Opinion
10-16-1892
WEYMAN v. THOMPSON et al.
C. T. Atkinson and Mark L. Sooy, for complainant. J. H. Gaskill, for defendant Wilson, C. E. Hendrickson, for defendant Kemble and Monument Cemetery Association.
Bill by Joseph Weyman against Henry C. Thompson, Jacob Wilson, James E. Kemble, and others, to charge defendants, as executors of Christian Weymau, for wasting the funds of the estate. Decree in complainant's favor.
C. T. Atkinson and Mark L. Sooy, for complainant.
J. H. Gaskill, for defendant Wilson, C. E. Hendrickson, for defendant Kemble and Monument Cemetery Association.
MCGILL, Ch. Christian Weyman, of Beverly, in Burlington county, died on the 26th of May, 1882, having made his will on the 14th of February, 1879, and a codicil to it on the 27th of May, in the same year. By the will he appointed the defendants Henry C. Thompson, Jacob Wilson, and James L. Kemble its executors, directing that they should not be required to give security. It was drawn by James L. Kemble, one of the executors, who for more than 30 years had been a justice of the peace in Burlington county. Henry C. Thompson, another of the executors, was a lawyer in Philadelphia, who, when the will was made, and until the year 1890, was reputed to be of considerable wealth and of undoubted integrity and ability. He was prominently connected with the management of two trust companies, and was also executor or trustee of several estates. His residence was in Philadelphia, but he had a summer home on the Delaware river, at Beverly. For several years before Mr. Weyman's death he was Mr. Weyman's legal adviser and business agent, attending to his investments and the collection of the income there from, and rendering such legal assistance as from time to time was required of him. When Mr. Weyman died all his securities and valuable papers were in Mr. Thompson's possession. Jacob Wilson, the third executor, was the treasurer of a church board of education. He resided in Beverly, and attended daily to his business in the city of Philadelphia. The acquaintance and friendship between him and Mr. Weyman originated in their mutual interest in Sunday school matters. He was frequently the messenger between Mr. Thompson at Philadelphia and Mr. Weyman in Beverly, and understood that for a long time Mr. Thompson had been Mr. Weyman's legal adviser. The testator left his widow and one son, his only child, surviving him. That son, Joseph Weyman, is the complainant.
The will provided that, immediately after the testator's death, $100 should be paid to his son, and $200 should be paid to his widow; that the executors should set apart $10,000, invest it, and hold the investments in trust, and pay the income there from to his widow for her life; that the widow should also during her life have the use of a certain house, with some land adjoining it; that such provisions should be in lieu of dower in his real estate; that upon her death the use of the house and land given to her for life should go to his son, for his son's life; that the testator's household furniture should go to his son; that $10,000 should be held in trust by the executors of the will, and the income thereof paid to the son for his life, and, upon his death, the principal should be divided and paid among his issue, and, in default of such issue, to certain persons who were named in the will; that certain real estate should go to the Methodist and Baptist churches of Beverly, when the testator's widow should die; that $500 should be paid to Phcebe Rihl, and $500 to Louise Osraan, and $500 to the wife of Lewis Weyman, subject, however, to there being sufficient estate to provide the two trust funds of $10,000 each, to be invested and held for the widow and son; that certain lots in the Beverly Monument Cemetery, except six, which were reserved for the testator's own burial plot, should go to the cemetery, and be sold by it to raise a fund, which should beheld in trust, and the income forever devoted to the care of the testator's burial plot and the avenues of the cemetery; that, upon the death of his widow, $3,000 should be expended to put a wall, of specified dimensions and character, in front of the cemetery; and that the residue of the testator's estate should be divided between the Old Man's Home and the Penn Asylum for Indigent Women, in Philadelphia, upon indicated trusts.
