In re the Inventory of Dana's Goods

The Surrogate.

Washington Murray, in his lifetime, qualified as executor of the will of Haney Dana, deceased, took possession of the estate, paid • the, debts,, and, at the expiration of eighteen months, accounted; and a decree on final accounting was made and entered by the Surrogate. He was directed by this decree to continue to hold certain funds as trustee in execution of the trusts created in the will..

On the death of Murray, Stephen W. Dana, the other person nominated, in- the will as executor, qualified as such, and took letters testamentary. He is summoned to file an inventory of the personal property of the estate.. He (appears and puts in an affidavit, claiming that-the estate of his testatrix was fully administered by Murray, and that the deponent has taken no property into his possession as executor, but is the and effects. of the estate as trustee solely, and therefore ought not to be compelled to file all inventory thereof. •

This excuse is ingenious, hut untenable. The letters testamentary issued to Dana constitute him the executor ■ of the will, and however little of mere executory duty remains to 'he performed, the liabilities of an executor are his. It is an error to suppose that an executor is dis- p charged as such, by the passing of his accounts, and by a direction to continue.to hold the remainder of the estate as then ascertained, as a trustee. Other assets may there-, aftér be discovered, of which he may be required to possess himself as executor. The presumption of the law is that this may be the case j and the law does not therefore discharge him, but keeps him in his place as executor, ready to receive, and become responsible for, any assets that may come into-existence or be .found to exist. Dana cannot say that he.is not an executorthe deceased Murray, whom he - succeeds, was an. executor-at the time of his death, and had not been discharged as such, nor had the Surrogate power to discharge him. What he was, this new executor is. The inventory now required is moreover for the purpose of , charging, this new comer in the, administration; of ascertaining the amount of the fund now in trust, and which has passed into his hands. An inventory must be rendered.