
    BROWN'S ACCOUNTING.
    
      Before Hon. Owen T. Coffin,
    
    
      Surrogate of Westchester County,
    
    
      December, 1874.
    Executors and Administrators,—Devastavit.—■ Trustee’s Liability for Losses.—Disbursements for Services.—Counsel Fee on Accounting.—Trusts and Trustees.—Jurisdiction of Surrogate’s Court.
    One of several co-executors or co-administrators can not avoid liability for a loss of the fund, through the misconduct of an agent, on the ground that the others were mainly active in the administration of the estate, and mainly instrumental in passing the fund into the hands of such agent, if he tacitly assented thereto when he had opportunity and reasonable cause to object.
    A trustee is himself responsible for the faithful conduct and competency of all his subordinates and assistants, whether strangers, attorneys, or contractors.
    The case of Banks «. Wilkes (3 Barrb. Oh., 99) explained.
    The fact that the parties interested in the estate knew of the employment of such agent to make investments, does not preclude them from holding the executor responsible, especially where there is no ground for holding them estopped.
    Executors and administrators can not be allowed a disbursement for clerical services in making up the accounts of a deceased agent. It is the duty of the administrator of the agent after his death, as o£ the agent himself if living, to render such account without charge.
    Under the act of 1863 (Laws of 1863, Oh. 363, § 8, amending Laws of 1849, Oh. 160, § 11, and 3 B. S. 93, § 58), the allowance to executors and administrators, for counsel fee on an accounting, may properly include the time spent in preparing the account.
    Under 1 Be®. St at. 730, § 68 (5 Ed. yol. 3, p. 33, § 87), by which a trust of real property, on the death of the sole trustee, vests in the Supreme Court—the surrogate’s court will not take cognizance of the accounting of a trustee, under a deed of trust, who was appointed by the supreme court. The latter court has exclusive jurisdiction.
    