On the day when the testator died, whenMr. Wilson arrived in the evening from Philadelphia, he was notified of the death, and, after conference with Mr. Thompson, he arranged the details of the funeral. He had then heard that he was an executor of the will of Mr. Weyman. About that time, also, he took possession of $400 of Mr. Weyman's money, and expended it in paying the wages of the decedent's nurses, the expenses of the funeral, and the legacies of $100 and $200, respectively, to the complainant, Joseph Weyman, and his mother. He paid out more than the $400, and was reimbursed the excess in his payment by Mr. Thompson from funds of Mr. Weyman that Mr. Thompson then controlled. After these payments had been made the will was proved before the surrogate of Burlington county, all three of the executors joining in the written application for probate, and in the usual executor's oath when probate was granted. Letters testamentary were Issued to all three of them. Mr. Wilson testifies that it was not his wish to qualify as an executor, but that he was induced to do so by Mr. Thompson, who assured him that he should not be troubled with the management of the estate. It is noted, however, that there is no evidence that the reluctance which Mr. Wilson now asserts was expressed by him to any beneficiary under the will prior to the present emergency. After the probate of the will, and the qualification of the executors, neither Mr. Kemble nor Mr. Wilson made any examination of the assets of the estate, or any inquiry of Mr. Thompson with reference to there, nor did they engage in the management of the estate. Mr. Thompson retained possession of the assets, and dealt with them without any hindrance from his coexecutors, or inquiry by them as to the course of his conduct. Ail that Messrs. Kemble and Wilson did with reference to the trust they assumed appears by their own testimony. At one time Mr. Kemble, by appointment with Thompson, went to Thompson's office in Philadelphia for the purpose of assisting to prepare an inventory of the assets. He met Mr. Thompson there with a bundle of papers before him, apparently engaged in an examination into Mr. Weyman's affairs. Mr. Wilson was not there, and, giving his absence as reason, Mr. Thompson stated that nothing could be done that day. Mr. Wilson testifies that he had not been notified of the meeting. It does not appear that either Mr. Kemble or Mr. Wilson sought another meeting with reference to an inventory. At another time, which is not given, Mr. Kemble received a letter in behalf of the Old Man's Home, one of the tesituary legatees, asking for payment of the legacy to that institution, and, in response to it, called upon Mr. Thompson, and urged him to pay the legacy. At another time, or at other times, other legatees applied to Mr. Kerabla for payment, and he went to Mr. Thompson to see if they could not be paid, but failed to obtain any satisfaction. Mr. Kemble testifies that, three weeks after the death of the testator, Joseph Weyman applied to him for payment of income, to which he was entitled, and that he (Kemble) then told Joseph that Mr. Thompson had all the assets of the estate. Once, after Joseph Weyman had importuned Kemble for money, Kemble saw Thompson, and urged the sale of some land, and Thompson replied that the land could not be sold to advantage. Mr. Wilson appears to have had such unlimited confidence in Mr. Thompson's integrity that he took Thompson's personal assurance upon every subject without question. He says that he qualified as executor after an understanding with Mr. Thompson that his doing so was mere form, and that he would be relieved from the trouble of managing the estate. He frequently told the complainant, when the complainant importuned him for money, that he had nothing to do with the estate; that it was in the hands of Mr. Thompson. At the same time he more than once spoke to Thompson about the complainant's demands, and yet he never asked Thompson as to the condition of the estate, or took any steps to ascertain that condition. This inaction upon his part was in face of the fact that he knew that the complainant's constant arraignments of Thompson for failure to pay him his income, and Thompson's surprising submission to those arraignments, was a matter of common talk.
