In re Hall

At the time of the entry of the decree on accounting in 1877, or at some time since, it is alleged that Mills, the administrator, became insolvent and unable to pay all of the distributive shares then unpaid, and all the proceedings had since then have had in view the question of the liability of Mrs. Keleman, the administratrix. The amendment of that decree by striking out the provision directing him to hold the shares of the minors, as their general guardian, was made in accordance with the facts as then presented, and, as they now more clearly appear, was entirely correct. But I do-not see how it is of any materiality on this motion. The amendment striking out the clause discharging Mrs. Keleman, the administratrix, from further accountability, simply had the effect of leaving open the question as to her liability. The motion now made touches that question directly. *46If she is legally liable, then the motion should be granted; if not, it ought to be denied. This is on the assumption that this court has, at this late day, any power in the premises. Conceding that it has, on the authority of Ormiston v. Olcott (84 N. Y., 339), and Croft v. Williams (88 id., 432), it must be denied. The administratrix, it appears, never received any of the funds or property of the estate, as such, but did receive her distributive share only, and she has, in no discoverable manner, contributed to the alleged devastavit.

It is claimed, however, that she is liable, within the doctrine of the case of Wilmerding v. McKesson (103 N. Y., 329). It seems fairly to be inferred, from the account filed by the administrator, that he did use the funds of the estate for his own purposes. The account charges Mills with interest thus : “ Add interest on moneys while in hands of John W. Mills, administrator, as agreed upon between parties and fixed by the Surrogate, $4,291.73 ” ; and again, “ the administrator, Mills, is chargeable with interest upon the balance remaining in his hands after July 20th, 1873, which has been agreed upon and fixed, by the parties appearing, at $4,291.73.” Assuming it to be true that he did use the moneys for his own purposes, that fact alone is insufficient to fix a liability upon the administratrix for any consequent loss. In Wilmerding v. McKesson (supra) it appeared that the co-executor, McKesson, had knowdedge or the means of knowing that the moneys which were paid in to the other executor were used in the business of the firm of which the latter was a member; that he was not mere*47ly passive, that he was active in the matter, advised as to investments, passed his accounts, consulted counsel, united in employing an accountant, etc. While here, the administratrix appears to have been perfectly passive. She had confidence in the administrator, and in his financial position. She entrusted her own funds- to his care to manage, and invest for her, and prior to the accounting there is not a particle of evidence, express or circumstantial, that tends to show that she knew he was in any way using the funds of the estate. If she then learned- it for the first, it did not concern her, as she was, by the decree then entered, discharged from liability, and her connection with the estate severed.

Believing the administratrix to be free from any liability for any devastavit of her associate, it is deemed unnecessary to discuss any of the other questions raised by her counsel in his brief; and it follows that the motion to amend the decree must be denied.