Majority
p. 540In the Matter of the Administration of the Estate of Abigail Hall, Deceased. (Supreme Court, General Term, Second Department, Filed February 13, 1888.)
Headnote
1. Administrator—When not liable for devastavit of associate. 'An administrator is not responsible for a devastarit made by his co-administrator, he being at the time of the improper use of the property, ignor ant of that fact.
2. Same—Not required to investigate action of associate.
An administrator is not reqired to investigate the action of his co-administrator.
Appeal from an order of the surrogate of Westchester county, dated March 4, 1887, denying an application of Agnes Hall for an order directing Jane E. Kelemen, the respondent, to pay to the petitioner the sum of $11,188.23, with interest from the 2d day of May, 1877, and for other relief.
Abigail Hall died intestate, leaving the respondent and six children of a deceased daughter (among whom was this petitioner), as her only heirs-at-law and next of kin. Mrs. Kelemen associated with her John W. Mills, her mother’s counsel, in the administration of the estate, June 20, 1872. The bulk of the estate was the interest of Abigail Hall in the estate of her husband James Hall. John W. Mills received all the moneys due to the estate, and at all times had them under his exclusive control; this respondent having taken no active part in the administration. The final accounting of said administrators was had before the surrogate of Westchester county on their application presented in October, 1873, to which proceeding this petitioner was a party, and the decree of settlement was made, dated May 2, 1877. A special guardian for the petitioner (then a minor), was duly appointed and appeared for her therein. The account presented, shows “ balance in hands of administrator, to be distributed to those entitled thereto hereinafter stated, $36,280.03;” on the application of Charles A. Hall, the said decree was amended as relating to him, by order of the surrogate, February 24, 1882, granted by default. Mrs. Kelemen moved to open the default, but the motion was denied on the ground of loches. John W. Mills represented himself to be the general guardian, of the petitioner at the time of the decree in 1877, and all parties to the accounting acted upon the belief that such was the fact. Mrs. Kelemen then and always fully believed that he was such general guardian, and on inquiry of the surrogate of Oneida county, in October, 1880, was reassured in such belief by his certificate of the appointment of said Mills as her guardian, on Decern
p. 541
her 19, 1873. It now appears that he was not in fact such guardian.
C. Garskaddan, for app’lt, Agnes Hall; Townsend Wan- dell, for resp’t, Jane E. Kelemen.
The controlling question is well discussed in the opinion of the surrogate, and his decision is correct.
The respondent is not shown to be in any manner responsible for the devastavit.
The most that can be said against her is that she failed to exercise any supervision of the proceedings of her co-administrator.
Under the settled rules she was not required to investigate his action.
It appears clearly that she had full confidence in his capacity and integrity, and his position at the bar and in the community afford abundant justification for her favorable opinion.
The decree of the surrogate is affirmed, with costs.
Barnard, P. J., and Dykman, J., concur.