Cline v. . Sherman , 144 N.Y. 601 ( 1895 )

Peckham, J.

The language of the will of Walter Sherman made the executors trustees of the fund of forty thousand dollars provided for in the fourth clause of the will. This fund came into their possession in the first place in their character as executors, for the purpose of being disposed of as the will directed. They in due time sought to end their duties and liabilities as executors, and to that end applied for a final accounting as such. In the accounts which they presented they showed in effect that they had taken the trust fund and divided it by distributing one-half to each of the executors in their character as trustees under the above-mentioned fourth clause. This account so presented showed that they had paid as executors to themselves as trustees under the will the amount of the trust fund in the way stated. Thus, in assumed compliance with the will, this distribution of the estate was made by the executors, and the question for the surrogate to decide was whether such payment and distribution were right. It may or may not have been right, but the surrogate had the power to decide in regard to it by virtue of his power to decree a distribution of the estate of the testator according to the terms of the will, including the trust fund. Everybody interested in the estate was before the surrogate, and with all the facts before him he approved of this distribution and decreed accordingly. From that time the executors were discharged and they held the trust fund as trustees under a decree which approved of and substantially directed this separation. The surrogate had jurisdiction to make such a direction and decree such a distribution even though it may have been erroneous. No appeal was taken from the decree, and now, after twelve years of acquiescence in all of its provisions, one of the children of one of the trustees desires to make the other trustee hable for the misconduct of his original co-trustee in relation to the fund in the possession of such co-trustee. I do not think the liability remained after the decree providing for and approving of the distribution was made. It would also seem to be going a long way in advance of any decision we have heretofore made to hold such a trustee liable for the waste of that part of a trust fund which under these circumstances had been placed in the physical possession and control of one of his colleagues by the direction and approval of the surrogate and where no negligence was shown on the part of the trustee who was sought to he made liable other than an acquiescence in the decision of the surrogate decreeing and approving of such separation of the funds.

We think the decision was right and it should be affirmed, with costs.

All concur, except Baetlett, J., not voting.

Judgment affirmed.