In April, 1884, nearly two years after the probate, the three executors, at the instance of the complainant, were cited to file their inventory and account. It appears by the testimony of a constable that they were personally served with citations. Mr. Kemble, immediately after being served, went to Mount Holly, the county seat, and stated to the complainant's lawyer there that he had no control of the estate, and knew nothing about it. Mr. Wilson testifies that he was not served with the citation, but that it was left at his house, and was not handed to him until after the commencement of this suit. Mr. Thompson evidently received the citation designed for him, for he prepared an inventory and account, and signed them, and caused them to be signed by his coexecutors. He alone, however, swore to their truth. The inventory was as follows:
"Inventory and appraisement of the goods and chattels, rights, credits, and effects, of Christian Weyman, late of the township of Beverly, in the county of Burlington and state of New Jersey, deceased, made by Henry C. Thompson, Jacob Wilson, and James L. Kemble, executors of the last will and testament of said deceased, and Alfred L. Carey and Henry C. Thompson, Jr., appraisers:
| (1) Bond and mortgage of H. B. Holbrock, dated October, 1872, payable one year, with lawful int. on house and lot Broad St., Beverly | $ 1,200 00 |
| (2) Do. of H. B. Holbrock, dated March, 1873, payable in one year, with lawful int. on house and lot Broad St., Beverly | 1.000 00 |
| (3) Bond and mortgage Anna Scattergood, dated 15th May, 1865, payable five years, with interest and taxes, house and lot in Beverly, River Bank | 2,000 00 |
| (4) Do. Joseph Weyman, dated Feb. 1872, payable in one year, with lawful interest. house, Brigeboro road | 200 00 |
| (5) Do. Albert S. Kelly et al., dated Oct., 1869, payable in five years, with interest, Cooper St., Beverly | 500 00 |
| (6) Do. Elwood Wilson, dated 19th August, 1874, payable in one year, with int., prem. James St., Phila | 5,000 00 |
| (7) Bond and mortg., Elwood Wilson, dated 7th May, 1872, payable in one year, int., prems. Second St., Phila | 3.000 00 |
| (8) Do. John O. Murphy, dated August 19, 1874, payable in five years, with int., prems. Venay St., Phila | 4,270 00 |
| (9) Cash on deposit in Fidelity T. Co | 874 50 |
| (10) Cash in house of decedent at time of death | 400 00 |
| Total | $18,444 50" |
The account was riled at the same time, and was entitled: "The account of Henry C. Thompson, Jacob Wilson, and James L. Kemble, executors of the last will and testament of Christian Weyman, late of the township of Beverly, in the county of Burlington and state of New Jersey, deceased, as well of and for the estate which hath come into their hands to be administered as for their payments and disbursements out of the same." By it the accountants charged themselves with the amount of the inventory, $18,444.50, and prayed allowance for payments amounting to $1,629.61, including therein the payment of the two legacies of $100 and $200, respectively, the cost of ancillary letters to Mr. Thompson in Philadelphia, and commissions on $18,444.50 at the highest rate allowed by law. The account exhibited a balance "in the hands of the accountants" amounting to $16,814.89. The account was signed, as has been stated, by all the executors, but was verified by the oath of Mr. Thompson alone, which does not appear to have been subscribed by him. To this account Joseph Weyman filed exceptions on the ground that the executors did not account for income received, or for receipts from the sale of real estate. The exceptions were filed on the 15th of July, 1884, but nothing was done under them until the 18th of May, 1885, when, by consent of the exceptant's proctor, they were withdrawn, and thereafter, during the succeeding September term of the orphans' court, the account was duly allowed by that court's decree. Mr. Wilson states, with reference to his signature to this account, that Thompson brought it to him one day, as he was preparing to leave his place of business, and requested him to sign it, and that he then told Mr. Thompson that he knew nothing of it, and that if he signed it he would do so upon Mr. Thompson's representations, to which Thompson replied that he would be responsible for the whole thing; that it was a mere matter of form; that he needed Wilson's signature; that the complainant had a lawyer at Mount Holly, and was bothering him; and that this would settle the account, and relieve Wilson from responsibility. Upon this representation Mr. Wilson claims to have signed the account without understanding its contents or its legal effect. Mr. Kemble says, upon his part, that the account was mailed to him, and that he signed it, and returned it to Mr. Thompson. He states that when he signed it he could not help himself; that he did not consider himself worthy to stand up before a lawyer, a man of education; and that when he signed the account he did not know where the assets were and did not inquire. After the accounting, matters remained as they had existed before it. Joseph Weyman constantly complained that his interest was not paid to him, and Kemble and Wilson remained indifferent to the affairs, of the estate. Mr. Wilson asserts that he assumed that he was discharged by the accounting. In the early winter of 1890 the executors were again, at the instance of the