hands except when, by his acts or negligence, he is liable for the wrongs of his coexecutor the same as if assets misappropriated had been in his possession.18

§ 1523. General Rule as to Liability of One Executor for Acts of Coexecutor.

The general rule is that executors are liable only for the assets which come into their hands, and are not responsible for the acts of coexecutors except when they assent thereto or are guilty of negligence. An executor is not liable for devastavit by his coexecutor unless he contributes to it directly or indirectly by reason of his negligence, since he does not, by virtue of his acceptance of the trust, become an insurer of the trust funds against the possibility of loss, nor a surety for his coexecutor." Where a testator names more than one as executors of his last will, a trust is imposed by him in each of his nominees and each has the power to act, although one can not deny the others the right to participate. Each having the legal capacity to act, if one commits a wrong for which

48 Ochiltree v. Wright, 21 N. C. 336; Wilson's Appeal, 115 Pa. St. 95, 9 Atl. 473.

49 In re Fesmire's Estate, 134 Pa. St. 67, 19 Am. St. Rep. 676, 19 Atl. 502; In re Myer's Estate, 187 Pa. St. 247, 41 Atl. 24.

See, also, Langford v. Gascoyne, 11 Ves. Jun. 333; Littlehales v. Gascoyne, 3 Bro. C. C. 73; Fleming v. Walker, 152 Ala. 386, 126 Am. St. Rep. 46, 44 So. 536; Whiddon v. Williams, 98 Ga. 310, 24

S. E. 437; Insley v. Shire, 54 Kan. 793, 45 Am. St. Rep. 308, 39 Pac. 713; Grundy v. Drye, 104 Ky. 825, 48 S. W. 155, 49 S. W. 469; Ames v. Armstrong, 106 Mass. 15; King v. Foerster, 61 N. J. Eq. 584, 47 Atl. 505; In re Hunt, 38 Misc. Rep. (N. Y.) 613, 78 N. Y. Supp. 105; Nanz v. Oakley, 120 N. Y. 84, 9 L. R. A. 223, 24 N. E. 306; Kerr v. Kirkpatrick, 43 N. C. 137; Irvine's Estate, 203 Pa. St. 602, 53 Atl. 502; Boyd's Exrs. v. Boyd's Heirs, 3 Gratt. (Va.) 113.

his associates are in no wise responsible, the one committing the wrong alone is liable.50

To charge one executor with devastavit by his coexecutor it must be shown that he in some manner knew or assented to the wrongful acts of the other. To impose liability upon him it is necessary that he either consented to the wrong or neglected some duty based upon knowledge or suspicion of actual or intended waste or misappropriation. The basis of liability is either the perpetration of wrong or the neglect of a duty.51

§ 1524. Effect of Agreement Between Coexecutors as to Control and Management of Estate.

It is against the policy of the law for coexecutors to make an agreement whereby the affairs of the estate shall be administered by one of them only.52 It is proper, however, for joint executors, by an arrangement among themselves, to subdivide the work, each attending to particular matters.53 But one representative can not escape liability by turning over the control of the affairs of the estate to his coexecutor if, by reasonable attention on his part, he could have prevented the wrong committed by the other.54

50 Hall v. Carter, 8 Ga. 388; McKim v. Aulbach, 130 Mass. 481, 39 Am. Rep. 470; Gaultney v. Nolan, 33 Miss. 369; In re Hunt, 30 Misc. Rep. (N. Y.) 613, 78 N. Y. Supp. 105; Cocks v. Haviland, 124 N. Y. 426, 26 N. E. 976; Ochiltree v. Wright, 21 N. C. 336; In re Myer's Estate, 187 Pa. St. 247, 41 Atl. 24.

51 English v. Newell, 42 N. J. Eq. 76, 6 Atl. 505; Croft v. Williams, 88 N. Y. 384.

And if one executor by agreement with his coexecutor allows the latter possession and control of all of the assets of the estate, he will be held liable for devastavit by the latter.5

55

Where one of two coexecutors entrusts to the other practically the entire management of a particular part of the estate, and such other assumes to take practically complete charge of that part of the estate entrusted to him and which is placed in charge of an agent, and a loss occurs through his failing to give due and proper attention to the business which he assumed to and did control without molestation from his coexecutor, the loss must be borne by him solely, since fault can not be imputed to the other executor in reposing confidence in him.56

§ 1525. Effect of One Executor Delivering Assets to a Coexecutor.

