., and misappropriated and lost by him defendant and the sureties upon his official bond would be relieved from liability to them to make good the loss.

As to the son Charles it is clear that he is not estopped by any consent he may have given while an infant, and there is no finding of any ratification by him of the arrangement since he became of age with knowledge of the facts.

We are of opinion, however, that we ought not upon this record to make a final disposition of this case. None of the exhibits are furnished to the court or printed in the record. The testimony of the son Charles seems to have been taken in the form of an affidavit, but it is not in the record. So far as we can judge from the testimony, the railroad bonds of which the estate consisted at the time defendant was appointed committee were soon thereafter sold and the funds invested and reinvested from time to time in bonds and mortgages, all in the name of defendant as committee. While defendant disclaims having had the custody of these mortgages, they were for many years kept in a safe in the offices occupied jointly by defendant and John Bull, Jr., who were both lawyers and for several years copartners, and at some time Bull succeeded in making away with these mortgages or their proceeds. To accomplish this it would seem that he required in every instance the signature of the defendant to either an assignment or discharge of each separate mortgage. None of these documents was produced in evidence. Indeed, it is quite impossible to determine from the evidence when Bull began appropriating this estate to his own use and over what period of time he was so engaged.

In view of the office and business association of the defend ant and Bull there is, we think, a further question not fully gone into at the trial as to whether Bull’s dealings with the securities of the estate were of such a character as to amount to notice to defendant and to have called for affirmative action on his part.

We think the order appealed from should be reversed, with costs to the appellant to abide the final award of costs, and that a new trial or hearing should be ordered at. Special Term.

All concurred.

Final order reversed, with costs to the appellant to abide the final award of costs, and a new trial ordered at the Special Term.  