complainant, cited to account; and in April of that year Mr. Thompson alone accounted, as "acting trustee." For in come only, charging himself with the in terest on $10,000 from 1882 to the end in 1889, and praying allowance for sundry sums paid to Joseph Weyman from time to time, amounting in the aggregate, together with the trustee's commissions, charged at' the highest legal rate, to $4,532.50, which, deducted from the income received, exhibited the balance in his hands at $280.23. Mr. Kemble says that when he was cited, in 1890, he called upon the complainant's lawyer, and stated that he had no assets of the estate. Mr. Wilson states that before the citation was received Mr. Thompson sent word to him that he would probably receive a notice, but that he (Thompson) would settle the whole thing, and that the estate would be done with. He Raid that the complainant was troubling him again, but that the whole matter was fixed up, and that he (Wilson) need give himself no trouble about it. Mr. Wilson says that this statement satisfied him so that when the citation was served . he did not ask any questions about the estate. While the account of 1890 remained unsettled, in July of 1890, Mr. Thompson went to Jersey City, and there attempted to commit suicide, but failed. Since that time he has not been heard of, and his whereabouts are now unknown. In 1881, Christian Weyman owned a house and lot on Second street, Philadelphia, used for business purposes, which was subject to an annual ground rent of $420 that could be satisfied by the payment of $7,000, and in June of that year he placed $7,420 in the hands of Mr. Thompson to pay the current year's ground rent, and satisfy the ground rent for the future. Mr. Thompson did not satisfy the ground rent for the future, and relieve the property of its charge; consequently, after Mr. Weyman's death, the property was sold because of the nonpayment of current ground rent, although it yielded about $1,200 a year to the estate. It had cost Mr. Weyman about $20,000. It realized at the sale $1,000. It also appears that Mr. Thompson alone proved the will in Pennsylvania; and that on the14th of March, 1883, he sold the $5,000 mortgage made by Elwood Wilson, which appears in the inventory, and converted the moneys realized from the sale to his own use; and on the 25th of June in the same year sold the Murphy mortgage, appearing in the inventory, for $4,270, and on the 24th of February, in the same year, received payment of the Elwood Wilson mortgage for $3,000, and satisfied that mortgage of record. It must be noted that it was after these assignments and satisfaction that the mortgages were inventoried as existing securities. Of the mortgages inventoried all that now remain are the mortgage given by Scatterwood for $2,000, and the mortgage given by Joseph Weyman for $200. In addition to these two mortgages, there appears to be a mortgage for $800 given by one Smith to the three executors as trustees under Mr. Weyman's will in June, 1890, and a mortgage of $600 assigned by Joseph Weyman to the three executors. The remaining assets have not been traced. The widow of the testator died on the 20th of January, 1888, and thereafter Mr. Thompson paid to the Beverly Monument Cemetery, in several payments, $3,094.12, on account of the wall that was erected in front of the cemetery. All these payments were made in the year 1888. It appears, also, that Mr. Thompson made several payments to the Old Man's Home and the Penn Asylum for Indigent Females, aggregating, in all, $950, to the Old Man's Home, and $927.97 to the Penn Asylum. The payments to these two institutions were made between the year 1884 and the year 1890. On the 3d of February, 1885, he paid Louise Osman $551 in satisfaction of her legacy, and on the 14th of the same month paid a like amount in satisfaction of the legacy to Elizabeth, the wife of Lewis Weyman, and at another time, not stated, paid $475 to Phoebe Rihl. No other payments by him have been traced.
The payments of income to the complainant were invariably made by the individual checks of Mr. Thompson, drawn upon different banks of Philadelphia, and, although they exhibited to the complainant that his income was kept in Mr. Thompson's individual bank accounts, the complainant made no objection or protest. It appears that at one time the complainant took one of these checks to Mr. Wilson, who gave him the cash for it, and thereby became aware that Mr. Thompson was mixing, at least, the income of the trust moneys with his own moneys in his individual bank account. It is very clear that, if Messrs. Kemble and Wilson had examined into the condition of Mr. Weyman's estate when they qualified as executors, they would have discovered Mr. Thompson's receipt for the $7,420 paid to him in 1881 to satisfy the ground rent charged upon the property in Philadelphia, and that that discovery would naturally have led them to Inquiries which would have precluded their subsequent confidence in him; and that if, when the inventory and account of 1884 were presented for their signatures, they had demanded inspection of the assets with which they were about to charge themselves, at least the nonexistence of the three mortgages that had been disposed of in 1883 would have appeared Upon both these occasions their attention was plainly directed to their duty. Upon the first of them they were fresh from a solemn