Martin, J.
The unanimous affirmance by the Appellate Division of the judgment entered in this case has eliminated from our consideration several important and interesting questions which were presented upon the argument and by the briefs of counsel. The facts, so far as they were found by the trial court, must be regarded as conclusively established and cannot be reviewed here. Assuming those facts, the important question is whether they justify the judgment.
Upon the trial before the court, which resulted merely in an interlocutory judgment directing an accounting by the defendant, the findings were probably sufficient to justify that judgment which determined nothing beyond the liability of
the defendant to account. (1 Cyclopedia Law and Procedure, p. 413.) But the more serious question is whether there were any findings or evidence which justified a final judgment for $24,937.18. It seems quite impossible to find in the record any findings of fact or evidence to sustain the conclusion that the defendant, in her representative capacity or otherwise was liable for the amount with which she has been charged. Although there was evidence that at some time her testator had been in possession of a portion of the estate of William S. Pendleton as executor or trustee, and that he paid out various sums for the care and support of George B. Pendleton, yet there ivas no rinding nor proof which would show that the plaintiff was entitled to recover the amount of the final judgment awarded. The only findings of fact contained in the record related to and bore upon the issue whether the plaintiff was entitled to an interlocutory judgment requiring the defendant to render an account for such funds as she or her testator had received from the estate of William S. Pendleton which were bequeathed to the trustees named in the will and of which George B. Pendleton was given the use during his life. The court found facts upon that issue alone, and the matter of the accounting was then referred to a referee to take proof thereon and report to the court. A hearing was had, and the referee reported that he was unable to take and state the account, for the reason that the defendant was unable to render an account, as she had no knowledge of any such trust fund, and ha i mo books or papers of her testator containing any record of his proceedings from which any such account could be prepared. Upon this report,'with no further proof as to the amount received by the defendant or her testator, the plaintiff applied for a confirmation thereof and for final judgment against the defendant,' which was granted. Thus the report of the referee to the effect that the defendant was unable to make and state an account was passed upon and confirmed by the court.
The hearing before the referee on the attempted accounting in this case, so far as it proceeded, disclosed that nono of the
fund to which it related was in the hands of the defendant or in the hands of her testator at the time of his death, or at least none which she could identify, and, hence, she was unable to state the account. In such an action both parties are deemed actors when the cause is before the court or referee on its merits. (Story’s Equity Jurisprudence, § 522; Van Santvoord’s Equity Practice, o. 161 ; 1 Cyclopedia of Law and Procedure, 434.)
The contestants were required to show by competent proof the amount of the estate in the hands of the decedent as executor or trustee thereof, and his representative upon an accounting was chargeable only for the amount thus found to have been in his hands.
(Matter of Ryalls,
74 Hun, 205;
Matter of Ryalls,
80 Hun, 459.) The defendant being unable to state the account so far as it related to any portion of the trust fund that came into the hands of her testator, if any, the plaintiff, before it was entitled to a final judgment for any sum, was required to show not only that a portion of the fund came into the hands of the defendant’s testator, but also to show the amount, and the court could properly charge the defendant only with that amount, as in no case will a trustee be held for more than he receives, if he is in no fault and has committed no breach of the trust. (2 Perry on Trusts, § 847;
iStaats
v.
Bergen, 30 N.
J. L. 131.) The learned judge, to whom the application for judgment was made, said :
“
If defendant fails for any
reason in
accounting, plaintiff must endeavor to fix the sum actually due from information within its possession or ascertainable with due diligence,” thus plainly indicating that to his mind the proof as to the amount of the fund in the hands of the defendant, or that came into the hands of her testator, was uncertain, and that that amount should be more clearly established to entitle the defendant to a final judgment for the amount claimed and for which the judgment was awarded. Yet, notwithstanding these views of the court, a judgment was entered by the plaintiff for the full amount of the trust fund mentioned in the will of William S. Pendleton, with six per cent interest from 1879, without fur
nisliing any further proof to establish the amount which had reached the hands of the defendant’s testator, and for which alone the defendant should be held liable as such executrix. We fail to find in the record any finding of fact by the court or any evidence which would justify a finding that the defendant had received any portion of the trust fund, or that the flili amount of such fund ever came into the hands of her testator.
Under the will of William. S. Pendleton there were two-executors or trustees, and it appears that a portion of the fund in question was in the hands of the co-trustee with defendant’s testator, for which the latter would not be liable, unless the fund subsequently came into his hands, or it was dissipated with his consent or by reason of 1ns negligence.
