Rorke v. McConville

4 Redf. 291

• Court: New York Surrogate's Court
• Decided: March 15, 1880
• Status: Published

Opinion

The Surrogate.—If John McConville had set apart assets of the estate of William McConville, from which to raise the legacy given to John McConville, Jr., or if, from the money belonging to the estate of William McConville, he had kept by itself a sufficient amount to pay this legacy, on his death those assets or that fund would have rested exclusively in Edward Rorke, as sole surviving executor of William McConville, and he would be entitled to follow the assets or the fund in the hands of the executors of John McConville. (Shook v. Shook, 19 Barb., 653 ; Walton v. Walton, 4 Abb. Ct. App. Dec., 512.) But when John McConville mingled the assets of the estate of William McConville with his own property, so that they no longer could be distinguished, the property in those assets was of necessity altered, and vested in him individually; they became converted, or, technically speaking, “administered,” and John McConville remained accountable for their value. (Williams on Executors, 646, 915, note e, .916, 918.) On his death, such liability extended to his estate. (2 R. S., 114, § 6.) But this liability is directly to the persons beneficially intrusted in the estate, who have been injured by his devastavit, and not to the surviving executor of the will of William McConville for their benefit. (Beall v. New Mexico, 16 Wall., 535, 540, 541, 542; Goodyear v. Bloodgood, 1 Barb. Ch., 617; Auburn Theological Seminary v. Kellogg, 16 N. Y., 83 ; Bartlett v. Hatch, 17 Abb. ). If the amount of this legacy were ordered to be paid to Edward Rorke, he would have to pay it right over to the general guardian of the infant, John McConville, when appointed ; there is no reason for this circuity of action, which the law seeks to avoid. (Graham v. De Witt, 3 Bradf., 186 ; Gray v. Harris, 43 Miss., 429.)

The promise made by the executors of John McConville to Edward Rorke, to pay him the amount of the said legacy, is without consideration so far as it appears, and therefore not binding.

The infant may have a provision in the decree, that the amount due him shall be paid to his general guardian when appointed, or deposited in the Brooklyn Trust Company, to abide the further order of this court.

Ordered accordingly.