oath that bound them to an expressly defined course of conduct, which could not he pursued without accurate knowledge of the estate, and on the second occasion they were sharply reminded by citation of a neglected duty and a violated oath. They were then most plainly made aware that the man in whom they had reposed confidence was negligent and unmindful of that which he had sworn to do. Then came repeated complaints from a beneficiary of the trust that he was not paid. It is true that those complaints lost force because they most frequently came from the lips of a drunken man, yet Mr. Thompson's submission to them awakened a suspicion which even the common talk of the street did not disregard. Added to these particulars, in the case of Mr. Kemble, was the circumstance that other legatees complained that the will was not executed, and, in the case of Mr. Wilson, the fact that he cashed a check which exhibited an intermingling of trust funds with private moneys of Mr. Thompson. Messrs. Kemble and Wilson in their defense insist, in the first place, that the complainant, by acquiescence in Thompson's exclusive management of the estate, and delay in securing the enforcement of his rights, has lost his claim upon the assistance of a court of equity; and, in the second place, that they have not been guilty of that gross negligence or supine indifference which must exist to render them liable for the complainant's loss. Pausing for a moment before discussing the questions presented by this insistment, I will consider the effect of the joint accounting by the executors. By their account they charge themselves jointly with the amount of the inventory, and they discharge themselves of only a fractional part of that amount. "The law is well settled in this state," said Chancellor Williamson in Laroe v. Douglass, 13 N. J. Eq. 308. 310, "that when executors exhibit for settlement a joint account, and when by the decree of the orphans' court such account is finally settled and allowed, the executors are jointly charged with the balance thus ascertained to be in their hands. The decree is in the nature of a judgment." It follows that in such a case parties interested may rely upon the decree, and need not inquire which of the executors has custody of the funds. They are each and all liable for the safe preservation of them. This rule is well settled in this state. Bellerjeau v. Kotts' Ex'rs, 4 N. J. Law, 410; Fennimore v. Fennimore, 3 N. J. Eq. 292; Schenck v. Schenck, 16 N. J. Eq. 174; Suy dam v. Bastedo, 40 N. J. Eq. 433, 2 Atl. Rep. 808; English v. Newell, 42 N. J. Eq. 76, 6 Atl. Rep. 505, on appeal 43 N. J. Eq. 295, 14 Atl. Rep. 811; Tehan v. Maloy, 45 N. J. Eq. 68, 16 Atl. Rep. 686.
But it is also established that it may be shown, when the enforcement of the liability under the account, which purports on its face to be joint, is sought, "thatthe account, in fact, was a separate, and not a joint, one. In Fennimore v. Fennimore, supra. Chancellor Vroom said: "It has been decided in this court in more than one case that where executors account jointly, without specifying the amount of receipts and disbursements by each, and showing the balance in each one's hands, they are all concluded and bound. The decisions rest on the principle that the decree of the orphans court upon a final settlement is in the nature of a judgment, and that, after such judgment, the parties cannot be permitted to set up any matter in avoidance of its operation. Such was the decree in this court in the case of Philemon Dunn et al. v. The Executors of Gershom Dunn, deceased, [reported in footnote on same page, J in April term, 1829. The decree, however, was subsequently reversed in the court of appeals in the last resort, and upon that point, and the reversal was calculated to unsettle the course of decision on this important question." In that case the account was in two parts. The first part stated a general account of all receipts and disbursements, and the second part stated the particular receipts and disbursements of each executor, and the chancellor thought that the object of such double statement, was to show the amount of assets in the hands of each executor, and to have their separate liabilities adjusted and sanctioned by judicial authority, and it was therefore considered as separate accountings. In Beatty v. Trustees, etc., 39 N. J. Eq. 452, four executors acccounted, charging themselves with face value of uncollected securities as good. The account appeared on its face to be joint, and, crediting all legacies as paid, exhibited a balance in the hands of the executors. The chancellor held that the executors were bound by the account, and must answer for the full value that it represented to be in their hands. He, however, considered testimony designed to show that they had not all taken part in the accounting, and held that it did not establish that fact. Upon appeal (41 N. J. Eq. 563, 7 Atl. Rep. 338,) the chancellor's decree was reversed, the court of appeals holding that it nowhere appeared on the face of the account that it was final, and that the proofs established that two of the executors made the account, and that the other two executors were not cognizant of the accounting. The account was therefore held not to be binding upon any of the executors. In English v. Newell, supra, the two executors were present when the account was made and when it