    It makes no difference that the trust fund has become mingled with funds for which he is accounting, in the surrogate’s court, as executor.
    In the matter of the accounting of Benjamin Brown, surviving executor, &c., of James H. Blackwell, deceased.
    It appeared from the testimony in this matter that the testator died in 1858, leaving a will by which he provided, among other things, that his executors or the survivor of them should sell and convey his real estate, and should pay out of his estate his debts and funeral expenses and some small legacies. He then gave to Benjamin Brown, one of his executors, the equal third-part of all the rest, residue and remainder of his estate, in trust, to be invested upon bond and mortgage upon real estate, and to pay the interest yearly to his brother, Sidney S. Blackwell, who was also named as one of his executors, during his natural life, with remainder to his children. He then gave to his executors, and the survivor of them, one-third part of the remaining two-thirds of said residue in trust, to invest in the same manner for the benefit of his sister, Harriet Baylies, during her natural life, then to be paid to her children and the children of his sisters Julia A. Rea and Lydia Shepherd, per capita. Another one-third of said two-thirds he" gave to the executors in manner aforesaid to be invested in like manner, the income to be paid to said Julia A. Rea during life, and then to be divided among the children of all of said sisters, per capita. 
      He then gave the remaining one-third of said two-thirds to the executors to be invested in like manner, the income to be paid to said Lydia Shepherd during life, and then at her death to be divided in like manner among the children of the three sisters.
    This will bears date in 1843.
    By a codicil bearing date in June, 1858, he ratified and confirmed the will in all respects except that he gave to Mrs. Rea and Mrs. Shepherd, and the survivor of them, the use of a house and lot he owned in Yonkers.
    The testator died in 1858, and in the same year the executor, Benjamin Brown, petitioned for citations with a view to the probate of the will, and it was admitted to probate in that year. Both the executors qualified and took upon them the burden of its execution. Smith Barker, Esq,, of the city of New York, had been the counsel of the testator in Ms lifetime, drew the will, was counsel for the executors in proving the same, and acted for them in that capacity afterwards.
    In 1864 the executors had an accounting before the surrogate of Westchester county, and by the decree entered therein, it appears that there then remained in their hands about one thousand one hundred dollars in money—a part of the real estate still remaining unsold—and it was adjudged and decreed that said Sidney S. Blackwell was indebted to the estate in the sum of eleven thousand six hundred and eighty-seven dollars. A certificate to that effect was filed in the county clerk5 s office, and judgment was docketed against him for that amount.
    In 1865 Sidney S. Blackwell and those interested, whether by authority from the surrogate does not appear, compromised said judgment, and he paid to the executors nine thousand seven hundred and fifty dollars in full of the same; and he, as executor, and the other executor, executed a satisfaction piece therefor, and the judgment was cancelled. In the same year a house and lot belonging to the testator, on Broadway, blew York, and in which Mrs. Rea had one-ninth interest, held by the testator in trust for certain purposes, was sold by the executors for ninety thousand dollars, of which sum twenty thousand dollars was paid in cash, and a mortgage was taken for the residue, and subsequently thirteen thousand seven hundred and twelve-dollars and thirty-three cents of principal was paid thereon, and still subsequently the sum of fifty-six thousand two hundred and eighty-seven dollars and sixty-seven cents—the residue of the principal. The two executors with Mr. Barker, were all present when the judgment was paid and the satisfaction piece given; and also at the sale of the house and lot on Broadway ; both the executors executed the conveyance thereof, and were present with Mr. Barker when the payment was made. Mr. Brown executed the deed as trustee of Mrs. Rea, having been appointed by the supreme court to execute the trust in place of the testator. The money, in both instances, as well as the bond and mortgage, went at once into Mr. Barker’s hands, none of it passing into-the hands of either executor.
    The executors had great confidence in the probity; and business character of Mr. Barker, and confided the management of the estate to his care.
    Shortly aftér the payment of the judgment referred to, Mr. Barker invested, as a part of the share set apart by the will for the use of Mrs. Baylies, two thousand dollars in United States bonds, which fact became known to the surviving executor shortly thereafter, and to which he made no objection. The husband of Mrs. Baylies also knew and approved of the investment.
    In 1866 the executor Sidney S. Baylies died, since-which time the surviving executor has had charge of the estate, and Mr. Barker continued to act in his former capacity of custodian, making investments and paying over the interest to the beneficiaries. The amount on which Mrs. Baylies was entitled to interest, after the payment of the judgment, was some nineteen thousand six hundred dollars, of which it appears seventeen thousand six hundred dollars was invested as directed by the will, and the two thousand dollars in United States bonds. The interest on these several sums was paid separately and in different ways—on the former by check of Mr. Barker, conveyed by Mr. Brown to Mrs. Baylies, and the latter, also by check ■of Barker, directly to Mrs. Baylies through her husband or other members of the family. This state of things continued until the death of Mr. Barker, which occurred in June, 1872. It was subsequently ascertained that Ms estate was insolvent, and that he, in fact, had been insolvent from about or before 1866 down to his death. He had used for his own purposes .about six thousand dollars of the funds of the estate, besides the two thousand dollars of United Slates bonds which could not be found among his effects. The executor charges himself with the six thousand dollars in Ms accounts, but denies his liability for the two thousand dollars.
    This executor credits Mmself with two thousand five •hundred dollars paid to the administrator, &c., of Mr. Barker, for the legal services of the latter in the management of the estate. This item is objected to by the •contestants. Zo voucher for it is produced, but the ■executor, and the administrator of Mr. Barker fixed •upon this sum as the value of the services, and appeal to the testimony in the case to sustain them. Zo ■charges, however, were found upon the books of Mr. Barker for any services, and it appears that he retained commissions at the rate of one per cent, on the interest ■and on other moneys paid to beneficiaries, and that he paid some commissions as snch to the executors, but the sums so retained largely exceed those paid over. The executor alleges, in the statement appended to his. account, that nearly all the moneys received and disbursed relating to the estate, were so received and disbursed through Mr. Barker; and he retained commissions thereon amounting to about two thousand three hundred dollars, while he paid over to the executors, on account of such commissions, about seven hundred and forty-two dollars.
    The executor makes a charge of two hundred and fifty dollars against the estate for services of an accountant, in making up the account, which is objected, to.
    Mrs. Rea owned one-ninth of the house and lot known as 196 Broadway, the other eight-ninths being-owned by her brother, the testator. During his lifetime, in 1841, she conveyed it to Mm as trustee, with power to Mm, his heirs and assigns, to sell and convey the same, and to execute certain other trusts. Previous to the sale of the property, already referred to, Mr. Brown was, by the supreme court, appointed to execute the trust in place of the testator, and executed the deed of the premises by virtue of such appointment. The whole of the proceeds, including Mrs. Rea’s share, went into the hands of Mr. Blackwell’s executors, and Mrs. Rea’s share became thus intermingled with the moneys of the estate, and entered into the account filed in this matter. Counsel for legatees object that the surrogate has no jurisdiction to adjudicate in reference to that trust.
    
