Opinion
Argued March 16, 1882
Decided March 21, 1882
Charles N. Black for appellants.
Henry J. Schenck for respondent.
John Paulding by his will appointed William Gardner, James R. Marvin and James Sharkey his executors. They were authorized and empowered to sell his real estate, either at public or private sale, for such price as they deemed best, and execute deeds or conveyances therefor. He died; the persons named as his executors qualified, and undertook the duties of their office. Real and personal estate came into their hands. The personal estate was of little value and no question in regard to it arises here. The real estate was sold to one Phillips; all the executors joined in the conveyance, but the price was paid by the purchaser by his check, payable to the order of James R. Marvin, and delivered to him. He indorsed and delivered it to his co-executor, Wm. Gardner. He also indorsed it and received the money. Gardner died, and thereafter in November, 1877, James Sharkey and James R. Marvin, as surviving executors, sought an accounting before the surrogate. Objections were filed by the appellants, but after examination the account was settled and allowed by the surrogate and a decree made, exonerating Marvin and Sharkey, and declaring that the estate of William Gardner was alone liable for the balance remaining in his hands, or for any moneys of the estate of John Paulding.
Upon appeal to the General Term the decree was affirmed; and the appellants now seek to review the judgment so far as it is in favor of Sharkey.
By the account submitted to the surrogate, it appears that the money in question never came to the hands of Sharkey. There was on his part the exercise of good faith in the execution of his trust. The co-executor had an equal right with Sharkey to possession of the money, and it came into his hands, therefore, without fault on the part of the respondent. Nor is there any thing in the case which should make him liable for the subsequent acts, or the default of his co-executor in relation thereto.
The earlier cases in regard to the liability of one trustee who had joined in a deed with his co-trustee, but who in fact received none of the purchase-money, were considered in Monell v. Monell (5 Johns. Ch. 283), and the question relating to the liability of one executor for moneys received by his associate, has been fully discussed in the case of Croft v. Williams, recently decided by this court, and the conclusion reached that such joint act, when necessary and only formal, is insufficient of itself to impose such liability. Within the principle there laid down, the decree of the surrogate was proper. It is sustained by the evidence, and as no rule of law was violated, the judgment of the General Term approving it should be affirmed.
Ante, p. 384.
All concur, except ANDREWS, Ch. J., absent.
Judgment affirmed.