was filed. It purported to be their joint account; nevertheless it was held, both in this court and in the court of errors and appeals, that it might be shown that the account was neither joint nor final, and that one of the executors was not bound by it because he had not controlled or managed any of the assets and had no account to make. In Tehan v. Maloy, supra, two executors filed an account which purported on its face to be joint, and both of them swore to it. It appeared also to be a final account. On suit brought to enforce liability upon the part of both executors, one of them defended, setting up in her answer that her coexecutor had controlled all the assets, managed the estate, and prepared the account, and that the defending executrix had signed the account merely because she had been requested by her coexecutor to do so. The case was presented upon an appeal from a decision of the master overruling testimony offered to prove the allegation set up in defense. The vice chancellor. Van Fleet, held that it might be shown that an account, which on its face appeared to be joint, was in fact not joint; that is, that one or more of the executors did not swear to it or participate in having it filed and allowed. But, referring to the situation in that case, the vice chancellor said: "No fraud is charged in the answer in this case; no mistake is alleged. So far as appears, Mrs. Maloy, in signing and swearing to the account, was not tricked by representations of any kind into doing something which she would not have done if no representations had been made; nor does she even claim or pretend that she acted without comprehending or fully understanding what she was doing. The statement of her answer at this point, in substance, is that, with full knowledge that the whole of the estate was in the possession and under the control of her coexecutor, she, on the simple request of her coexecutor, voluntarily, and without the practice of deceit of any kind, joined with him in the account, charging herself, jointly with him, with the whole estate. With her answer in this form, it is impossible for me to see that none of the testator's securities were ever in her custody or possession. Her liability, according to the well-established rule, rests, not on the fact that the assets were in her possession or under her control at any time she charged herself with them, but solely on the ground that she and her coexecutor have jointly charged themselves with them. Her liability grows out of her admission made in indicio, and the judicial sentence pronounced thereon."
The proofs in the present case clearly show that Mr. Kemble never controlled or managed assets of the Weyman estate, and that he had no account to make, and that, save the receipt and disbursement of $400 as stated heretofore prior to the proof of the will, Mr. Wilson is in the same situation. Under the ruling in this state, then, no liability can attach to Messrs. Wilson and Kemble by reason of the account, except it be through their adoption of it by their signatures. It was not a final account, in the sense that it exhibited the full performance of the executor's work, for it did not show that they had realized enough to set apart the two trust funds. The performance of their duty in that respect required them to sell real estate so that the investible moneys would amount to at least $20,000. But it was final so far as allowances for their disbursements were concerned, and so far as the ascertainment as of the assets acknowledged thereby to have been received were concerned. It did not charge the accountantswith unconverted securities or pray allowance for any part of the inventoried assets unconverted. It charged them with a certain sum of money, realized and ready for application to the purposes of the bill. The account was not the last one that the executors must render, but it was a final account, within contemplation of the 108th section of the orphans' court act. Revision, 775; Stevenson's Adm'r v. Dehart's Ex'r, 21 N. J. Law, 70; Pomeroy v. Mills, 37 N. J. Eq. 578, 580. Upon this account there has been a decree. The defendant executors are now bound by that accounting as the executrix in Tehan v. Maloy was bound; that is, by reason of their admission In judicio, and the judicial sentence pronounced thereon. They, however, claim that they did not appreciate the consequence that would attend their act. Mr. Kemble says that the paper was sent to him by mail, and that he signed it because he was asked to. He signed it immediately, and returned it to Mr. Thompson. He says that he did not like to sign, that he spoke to his wife about it, but nevertheless he signed it. He knew what the paper was. He was away from Mr. Thompson and unconstrained. He does not assert that any facts contained in it were misrepresented, or, indeed, that he was deceived in any way into the adoption of it as his account. Mr. Wilson signed in his own office. He says that he signed upon Thompson's assurance that the account was a mere form; that he (Thompson) would be responsible, and that the account would relieve Wilson from responsibility. It is only under leading questions that Mr. Wilson declares that Mr. Thompson said, in effect, that the account was right He, however, admits that he cannot give Mr. Thompson's language, and, when he attempts to give its substance, he does so disjointedly and vaguely, so