      F. M. Helm, for executor.
    A. F. Filmars and Mr. Freeman, for Julia A. Rea. and Harriet H. Baylies and their children, legatees.
    
      
      Francis Lawton, for Eliza W. Turner, legatee.
    
      
       If it be a testamentary trust, the surrogate’s court has jurisdiction (Laws of 1867, Oh. 782, § 1 ; Laws of 1866, Oh. 115, § 1, amending (Laws of 1850, Oh. 272, § 1).
    
   The Surrogate.

The only questions submitted for consideration are as to whether the executor is liable for the loss of the two thousand dollars of Mrs. Baylies’ share, invested in government bonds and lost; whether he shall be allowed, as a credit, the sum of two thousand five hundred dollars for the professional services of Mr. Barker; whether he shall be allowed the item of two hundred and fifty dollars for money paid for clerical services, and whether this court has jurisdiction so far as relates to the Mrs, Rea trust.

The counsel for the executor insiste that the latter is not liable to make good to the estate the loss occasioned by the disappearance of the two thousand dollars invested in the bonds, 1. Because it was the devastavit of his co-executor; and 2. Because the beneficiary for life concurred in the making of the investment, in that manner, by the attorney of the executors, and is, therefore, estopped from claiming its restoration to the fund by the surviving executor. These, at least, I understand to be the grounds he takes.

It is undoubtedly a sound legal rule that one executor or trustee is not responsible for the wrongful act of his co-executor or trustee where he does not assent, or contribute, thereto, or concur therein. Sutherland v. Brush (7 Johns. Ch., 17), and the converse of the proposition is equally well settled. But, I apprehend^ this case does not present the question as to whether one executor is liable, under a given state of facts, for the devastavit of his co-executor.

Mr. Barker appears to have been the trusted counsel of the deceased and of his executors. He was regarded by them,—by some, if not all, of the beneficiaries,— and, perhaps, by all who knew him, as a man of integrity, and skilled in affairs. His career presents no new phase of life or character. A genial, kindly, careless, improvident man, trusted by everyone, and unworthy of such trust. The executors, therefore, very naturally entrusted him with the management of this large estate. I look in vain for evidence of any facts tending to show that one of the executors more than the other contributed to the placing of the funds in his hands and under Ms management. The proceeds of the judgment against Sidney S. Blackwell and the ■twenty thousand dollars cash, as part proceeds of sale ■of 196 Broadway, and the seventy thousand dollar mortgage, seem to have all passed at once into his hands. There is no more evidence that the deceased executor received any of the money, than there is that the surviving executor did. It was taken by Mr. Barker by their mutual consent. In fact, S. S. Blackwell’s share, over which he had no control as executor, must have passed into Barker’s hands by the assent only of .Mr, Brown, as he was sole executor and trustee as to that share. They were both present when the Blackwell judgme'nt was paid, and executed a satisfaction piece for the same. Again they were both present at the sale of the Broadway property, and executed a ■conveyance thereof when the twenty thousand dollars ■was paid, and the seventy thousand dollar mortgage was given. It is probable that Mr. Brown deferred somewhat in the conduct of the affairs of the estate to his co-executor, who was a brother of the deceased. But Mr. Brown had been a business partner of the deceased, and he knew that the testator especially desired that he should aid in managing the estate; and he also must have known the further fact, which I gather from the evidence before me, that Sidney S. Blackwell was somewhat improvident in the management of his own .affairs. It was therefore plainly his duty to interpose, when he had reason to apprehend loss to the estate, .and prevent it, if possible. But no one, at the time of .Sidney’s death, seems to have suspected there was ■danger of any such loss. The executors equally contributed to the placing of the funds in the hands of Mr. Barker, as I have endeavored to show, and it appears to me clear that Mr. Brown is just as much liable for the two thousand dollar devastavit as if he himself had invested the amount improperly and lost it. The maxim “ quifacitper alivrn, per seipsumfacere videturf I can but regard as applicable here. Shortly after the purchase of the bonds, in violation of the directions in the will, Mr. Brown knew of the investment. There is no evidence that he made any objection, and Ms assent must be presumed. Indeed, for six years after the fact came to his knowledge, he acquiesced in the mode of investment) and made no effort to restore the money to the purposes of the trust (Styles v. Guy, 1 Macn. & Gord., 422).

