Haight v. Brisbin
| Decision Date | 27 October 1885 |
| Citation | 3 N.E. 74,100 N.Y. 219 |
| Parties | HAIGHT v. BRISBIN and others. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
P. C. Ford, for appellants, James C. Brisbin and others.
E. F. Bullard, for respondent, Fanny B. Haight.
The argument on this demurrer concedes, as a general rule, that the sureties upon the bond of an executor or administrator are not liable until the default of their principal has been established before the surrogate. Hood v. Hood, 85 N. Y. 561. The respondent, however, claims that the rule is not universal and admits of exceptions, and is not to be appliedin a case where the surrogate's court has no jurisdiction to redress the specific wrong which forms the subject of complaint. The causes of action asserted by the plaintiff were in substance that an executor, empowered and directed by the will to sell real estate, had been guilty of gross neglect and bad faith in failing to sell and invest the proceeds; and the action to redress this grievance is brought in the supreme court and seeks damages for a breach of the bond. The plaintiff insists that for this injury the surrogate can give no redress, and therefore to require his preliminary adjudication would involve an impossible condition, and leave the injury inflicted without a remedy. If such a case should occur, equity would be quite sure to furnish a remedy, the specific need of its intervention being disclosed, and all necessary parties being brought before the court, and that would be the appropriate remedy to charge the executor, instead of an action at law upon the bond. Trust duties are peculiarly the subject of equity jurisdiction, and those of an executor or testamentary trustee are in the main subjected to the surrogate's control.
We have quite recently considered the scope and boundaries of the jurisdiction conferred upon that tribunal. Hyland v. Baxter, 98 N. Y. 610. Within the principles there established, we discover no reason for doubting the power of the surrogate upon an accounting to charge the executor with any loss to the estate, resulting from negligence or bad faith. While it is true that in the first instance that court could not order the sale of the real estate, and take upon itself the discretion and judgment committed to the executor, it certainly could reach the justice of the case by its power of removal, and its authority upon an accounting. For gross neglect, and especially for bad faith, on the part of an executor in refusing to perform the duties of his trust, the surrogate may remove him, and settle and adjust his accounts, and charge him with any loss to the estate which has resulted from his misconduct. Code, §§ 2605, 2685. Such gross neglect or positive bad faith as would justify his removal would equally justify a redress of the injury in the adjustment of his accounts. It is no answer to say that such remedy has been tried and failed. It did not fail for lack of jurisdiction, but from a judgment adverse to the application upon its merits. Haight v. Brisbin, 96 N. Y. 132. We do not think this case comes within any of the possible exceptions...
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