Majority
p. 638Matter of the Judicial Settlement of the Accounts of Joseph Lamb, as Administrator of Peter Rennie, Deceased. (Surrogate’s Court, Westchester County, December, 1894.)
Headnote
If the tenant for life makes improvements upon the premises, he cannot claim compensation therefor from the reversioner or remainderman. Mere knowledge by the remainderman of such an addition or improvement is not sufficient to render it a proper charge against the corpus of the estate.An administrator with the will annexed cannot be held liable for a devastavit or misapplication of funds by his predecessor, especially after a decree settling the.accounts of such predecessor.
An executor, notwithstanding an accounting and discharge, remains liable to account to parties interested in the estate who were not made parties to the accounting, and to refund to them their share of funds misapplied by him.
The testator by his will gave the use of all his estate, real and personal, to his wife, Agnes, during her life. He then provided as follows: “ I also give and bequeath, upon the death of my wife, to Joseph Lamb, six thousand dollars; to his' son, Osborne Rennie Lamb, three hundred dollars; to Rennie Pierre Schwerin, three hundred dollars; to Rennie Bell Dalston, three hundred dollars; to Agnes Rennie Lamb, three hundred dollars; to Peter Cummings, my executor hereinafter named, five hundred dollars as a small acknowledgment to him for his services as my executor, but none of these legacies shall become due or he paid until after the death of my wife.
In the next clause he gave his wife a power of appointment as to one-half of the residue of his estate, and then proceeded to dispose of it in case she died intestate, but she exercised the power. As to the other half he provided as follows: “ The other half of the whole I devise and bequeath as follows: Five hundred of it to be given, after my wife’s death, to my niece, Agnes Drew; the balance of it to be equally divided between my nephew, William Drew, and' my niece, Ellen R. Drew, to have and to hold the same unto them, their heirs and assigns forever, this division to take place only
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upon the death of my wife.” He appointed his wife and Peter Cummings executors, with a power-of sale. He died in March, 1870, and the will was proved and letters issued to the executors in April following. In 1875 the widow, occupying the dwelling house and lot of the deceased, caused an addition something like a bay window to be made to the house at a cost of $992.56. In 1879 Cummings, the executor, filed a petition praying for an accounting and a citation to the executrix to attend the same. Ho other person was named in the petition or cited. It resulted in a decree which fixed the balance in his hands, less costs and commissions, at $17,826.97. The above sum of the cost of the addition was embraced in the credits allowed. In 1890, on an application to resign, he rendered another account, charging himself with the above balance, all persons interested being cited except the Drews and the representatives of Robert Rennie, then deceased, who were not named in the petition. It resulted in a decree fixing a balance of $16,901.60, which was directed to be paid to the executrix, and upon such payment being made his resignation was accepted, and he was discharged from all further liability. In April, 1891, on a petition filed, an order, was made permitting the executrix to resign on rendering her account and paying to her successor, when appointed, the balance in her hands. Her account was filed the same day. In the same month Joseph Lamb filed a petition, praying to be appointed administrator with the will annexed, and was qualified and so appointed in June following.
John, Henry Hull, for administrator.
J. C. O' Conor, for contestant Rennie.
Hoot c& Clarice, for contestant Agnes Leech.
Serious irregularities seem to have accompanied the proceedings in regard to this estate. In the first place the executor caused only the executrix, the life tenant, to be cited on his accounting in 1879, in which he claimed and was allowed a credit of $992.56, as the cost of the addition or bay
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window. All interested parties should have been cited, and thus had an opportunity of objecting to it. The allowance of it affected all the subsequent accountings, down to and including the present one, where it is, for the first time, questioned. Neither Robert Rennie, brother and next of kin of deceased, now dead, nor his personal representatives, nor the Drew children, or their personal representatives, were cited on any' of the accountings preceding this. The Drew children all died anterior to the death of the widow, and as their legacies were not given them until the death of the widow, they did not vest, but lapsed. Warner v. Durant, 76 N. Y. 133 ; Smith v. Edwards, 88 id. 92. BEence their representatives have no interest in this matter, the amounts of their several legacies passing to the next of kin of the testator, among whom are the children of Robert Rennie, the contestant, Agnes Leech being one of them. Their right to appear in person, instead of by the executor or administrator of their deceased father, is not questioned by the learned counsel for the administrator, although it became a part of his estate to be administered. However, as the point has not been made, they will be treated as proper parties. As such, they object to the credit allowed to the executor Cummings for the money paid by him. as the cost of the addition to the dwelling house. That objection, in the abstract, must be regarded as well taken. If the tenant for life make improvements upon the premises, he cannot claim compensation for the same from the reversioner or remainderman, though he is under no legal obligation to do more than keep the premises in repair. 1 Wash b. Real Prop. (3d ed.) 110, par. 24, citing Corbet v. Lawrence, 5 Rich. Eq. 307 . The same rule, on like facts, applies as between landlord and tenant. A mere knowledge by the remainderman or reversioner of such an addition or improvement, which is alleged in this case, is not sufficient to render it a proper charge against the corpus of the estate.
There must be evidence of their assent that it be so charged. There might be cases where an expenditure should be apportioned between the life tenant and remainderman, as wheré
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an improvement, which is beneficial to both, is made under the direction of the public authorities, but not where it is voluntarily done by the life tenant' for his own comfort or convenience. Still, it is not intended here to say that the administrator with the will annexed can be held liable for the devastavit, the misapplication of funds, by his predecessor, and especially after decree settling his accounts. In England, by the statute 30 Car. II, chapter 7, it was enacted that if an executor de son tort wastes the goods and dies, his executor shall be liable in the same manner as his testator would have been if he had been living. And it was afterwards adjudged that a rightful executor, who wastes the goods of the testator, is, in effect, an executor de son tort for abusing his trust (3 Mod. 113), and his executor or administrator is made liable to a devastavit by statute 4 and 5 William and Mary, chapter 24. But I know of no such statute or ruling of the courts in this country. We hold, on the contrary, that even the fraud or negligence of one executor, who has thereby committed waste, is not chargeable to his co-executors unless they, in some way, contribute thereto, or might have prevented it by the exercise of due vigilance. It would be clearly unjust to hold a successor personally liable for the waste of any of his predecessors. Reither their father nor the .present contestants were made parties to that first accounting proceeding, nor any of the subsequent ones, and hence, it is believed that, notwithstanding his various accountings -and discharge, the executor Cummings is still liable to account to these contestants, and to refund to them their share of the funds so misapplied by him. Their remedy is not against the administrator in this proceeding.
The executor Cummings was bequeathed a legacy of $500 “ as a small acknowledgment for his services as my executor,” but not payable until after the death of testator’s widow. It is not expressed to be in lieu of his commissions, and I think he is entitled to them in addition.
The interest received by the accounting party since the death of the life tenant, if any, must be accounted for here.
Ordered accordingly.
Cases cited
- Warner v. Durant 76 N. Y. 133 p. 640