
    George U. Forbell, as Committee of the Person and Estate of William P. Forbell, an Incompetent Person, v. Ida L. Denton and George U. Forbell, as Administrator and Administratrix, etc., of William P. Forbell, Deceased, and Others. David S. Van Wicklen and Others, Appellants; Ida L. Denton, as Administratrix, etc., Respondent.
    
      Committee of a lunatic,— liability of Ms sureties under a judgment recovered against the committee — title to the lunatic’s estate during Ms life and on his death, — when his administrator's liability arises.
    
    The rule that sureties are, in matters resting within the discretion of the court,, to be regarded with indulgence, and must, when justice and equity allow it, upon a failure of their principal to protect himself from liability, be permitted to proceed in or resist a litigation, does not apply to a case in which a judgment has been regularly entered against the principal, where he has appeared in the action and litigated the questions involved.
    Where a judgment is obtained against the committee of a lunatic, in an action in which such committee was represented by an attorney, directing that he pay to himself and another, as administrators of the lunatic, a certain sum of money, and an execution is issued against such committee and is returned unsatisfied, the committee being at the time of his appointment as administrator insolvent and unable to pay the judgment, the motion of the sureties on the bond of the committee, made when the enforcement of their bond is attempted, to open the judgment, which is binding upon them under the doctrine of res adjudicada, and to be allowed to come in and defend, cannot be granted,
    • although such sureties were not parties to, and had no knowledge of, the original action, especially where the papers used upon the motion do not suggest the existence of anything more than a technical defense, without superior equities to commend it to the court, and where the relief asked for is not likely to subserve the ends of justice.
    A committee of a lunatic has no title to the property of the lunatic, but, acting as agent, officer or bailiff, discharges a trust imposed upon him by the court, and until the accounts of the committee are closed and the funds are handed over, he and they remain under the control of the court. The title to the estate of the lunatic passes, upon his death, into the hands of his administrators. It is t.ke duty of the bondsmen of the committee to make good any loss resulting to the estate by reason of the misconduct of the committee; and the liability of the administrators’ bondsmen does not attach until the fund is turned over to the administrators.
    Appeal by David S. Van Wicklen and others from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of April, 1900, denying the motion made on their behalf as heirs at law of the late Jacob Lott Van Wicklen, deceased, to open the judgment entered in this action settling the account of George IT. Forbell as committee of William P. Forbell, an incompetent person, on the ground that the same was unauthorized and improperly and erroneously granted, and that they as such heirs at law and next of kin of Jacob Lott Van Wicklen, deceased, be made parties to said action and allowed to come in and defend.
    
      Willia/m G. De Witt, for the appellants.
    
      I. Newton Williams [Thomas J. Keigharn with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff, George IT. Forbell, was the committee of a lunatic named William P. Forbell. The lunatic is now dead, and the defendants (one of whom is the plaintiff) were duly appointed as administrators, but George IT. Forbell has since been removed. While both of them were administrators, this action was brought by the committee, said George IT. Forbell, against himself and the other defendant as such administrators to settle his accounts as such committee. Judgment was entered in favor of the defendants as administrators, against the plaintiff, for $9,874.76, the amount found to be due to the estate of the lunatic from the said George IT. For-bell as such committee. Jacob Lott Van Wicklen was one of the sureties on the bond given by the said George Ü. Forbell as committee. He is now dead, and this motion is made by David S. Van Wicklen, one of the heirs of Jacob Lott Van Wicklen, who asks to be allowed to come in and defend the action. This motion was not made until the bond which Jacob Lott Van Wicklen made was sought to be enforced, George U. Forbell, the committee, being insolvent, and unable to pay the amount of the judgment. On the hearing the motion was denied and appeal comes to this court.

It is conceded that the decree and judgment in this action are binding upo'n the sureties under the doctrine of res adjudícala, although they were not parties and had no knowledge whatever of the pendency of this action. (Douglass v. Ferris, 138 N. Y. 192, 201, and authorities there cited.) It is urged, however, that this court has the power, and ought of right, to open the judgment and let the sureties in to be heard and defend, citing Jewett v. Crane (35 Barb. 208) and various authorities, but none of them, in our opinion, is applicable to the facts of this case. In Jewett v. Crane (supra) the learned court lays down the propositiqns that if the judgment has been irregularly obtained, sureties can be heard, if they apply seasonably, on motion to set it aside and may be let in to defend the original action, and that sureties may be let in to defend on the merits, in the place of the defendant for whom they were bound, even after a regular judgment, if it is necessary for their protection, on suitable application, and excusing laches. It is not to be questioned that this states fairly the practice, but it was not necessary to the determination of the question then before the court. In the case at bar the plaintiff brought the action ; he appeared by counsel throughout the trial, and a judgment against him, upon the merits, which found that he, as the committee of the lunatic, was indebted to the estate for a given amount, must be conclusive, not alone upon the plaintiff but upon his sureties. (Douglass v. Ferris, supra.) Sureties are regarded with indulgence in everything depending upon the discretion of the court, and within this principle they must be permitted, where that can be justly or equitably done, to protect themselves against liability, where their principal shall fail to do so, by proceeding in or resisting the litigation for which they become bound in his name (Hoffmam, v. Steinau, 34 Hun, 239); but we find no adjudicated case in which the sureties have been permitted to interpose a defense where the judgment was regular, or where their principal has appeared in the action and litigated the questions involved.

