Hollister v. Burritt

Osborn, J.: The testator, Levi Coon, in his lifetime and on the 12th day of October, 1855, recovered a judgment against one John Conover, for the sum of about $1,129. At that time Conover owned a farm of laud worth about $4,000, but which was incumbered by three prior judgments, held by the Tompkins County Bank, amounting to over $4,000, and more than the value of the farm. These bank judgments were docketed against Conover in Febru■ary, 1855. This continued to be the situation óf affairs till ■January, 1860, when Coon died, and the appellant became his [292] executrix, and continued to act as such till December, 1871, when she was superseded and the respondent was appointed administrator with the will annexed, in her place. Afterwards, Mrs. Hollister applied to the surrogate for a final accounting and to be discharged. The proper citations were issued, and upon the return thereof one John J. Taylor was appointed an auditor, to' examine and pass upon her accounts, and to make the usual report of his doings to the surrogate. On such accounting it turned out that this Coon judgment remained unpaid, except that shall amounts thereon had been received in different years, and executions had been issued thereon, which had not been returned, although one was in the sheriff’s hands when the lien of the bank judgments ceased, to wit, in February, 1865. It will be remembered that the bank judgments were docketed and became, liens on the real estate of Conover in February, 1855. After such liens expired, and from the 20th of February, 1865, till October 12th, 1865, a period of nearly eight months, the Coon judgment was the first valid lien, and might have been collected without difficulty. These facts are undisputed. The lien of the Coon judgment expired October 12th, 1865, but for nearly eight months it was not only a valid, but the first lien, as has been seen. Instead of collecting it, the appellant, who was the executrix of the Coon estate, allowed the time to pass by, and the lien to expire, till the bank judgments were revived and so became prior liens again to the lien of the judgment in question. Under such circumstances, the auditor reported to the surrogate that in his opinion Mrs. Hollister had been guilty of such negligence, as that she should be charged with the amount due on such judgment, and account therefor to the Coon estate. The surrogate adopted the report, and made his d.ecree accordingly. Hence the appeal to this court. It cannot be a matter for argument that the lien of the bank judgments expired as to the subsequent judgment (being the one in question) ten years after the docket thei’eof, and that for a ■period of nearly eight months the Coon judgment was a first lien on some $4,000 w-orth of real estate and could have been collected in full by the ordinary legal process. (2 R. S. Edm’s ed. 371, § 4; France v. Hamilton, 26 How. Pr. R., 183.) [293] In Dayton on Surrogates, page 519, the following language is used, and whiek shows the care and diligence to be employed by an executor in the exeeution of his trust. “ Such acts of negligence or careless administration as defeat the rights of the creditors or legatees, or parties entitled to distribution, amount to a . devastavit-, for if persons accept the trust of executors,' they must perform it. They must use due diligence, and not suffer the estate to be injured by their neglect.’’ By the report of the auditor it will be seen that he finds from the facts, that the appellant was guilty of gross negligence. If •such a conclusion is warranted or can be upheld from the facts, it is clear that the decree of the surrogate was right, and should be affirmed. All the cases to be found in the books concur in holding an executor liable for gross negligence or collusion. (Ruggles v. Sherman, 14 John., 446; McRae v. McRae, 3 Bradf., 199; Shidtz v. Pulver, 3 Paige, 182.) Certainly an executor or administrator cannot complain if he is held to that, amount of care and diligence in the management of the estate committed to him, as a reasonably prudent person would employ in the management of his own affairs. (Redfield’s Law and Practice, page 250.) In the case before us, no one would question the liability of the appellant, if when she first accepted the trust she had found this judgment good, valid and collectable, for eight months, and the same was subsequently lost by reason of her neglect to enforce its payment. (Williams on Ex’rs, 15, 43; McClellan’s Probate Practice, 213; Schidtz v. Pulver et al., 11 Wend., 361.) This judgment was for a huge amount and formed an important part of the estate which the appellant undertook to administer,. and the question is whether such diligence has been used in efforts to collect it as ordinary prudence would suggest. She is pre.sumed to know the law, though she says she did not in fact know that the lien of the bank judgments had céased after ten years from the time of their -docket, nor is there any pretense that she has acted in bad faith or collusively. It does seem hard, at first thought unjust, to charge her personally with the fidl amount of this judgment when she has received nothing therefrom. But I am forced to the conclusion after a most careful examination of [294] the case as presented on this appeal, and the authorities to which we have been referred, and others, that there is enough to show such negligence or want of reasonable diligence as to warrant the decree of the surrogate, based upon the report of the auditor. The decree appealed from must be affirmed with costs. Bockes, P. J., concurred.