(Croft
v. Williams, 88 N. Y. 384;
Bruen
v. Gillet, 115 N. Y. 10.)
Under the circumstances of this case and in view of the fact that the defendant was a mere representative of her testator, who left no books or papers from which an account could be made, and, consequently, she was unable to state such account, we think the burden of tracing the trust fund into the hands of the defendant or her testator rested upon the plaintiff, and that until such proof was furnished or finding made the plaintiff was not entitled to enter a judgment for the full amount of the trust fund, with six per cent interest. Nor do we think that it can be presumed from the evidence in this case that the defendant’s testator was ever in possession of the entire fund, so as to make the defendant, as his executrix, liable therefor. The principle involved in
Matter of Hicks
(170 N. Y. 195) seems applicable in this case. That was a proceeding before the surrogate to compel an executor of a general guardian to pay over an amount due to his ward in preference to other creditors without proof that the assets of the decedent in the hands of his executor were a part of or derived from the trust fund. It was there said ■ that a presumption that the trust funds were in the hands of the executor could not be indulged in, in the absence of any finding or evidence to that effect, in favor of the claim of his ward. So
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Martin, J.
The unanimous affirmance by the Appellate Division of the judgment entered in this case has eliminated from our consideration several important and interesting questions which were presented upon the argument and by the briefs of counsel. The facts, so far as they were found by the trial court, must be regarded as conclusively established and cannot be reviewed here. Assuming those facts, the important question is whether they justify the judgment.
Upon the trial before the court, which resulted merely in an interlocutory judgment directing an accounting by the defendant, the findings were probably sufficient to justify that judgment which determined nothing beyond the liability of
the defendant to account. (1 Cyclopedia Law and Procedure, p. 413.) But the more serious question is whether there were any findings or evidence which justified a final judgment for $24,937.18. It seems quite impossible to find in the record any findings of fact or evidence to sustain the conclusion that the defendant, in her representative capacity or otherwise was liable for the amount with which she has been charged. Although there was evidence that at some time her testator had been in possession of a portion of the estate of William S. Pendleton as executor or trustee, and that he paid out various sums for the care and support of George B. Pendleton, yet there ivas no rinding nor proof which would show that the plaintiff was entitled to recover the amount of the final judgment awarded. The only findings of fact contained in the record related to and bore upon the issue whether the plaintiff was entitled to an interlocutory judgment requiring the defendant to render an account for such funds as she or her testator had received from the estate of William S. Pendleton which were bequeathed to the trustees named in the will and of which George B. Pendleton was given the use during his life. The court found facts upon that issue alone, and the matter of the accounting was then referred to a referee to take proof thereon and report to the court. A hearing was had, and the referee reported that he was unable to take and state the account, for the reason that the defendant was unable to render an account, as she had no knowledge of any such trust fund, and ha i mo books or papers of her testator containing any record of his proceedings from which any such account could be prepared. Upon this report,'with no further proof as to the amount received by the defendant or her testator, the plaintiff applied for a confirmation thereof and for final judgment against the defendant,' which was granted. Thus the report of the referee to the effect that the defendant was unable to make and state an account was passed upon and confirmed by the court.
The hearing before the referee on the attempted accounting in this case, so far as it proceeded, disclosed that nono of the
fund to which it related was in the hands of the defendant or in the hands of her testator at the time of his death, or at least none which she could identify, and, hence, she was unable to state the account. In such an action both parties are deemed actors when the cause is before the court or referee on its merits. (Story’s Equity Jurisprudence, § 522; Van Santvoord’s Equity Practice, o. 161 ; 1 Cyclopedia of Law and Procedure, 434.)
The contestants were required to show by competent proof the amount of the estate in the hands of the decedent as executor or trustee thereof, and his representative upon an accounting was chargeable only for the amount thus found to have been in his hands.
(Matter of Ryalls,
74 Hun, 205;
Matter of Ryalls,
80 Hun, 459.) The defendant being unable to state the account so far as it related to any portion of the trust fund that came into the hands of her testator, if any, the plaintiff, before it was entitled to a final judgment for any sum, was required to show not only that a portion of the fund came into the hands of the defendant’s testator, but also to show the amount, and the court could properly charge the defendant only with that amount, as in no case will a trustee be held for more than he receives, if he is in no fault and has committed no breach of the trust. (2 Perry on Trusts, § 847;
iStaats
v.
Bergen, 30 N.