That Mrs. Baylies assented and received the interest directly from Mr. Barker, through her husband or Miss Harriet S. Baylies, her daughter, can make no difference, in so far as the loss is concerned. There is no foundation for an estoppel in pais. She was not sui juris (Penman v. Slocum, 41 N. Y., 53).

The loss to the fund did not occur because of the investment in a mode not authorized by the will, but as a result of the insolvency of the agent. Mrs. Bay-lies, is only interested in the fund during her life, and neither her consent nor the consent of her children, as to the mode of investment, and the person by xvhom it was invested, can, in any event, affect those entitled to the fund at her death. Mrs. Baylies probably knexv very little about the affairs of the estate and their management. She was not familiar xvith business matters, and relied, doubtless, upon those upon whom the law devolved the responsibility in that regard, and the law is invoked for the protection of her rights, and it should not fail her.

Some stress is laid upon the fact, by the counsel for the executor, that Mr. Brown, after the death of his-co-executor, repeatedly called on Mr. Barker to render to him a statement of the condition of the estate, and that Mr. Barker put him off and evaded his requests, as evidence to show that the executor strove to do his duty. Ordinarily, this conduct of the agent would tend to excite suspicion, and wás a just ground for the exercise of vigilance on the part of the executor. If the conduct of Mr. Barker, in this respect, caused a passing apprehension of something wrong, it was doubtless allayed by the reflection that he was a man of high character. But, after all, I can not see, in the view I take of the case, that this point is entitled to any weight. Mr. Barker, after the death of the co-executor, became the agent of the surviving one, and he must be held responsible for his acts. It results from the very nature of the office of a trustee that it can not.be delegated to others, being of a strictly personal and fiduciary character (Turner v. Corney, 5 Beav., 517). So that the trustee is himself responsible for the faithful conduct and competency of all his subordinates and assistants, whether strangers, attorneys, or contractors (Lewin, 2045; Chambers v. Minchin, 7 Vesey, 196; Langford v. Gascoyne, 11 Id., 333; Robertson v. Armstrong, 28 Beav., 123). Mr. Brown recognizes his liability for the other loss of six thousand dollars. I fail to discover any distinction as to the manner in which that sum and the two thousand dollars were lost that can in any way enure to the-benefit of the executor.

Counsel for the executor has submitted a very able-brief, and has, among other things, called attention to the case of Banks v. Wilkes (3 Barb. Ch. R., 99). The facts in that case are substantially as follows: Charles Wilkes was banker for James Campbell, who died leaving funds in the banker’s hands. By Ms will he made Ms sister, Miss Campbell, sole legatee and executrix. Wilkes then acted as her banker, and invested of the funds which the testator had in his hands at Ms death, fifteen thousand dollars on bond and mortgage for Miss Campbell. Wilkes died leaving a will in wMch he appointed an executrix and executors, oi whom Horatio Wilkes was one, and the bond and mortgage came into his hands among the other assets of Ms testator. He rendered accounts to Miss Campbell headed “with estate of Charles Wilkes,” and he repeatedly gave his written acknowledgment that he held them for her. She received the income from Mm. He afterwards received and lost six thousand dollars of the fund, and died insolvent.

All the executors assented that Horatio should take and manage the estate of his farther, and Miss Campbell’s fund thus came into his hands. The assistant Y. C. says; “I do not discover any breach of trust in this circumstance. There is no proof that the defendants agreed to intrust the control and management of Miss OJs securities to HoraMo. They were simply passive, suffering them to pass into his custody.” I do not perceive any analogy between that case and the one under consideration. Here the agent is not one of the executors, as was the fact there, nor was the executor “simply passive” in the disposition of the funds, any more than was his co-executor. Both concurred in the mode in which the estate was managed. As the surviving executor was sole executor of Mr. S. S. Blackwell’s share of the estate, and as that share went into Mr. Barker’s hands, the conclusion is irresistible that it went there with the full knowledge and assent of Mr. Brown. At aH events, there can be no reasonable doubt that all of the funds of the estate were received by Mr. Barker with his full knowledge and assent, and it is certain that they remained there for six years after he became sole executor, with Ms like full knowledge and assent. If he did not originally take any active part in placing the funds in Barker’s hands, he permitted him to receive, in 1868, two years after the death of his co-executor, the large balance of about fifty-six thousand dollars due on the seventy thousand dollar mortgage, and to manage and control the funds of the estate as his agent. I do not think the fact testified to by the executor, that all the parties wished Mr. Barker to manage the estate, entitled to much consideration. The language of the witness was very general, but even if he could have specified every one of those interested, it could scarcely avail him. There were married women and children, among others, interested in a nearer or more remote degree ; and many of them. They could suggest and advise, and the executor could adopt or reject, as he saw fit. The responsibility was upon him. It would have been a clear violation of duty for him to follow crude suggestions leading to disaster. Still, in a proper case, he might avail himself of an estoppel; but, as has already been remarked, I see no facts upon which he can base one in this case. It results from these views that the executor can not escape liability for the two thousand dollars. It should be restored to the fund, and Mrs. Baylies has a right to such interest thereon as has not already been received by her from Mr. Barker. It appears that his last payment of interest was in January, 1872.