that, in view of the powerful interest he has in the effect of his testimony, I am constrained to doubt whether he may not, unconsciously perhaps, misunderstand it to his advantage. I cannot look behind the settlement of an account in the orphans' court, except on the ground of fraud in its procuration. Frey v. Demarest, 16 N. J. Eq. 239; Voorhees v. Voorhees, 18 N. J. Eq. 227; Search v. Search, 27 N. J. Eq. 139; Dringer v. Railway Co., 42 N. J.Eq. 577, 8 Atl. Rep. 811. And such fraud should appear by clear and cogent proof. The exhibition of a negligent acquiescence in a false account, because of overweening confidence in the person who prepared It, does not show, and the proofs of the defendants, when fairly weighed, do not amount to more than this. I am of opinion that the defendant executors must be jointly charged with the balance found upon their accounting. I cannot say that their negligence should subject them to greater liability. It is true the continued clamoring of legatees for their money, and the appearance of trust moneys in the private account of Mr. Thompson, were calculated to awaken inquiry, but, in view of the excellent reputation that Mr. Thompson enjoyed in respect to both his pecuniary ability and his personal integrity, they lose much of their inculpatory strength. They were better known to the complainant than they were to Messrs. Wilson and Kemble, and they awakened him only to the exaction of the account, with which he was satisfied. When he stopped with exaction of the account, he knew that Messrs. Kemble and Wilson did not manage the estate. It would be unjust to say, in his behalf, that the inquiry of Messrs. Wilson and Kemble, under the circumstances, should have gone further. By acquiescing in the account the complainant did not require further inquiry at that time, and I think he should not now be permitted to object that it was not made. Besides, the proofs fail to show that, if exhaustive inquiry had then been made, anything more could have been saved to the estate than is had through the balance of account to which I hold all the executors.
It was unquestionably the duty of the executors to ascertain the condition of the estate when they assumed its management. Such ascertainment would have disclosed the situation in which the Philadelphia real estate was left, and the necessity of provision for its safety, and would probably have shown that Mr. Thompson was already a defaulter to the testator, and have resulted, not only in saving the property from sale, but also in the efficient protection of all the other assets of the estate. The executors were undoubtedly negligent in this respect. But it would be most difficult, I think impossible, to measure the damage that this neglect caused. It is at best problematical and remote. The Philadelphia property was sold after Mr. Thompson became the sole representative of the estate in Pennsylvania, and while, as such sole representative, he was in receipt of its rents, which were more than sufficient to pay the yearly ground rent. It does not appear that the moneys paid by the testator to Thompson to satisfy the ground rent could have been recovered back. It only appears that Thompson would probably, upon the discovery, have been removed from the trust. That is too remote from the losses for practical use. I think that the balance due from the executors upon the accounting, with interest upon it, will cover all that could be justly assessed against them because of their negligence. Against that part of this charge which consists of interest they must be credited the payments made by Mr. Thompson to the widow and son of the testator, and against that part of it which consists of principal in excess of $10,000, to be reserved in trust for the complainant, they must be credited the legacy of $3,000 paid to the cemetery company, the three legacies, of $500 each, to Phoebe Rihl and others, and the moneys paid to the two charitable institutions, with interest upon each of those payments from its date. There must be a reference to a master to state this account. The bill seeks not only relief against the executors of the will, but also asks that the devise of lots to the Beverly Cemetery Company in trust in perpetuity may be decreed to be void, and that the cemetery companymay be required to account for moneys realized from such of the lots as it may have sold. This matter has no connection with the issue which has been already discussed. It introduces a distinct question not related to that issue. A decision of it at this time will tend to confusion and embarrassment in the future conduct of the suit. Besides, the question concerns the title to lots that have been sold, and the purchasers of those lots have not been made parties to this suit; and, even if sales of the lots by the cemetery company may be adopted by the executors, the position of the defendant executors at this time is such that they are my fitted to intelligently and deliberately judge whether it is best for the interest of the estate to adopt the sales. No evidence has been produced to enable me to determine this important question for them. Upon much consideration I have concluded, as I intimated at the argument I would conclude, not to decide this part of the case. The pleadings may be amended by striking it out. The complainant will be entitled to costs against the defendant executors.