Hasbrouck v. . Hasbrouck

It seems to me, that this evidence was properly excluded by the surrogate. It was not offered to show that the assets or interest of the intestate were not of the value at which they were sold at the time of the sale, but that subsequent events have rendered them less valuable than then estimated, and for which they were sold. The purchaser does not make this claim, and for aught that appears, he is entirely satisfied with his bargain. Neither he nor his indorser ever set up that as a reason for not paying the note, and I think the administrator, in this proceeding, is precluded from *Page 184 showing that he received too large a price for the thing sold. If he could do so in this instance, he could do it in any, where he had received the proceeds of the intestate's property and misapplied or used it in such manner as to make himself personally liable for the amount. In other words, if he had properly used and invested the proceeds, the estate would have had the benefit of the sale; if he misappropriated them, so that he was personally liable for the amount, he might discharge himself for his breach of duty by showing that the amount he received was larger than he would have obtained under other circumstances. He cannot shift his ground, and thus evade the responsibility which the law imposes. It is true, that the inventory is but prima facie evidence of the amount of the estate, and the administrator or executor may show, in diminution of the amount with which he is to be charged, that by diligence and fidelity, he has been unable to collect and realize the amounts contained in the inventory. So, on the other hand, the parties interested in the estate, may show that assets, other than those contained in the inventory, have come, or by the exercise of due care and attention, should have come, into the hands of the administrator to be administered. This case cannot be distinguished in principle from that of Schenck v. Dart (22 N.Y., 420). In that case, the testator left certain shares of stock, which were inventoried at eighty per cent of their par value. The executor made sale of a portion of the shares, and they were sold at fifty-six per cent of the par value, and though nominally purchased by another person, were in fact purchased by the executor. On the final accounting, the controversy was, whether he was to be charged with the inventory price of the shares, or with the price at which they were bid in at the sale. This court held the sale ineffectual, and that the powers of sale conferred upon the executor, by the will of the testator, could not be exercised in his own favor, either directly or indirectly: that he was, therefore, properly charged with the value of the stock. It was said that upon the inquiry what was the value, we think the best evidence which the case presents is, the sworn inventory of *Page 185 the executors themselves. We have, in the present case, that guide, and there seems no injustice to holding this administrator to account for the property upon the valuation placed upon it by both seller and purchaser and a disinterested umpire, and further attested by his own oath and a bona fide sale made thereof for the amount. Again, the law has been settled in this State for years, that when any administrator sells the estate of his intestate, on credit and without security, he is to be charged with the whole amount of the purchase-money, on the ground that he was guilty of negligence, in parting with the estate without payment or security. This was distinctly ruled by Chancellor KENT, in 1818, in King v. King (3 Johns. Ch., 352.) The same doctrine is reaffirmed by Chancellor WALWORTH, in Orcutt v.Orms (3 Paige, 464). In any aspect, in which the matter can be regarded, it seems to me that the administrator is chargeable with the amount of the two notes of Kingon, and that the decree of the surrogate, charging him therewith, was correct. If these views are approved, it follows that the judgment of the Supreme Court should be reversed, and that the decree of the surrogate should be affirmed with costs.