The principal contention of the appellants is that upon the appointment of Forbell as administrator there was, as matter of law, á transportation of all of the funds and effects of the incompetent from the custody of the committee to that of the administrator, and that the bond of the committee was virtually discharged ; that the responsibility passed to Forbell as administrator, and that for any default liis bondsmen as administrator were liable. No" title to the property of a lunatic passes to the committee. A trust is, no doubta discharged by the committee of the estate of a lunatic, but the trust is in the court, and the committee acts under its appointment as agent, officer or bailiff. Through him the court must preserve the property intrusted to it and therewith maintain the lunatic and his family, but the lunatic is not divested of his estate or property rights, and the legal title thereto remains as before. Nothing has been taken from him but its control and management. (Kent v. West, 33 App. Div. 112, 116, and authorities there cited.) When the court appoints a committee and accepts a bond for the faithful discharge of the duty which the court has assumed, the proceeding for the adjustment of the accounts of the committee is incidental to the jurisdiction acquired and exercised over the property of the lunatic. Until the accounts of the committee are closed and the fund handed over, he and the fund in his hands remain necessarily under the control of the court. (Matter of Butler, 8 Civ. Proc. Rep. 56.) Can it be said that a committee, acting in behalf of this court, may embezzle the funds of a lunatic, and that his bondsmen can escape liability for the loss to the estate of the lutiatic because the committee has subsequently, and before a settlement of his accounts as such committee, been appointed an administrator of the lunatic’s estate ? If it cannot, then the appellants have no standing on this appeal. On the death of the lunatic his estate passes to his legal representatives without any action on the part of a committee; but if that estate has been impaired during the time that its management has been in the hands of the committee, so that there is little or nothing to come into the hands of his administrators, as in the case at bar, the bondsmen of the committee are bound in law to make good that loss to the estate, and that obligation cannot be lessened because the committee happens to be one of the administrators. The defendants, as administrators of the lunatic’s estate, were entitled to receive the property of the lunatic. If this was made impossible by the misconduct of one of them while acting as committee, it is the duty of the bondsmen of such committee to make good the loss, and that burden cannot be turned over to the bondsmen of the administrator. They assume only the responsibility of answering for the conduct of the administrators, not for the wrongs of the committee, and until the court had determined the amount due from the committee to the estate, and until that fund had heen turned over to the administrators, who had the legal title to whatever belonged to the estate of the lunatic, the liability of the administrator’s bondsmen did not attach.

It is not claimed that there is any irregularity in the judgment; it is conceded that it binds the appellants; and, as they have no superior equities to the heirs of the lunatic, we fail to discover any reason why they should be permitted to come in and defend upon the theory which is asserted on this appeal. In the case of Gottsberger v. Taylor (19 N. Y. 150), relied upon by the appellants, the court held that the money collected by Smith as agent for Henry, while the latter was collector of the estate, came into his hands while acting in a fiduciary relation, and that the presumption was thus raised that there had been no violation of duty on the part of Smith and that the money was still in his possession at the time he gave the receipt to Henry, at which time the liability of the sureties attached. In tiie case at bar, however, there is a judicial determination that the committee owes the estate of the lunatic a given sum of money; the execution issued upon the judgment has been returned unsatisfied, and there is no suggestion that the money or property was in the hands of the committee at the time the bond of the administrators was made and executed. Whatever presumptions may have existed in favor of the committee were available in 'the action brought by the committee for a settlement of the accounts, and the judgment which determined that the committee was indebted to the estate, which indebtedness has not been paid, disposes of the question. If the administrators had given the committee a receipt for the property, if there was any suggestion of anything more than a technical defense, and one which is without superior equities to commend it to this court, there might be some justification for reversing this order. Under the circumstances of this case, however, no end of justice is likely to be served by such a disposition, and the matter calls for an affirmance of the order.

The order appealed from should be affirmed, with costs.

All concurred, except Jems, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  