In re Rust's Estate — 3 N.Y.S. 308

Majority

p. 308

In re Rust’s Estate.

(Supreme Court, General Term, Second Department.

December 13,1888.)

Headnote

1. Executors and Administrators—Liabilities—Acts op Co-Executor.

A petition for the settlement of the executorial accounts cannot be maintained by a legatee against the surviving executrix, who never received any of the assets, the same being exclusively controlled by her co-executor, and who has been guilty of no negligence or bad faith.

2. Same—Settlement—Consent Order—Failure to Enter.

It is a good defense to such a petition that the petitioner and the deceased executor accounted before the surrogate, the executrix joining therein, and that a full settlement was then made, while said executor was solvent, which settlement had been for many years acquiesced in, and that, by a stipulation in writing then made between the accounting parties, an order was to be entered approving the account, though such an order was never entered.

Appeal from surrogate’s court, Kings county.

Maria E. Brundage filed her petition asking that Theresa L. Rust be required to render her account as executrix of the will of John P. Rust, deceased, under which the petitioner was a legatee. The executrix filed an answer to which a demurrer was sustained, and she appeals.

Argued before Barnard, P. J , and Dykman and Pratt, JJ.

James cB Thos. H. Troy, for appellant. Richard B. Greenwood, Jr., ( Walter L. Livingston, of counsel,) for respondent.

The answer of the defendant herein, which is admitted by the demurrer, sets forth two good defenses to the claim of the petitioner, to-wit: (1) That she never assumed or exercised any control over the estate of John P. Rust, or received any of the assets thereof as executrix, but that the same was exclusively managed and controlled by her co-executor, Rodolphus B. Johnson; and (2) that a full settlement has been had with the petitioner, and such settlement executed, and a final accounting had in the surrogate’s court. These defenses fully meet the allegations of the petitioner, so far as this petition is concerned. There is no statement in the petition of negligence or bad faith on the part of the defendant, and no claim that any funds have come into her hands since said settlement.

It would be manifestly unjust to hold the defendant responsible because she consented to or joined in the accounts as filed by her co-executor, as she was induced to take that course at the solicitation of the petitioner, and the more so as it is admitted that the co-executor was pecuniarily responsible at the accounting, and afterwards died insolvent. The fact that such account was not approved and passed by the surrogate is not material. The parties to the accounting consented to the entry of such an order, and this was as binding upon such parties as if the order had been entered. The parties have acted upon

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the faith of these proceedings for a long time, and are estopped from now questioning their validity, as against each other.

It follows that the order must be reversed. All concur.