
    Pearce Noland, Executor of Abram Galtney, deceased, vs. John Calvit et al.
    The legatees of a testator filed a petition in the probate court, against his surviving executor, to compel a final account and settlement of the estate; the executor answered, that the deceased co-executor had been the sole acting executor ; and that no part of the testator’s estate had ever come into his hands ; and he did not know whether his co-executor had e'ver settled or presented his final account; held, on this state of pleading, that the order of the court below, requiring the executor to render an account of his acts as such, was not erroneous ; as the petitioners on the coming in of such account, could make their objections to it; and prove its incorrectness, if it existed.
    How far an executor is liable for the acts of his co-executor, depends upon circumstances, and they must be shown before the liability can be adjudged.
    On appeal from fhe probate court of Adams county ,• Hon. C. L. Dubuisson, judge.
    John Calvit and J. J. Galtney, two of the heirs of Abram Galtney, deceased, petitioned the Adams probate court to compel Pearce Noland to render an account of his acts, &c., as one of the executors of said Abram Galtney.
    Noland answered, showing that his co-executor, Joseph Galt-ney, deceased, had been the sole acting executor, and had administered and divided the estate, and that he had no assets himself, and never had, except as an heir in right of his wife.
    Exceptions to the answer were filed and allowed, and another answer was filed by Noland; in which he admits, that letters testamentary were granted jointly to himself and Galtney. He denies more specifically than before, that he ever acted as executor or received any part of the assets of the estate. He also asserts that the records will show that the co-executor has administered and accounted to the probate court; but he does not know whether he ever presented a final account of his acts as executor.
    The letters testamentary were jointly executed in 1828.
    Various papers touching the administration of the estate by Jos. Galtney as executor, in some of which, reference appears to be made to Noland as, one of the executors, are copied in the record, but under the decision, are not noticed more at length.
    In the record also are copied all the accounts of Joseph Galt-ney, the co-executor, with the probate court, in which he is styled “ the executor of Abram Galtney; ” but it is not deemed requisite to set them out. They do not show a final settlement and discharge. The probate court ordered “ that Pearce Noland, surviving executor of said Abram Galtney, deceased, do render a final account of his actings and doings as executor as aforesaid ; ” and Noland appealed.
    
      Montgomery and Boyd, for appellant,
    made the following points, viz:
    1. Noland never took upon himself the execution of the will. On this point counsel reviewed the facts set out in the record.
    2. He never had any of the assets of the estate as executor, and cannot therefore, be held to account for any.
    3. The administrator. or executor of Joseph Galtney is th.e proper party to close his account as acting executor of A. Galt-ney. 2 Maine Rep. '81.
    
      J. Mewett and R. North, for,appellees
    insisted,
    1. That under the facts as shown in the record, Noland had acted as executor, and been recognized by the court as such, and had in legal contemplation jointly administered part of the estate, 'and was answerable for the proper application of all the property, with its income, therein contained. 1 Lomax on Exec. 379.
    
    2. The fact that the property afterwards passed into the hands of his companion, and was administered by hiin, will not exonerate the appellant from reponsibility for waste and misapplication by Galtney. Story, Eq. Jur., ed. of 1846, § 1280 a ; Edmonds v. Crenshaw, 14 Pet.' 166.
    3. If Galtney wasted the estate or its income, as Noland by reasonable care and diligence might have prevented it, he is responsible, and strictly accountable therefor, and he cannot discharge himself by showing a full and valid administration by his co-executor. Story, Eq. Jur. § 1283; 8 Paige, 153.
    4. It was the duty of appellant, periodically to look into the conduct of Galtney’s administration; and in case of waste or misapplication, to do all in his power to prevent such results, and if he did not, he must answer for the misconduct of Galtney, and make satisfaction for his breach of duty. Shipbrook v. Hinchinbrook, 16 Ves. 478.
    Other points were made on the.facts to show Noland’s participation in the administration, and joint liability with Galtney, and were argued at great length; but it is not deemed necessary to give an abstract of them, as they are not decided by the court.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a petition filed in the probate court of Adams county, by the legatees of Abram Galtney, deceased, against Pearce Noland, the surviving executor, praying for an order on him to render a final account and settlement of the estate. Noland answered that he had been co-executor with Joseph Galtney, who had been the sole acting executor, and denied that he had ever had any portion of said Abram Galtney’s estate in his hands to be accounted for as executor, but states he does not know whether Joseph Galtney ever settled, or presented a final account of his acts as executor. The court below made an order, “ that Pearce Noland, surviving executor of said Abram Galtney, deceased, do render a final account of his actings and doings as executor aforesaid.”

In the present attitude of this cause, we can see no objection to this order. The allegation in the answer, that the defendant never had any portion of the estate in his hands, would not preclude the petitioners from proof of the contrary. That is the very matter, in part at least to be tried, and the court could not in advance decide it in favor of the executor.

The liability of one executor for the acts of his co-executor is always dependent on circumstances. This court cannot undertake, in the absence of facts, and upon a merely conjectural state of the case, to lay down rules to govern the action of the court below. If, in taking the account, the facts give rise to the questions, which have been here argued, they can then be brought up for determination. They are not now presented, because no such questions arose or were determined in the court below.

The order will be affirmed, and the cause remanded.  