The credit claimed by the executor for two thousand five hundred dollars, paid to the administrator of Mr. Barker, for legal services rendered by the latter, must be disallowed. By the evidence it is shown that Mr. Barker from time to time, as extraordinary services were rendered, received pay therefor. In simply receiving and paying over the interest and other moneys, he retained commissions which belonged to the executors. As nearly as I can ascertain the amount so received, it was about two thousand three hundred dollars, besides what he retained from the interest on the United States bonds, while he paid over to them only some seven hundred and fifty dollars. It would seem, therefore, that he thus paid himself at least one thousand five hundred dollars. If he had any legal claim against the executors, it is a little remarkable that no charges of the kind were found upon his books. The fair inference is, that in some way he was fully paid.

The other item of credit for two hundred and fifty dollars paid for clerical services in making up the account, must also be disallowed. Mr. Barker was agent for the executors. Had he been alive to render his account to his employers, he could have made no legal charge for such a service. It would have been a simple duty he owed them, to render an account of his stewardship; and the fact that his accounts were kept so loosely and carelessly as to have made the labor a very serious one, was a matter of which he could not reasonably complain. In this respect his administrator stands precisely in his place, and as his legal representative it was his duty, without charge, to furnish such account.

As to the counsel of the executor in this proceeding, however, the matter is different. It was formerly held that an executor could not be allowed any charges for making up his account, but by the act of 1863 it is declared that on every accounting the surrogate shall :allow to the executor, for services of counsel in preparing for and attending upon the accounting, not to exceed ten dollars per day. I think that the making up of the account is fairly embraced in this provision. In many, perhaps most, cases, the only preparation is in making out the account. The executor will be allowed for such services when the proper evidence shall be presented.

I think this court has no right to take cognizance of the separate fund in which Mrs. Rea is interested as cestui que trust. The trust relates solely to real estate. At common law, on the death of the trustee, it would have devolved on the heir (Attorney-General v. Lady Downing, Wilmot’s Opinions, 21; Berrien v. McLane, Hoffm., 421). In Hall v. May (3 Kay & 585), it was held that “where the deed of settlement devolves upon the trustee, Ms heirs or assigns, it has finally been considered that this implies that the trustee may devise the estate to any one he may deem more M to execute the trust than the heir, and that such devisee may not only hold the legal estate, but also-execute the trust.” This was so held where the common-law rule prevailed. By our statute of uses and trusts, however, it is provided that “upon the death of the surviving trustee of an express trust, the trust estate shall not descend to' his heirs, nor pass to his personal representatives; but the trust, if then unexecuted, shall vest in the supreme court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose, under the direction of the court ” (3 B. B. 22, § 87, 5th ed.). The common-law doctrine has thus been abrogated (Hawley v. Ross, 7 Paige, 103 ; Glen v. Gibson, 9 Barb., 634; Bunn v. Vaughan, 1 Abb. Ct. App. Dec., 253 ; Milbank v. Crane, 25 How. Pr., 193). The-trust was unexecuted when the testator died, and at Ms death vested at once in the supreme court. That court, in the discharge of its duty, appointed Mr. Brown to execute the trust, and it has sole and exclusive jurisdiction over him, his conduct and accounts.

In view of the alleged difficulty of adjusting the accounts properly, because of the intermingling of the two funds, it is suggested that it is doubtless competent for Mrs. Rea in so far as her separate trust is concerned, to acquiesce in the result of this accounting, if she shall be so advised.

A decree must be entered in accordance with the. views above expressed. December 21, 1874.-  