J. L. 131.) The learned judge, to whom the application for judgment was made, said :
“
If defendant fails for any
reason in
accounting, plaintiff must endeavor to fix the sum actually due from information within its possession or ascertainable with due diligence,” thus plainly indicating that to his mind the proof as to the amount of the fund in the hands of the defendant, or that came into the hands of her testator, was uncertain, and that that amount should be more clearly established to entitle the defendant to a final judgment for the amount claimed and for which the judgment was awarded. Yet, notwithstanding these views of the court, a judgment was entered by the plaintiff for the full amount of the trust fund mentioned in the will of William S. Pendleton, with six per cent interest from 1879, without fur
nisliing any further proof to establish the amount which had reached the hands of the defendant’s testator, and for which alone the defendant should be held liable as such executrix. We fail to find in the record any finding of fact by the court or any evidence which would justify a finding that the defendant had received any portion of the trust fund, or that the flili amount of such fund ever came into the hands of her testator.
Under the will of William. S. Pendleton there were two-executors or trustees, and it appears that a portion of the fund in question was in the hands of the co-trustee with defendant’s testator, for which the latter would not be liable, unless the fund subsequently came into his hands, or it was dissipated with his consent or by reason of 1ns negligence.
(Croft
v. Williams, 88 N. Y. 384;
Bruen
v. Gillet, 115 N. Y. 10.)
Under the circumstances of this case and in view of the fact that the defendant was a mere representative of her testator, who left no books or papers from which an account could be made, and, consequently, she was unable to state such account, we think the burden of tracing the trust fund into the hands of the defendant or her testator rested upon the plaintiff, and that until such proof was furnished or finding made the plaintiff was not entitled to enter a judgment for the full amount of the trust fund, with six per cent interest. Nor do we think that it can be presumed from the evidence in this case that the defendant’s testator was ever in possession of the entire fund, so as to make the defendant, as his executrix, liable therefor. The principle involved in
Matter of Hicks
(170 N. Y. 195) seems applicable in this case. That was a proceeding before the surrogate to compel an executor of a general guardian to pay over an amount due to his ward in preference to other creditors without proof that the assets of the decedent in the hands of his executor were a part of or derived from the trust fund. It was there said ■ that a presumption that the trust funds were in the hands of the executor could not be indulged in, in the absence of any finding or evidence to that effect, in favor of the claim of his ward. So
here, we think no presumption can be indulged in to the effect that the entire trust estate came into the hands of the defendant’s testator so as to compel the defendant to account therefor. So far as it was shown that the defendant’s testator received a part of the trust estate, his estate was liable. But before the. plaintiff can sustain this judgment or recover the amount thereof, it must he proved and found that the whole trust fund came into his hands, or such facts must be established as would fairly permit the plain deduction that he received all of such fund. We think no such evidence was given and no such finding made by the trial court, and, consequently, no sufficient basis for the judgment awarded was established. Mere proof that twenty years since a portion of this fund was held jointly by the trustees with no proof of any settlement in, or order by the probate court, or of a transfer of said fund to them as trustees, was insufficient to establish possession of the entire estate in the defendant’s testator as such trustee.
The character of this action should be kept in mind. It is purely an action for an accounting and nothing else. Therefore the plaintiff was entitled only to the relief appropriate to such an action. It was not an action for breach of trust, or for
devastavit.
The defendant was called upon to account for the trust fund created by the will of William S. Pendleton for the benefit of George R. Pendleton. So far as that fund was proved to have been in the hands of the defendant’s testator at his death, she is required to account, so far as possible. If, however, she has no knowledge of any such fund and no books or papers from which she can acquire it, she cannot be required to state an account. Or, in other words, she is not required to do an impossible thing. Therefore, when the referee made his report, to the effect that the account could not be stated upon the proof introduced before him, it was clear that other and further proof was required. The court might have referred the case back to the referee to take such further proof as the plaintiff might furnish as to the amount of the fund, if any, which came into the
hands of the defendant or which came into the hands of her testator. It might also have taken that proof, bnt nothing of the kind was done. Nor did the court awarding the final judgment make any findings whatever, and there was no proof nor findings which could, have formed a proper basis for the judgment entered. Even if it be held that that court could act upon the evidence'previously taken before another judge as a basis for the interlocutory judgment, it was insufficient as it entirely failed to show that the whole amount of such fund ever came into the hands of the defendant’s testator. Nor was there sufficient proof -in the case to uphold a legitimate presumption to'that effect. While there may have been sufficient proof to justify a judgment for a smaller amount, we think there was none that would justify the judgment actually entered.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Gulden, Ch. J., Gray, O’Brien, Bartlett, Vann and Werner, JJ., concur.
Judgment reversed, etc.