Each of several executors is equally entitled to the possession of the personal property and there is no reason why one of such representatives should not have possession of a part of the assets of the estate. It thus being proper for one executor to have possession of property of the estate, his coexecutors, in the absence of any assent or negligence on their part, are not liable for his wrongs. A different case is presented, however, where one executor who receives or has possession of any assets of the estate, delivers control and possession of the same to a coexecutor. Such surrender of possession and control does not relieve the executor making the surrender from liability

55 Hinson v. Williamson, 74 Ala. 180; Ames v. Armstrong, 106 Mass. 15; Croft v. Williams, 88 N. Y.

56 Cheever v. Ellis, 144 Mich. 477, 11 L. R. A. (N. S.) 296, 108 N. W. 390.

for devastavit by the other." The wrong does not consist in the mere fact of the delivery of the goods to the coexecutor, nor that they are in the possession of both since as a matter of fact they are not. But an executor who negligently delivers assets to a coexecutor without good cause, and who is negligent in not seeing that they were properly applied when he could have done so by the exercise of reasonable diligence, is responsible for the loss to the same extent as the one who actually perpetrates the wrong.58 However, if one executor surrenders assets of the estate to his coexecutor in good faith, without cause for suspicion of any intended wrong on the part of the latter, and some good reason exists for the surrender, he will not be held liable for devastavit by his coexecutor. It is a wrongful act or omitted duty that is the foundation of liability."9

The rule is the same where one executor, by reason of his acts, allows assets of the estate to come into the hands of his coexecutor.60 If one executor, by reason of his

57 Lees v. Sanderson, 4 Sim, 28; Candler v. Tillett, 22 Beav. 257; Edmonds V. Crenshaw, 14 Pet. (U. S.) 166, 10 L. Ed. 402; Hinson v. Williamson, 74 Ala. 180; Nettman v. Schramm, 23 Iowa 521; In re Dougherty, 43 Misc. Rep. (N. Y.) 468, 89 N. Y. Supp. 549; Matter of Hunt, 88 App. Div. (N. Y.) 52, 84 N. Y. Supp. 790; Johnson v. Johnson, 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72; Sparhawk v. Buell, 9 Vt. 41.

58 Williams v. Nixon, 2 Beav. 472; Hinson v. Williamson, 74 Ala. 180; Sanderson's Estate, 74 Cal. 199, 15 Pac. 753; Whiddon v. Will

iams, 98 Ga. 310, 24 S. E. 437; Insley v. Shire, 54 Kan. 793, 45 Am. St. Rep. 308, 39 Pac. 713; Gaultney v. Nolan, 33 Miss. 569; English v. Newell, 42 N. J. Eq. 76, 6 Atl. 505.

59 In re Osborn, 87 Cal. 1, 11 L. R. A. 264, 25 Pac. 157; Mosely v. Floyd, 31 Ga. 364; Matter of Demarest, 1 Con. Surr. 200, 9 N. Y. Supp. 292; Paulding v. Sharkey, 88 N. Y. 432.

Compare: Bruen v. Gillet, 115 N. Y. 10, 12 Am. St. Rep. 764, 4 L. R. A. 529, 21 N. E. 676.

60 Matter of Storm, 28 Hun (N. Y.) 499; Johnson v. Johnson,

actions, enables his coexecutor to obtain the sole possession of money belonging to the estate which he could not have obtained but for the actions of the former, and such money is thereafter misappropriated by the coexecutor, both are held liable therefor.61 The rule is that if one executor, by reason of actions on his part, permits devastavit by a coexecutor, he will be held equally liable with him.€2

§ 1526. Liability for Devastavit by Coexecutor Permitted to Occur Through Negligence.

A wrong committed by one executor will not charge his coexecutor unless the latter in some way contributed to it, for the testator's misplaced confidence in one should not operate to the prejudice of the other. One executor is not liable because he does not inquire of his coexecutor where he has the money belonging to the estate, there being no reason to suspect any misappropriation.

2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72; Sparhawk v. Buell, 9 Vt. 41.

61 Candler v. Tillett, 22 Beav. 257, 52 Eng. Reprint 1106; Langford v. Gascoyne, 11 Ves. Jun. 333, 32 Eng. Reprint 1116; Townsend v. Barber, Dick. 356, 21 Eng. Reprint 307.

62 Peter v. Beverly, 10 Pet. (U. S.) 532, 9 L. Ed. 522; Turner's Exrs. v. Wilkins, 56 Ala. 173; State v. Belin, 5 Har. (Del.) 400; Hall v. Carter, 8 Ga. 388; Davis v. Walford, 2 Ind. 88; Moore V. Tandy, 3 Bibb (Ky.) 97; Fonte v. Horton, 36 Miss. 350; Van Pelt's Exrs. v. Veghte, 14 N. J. L. 207; Wilmerding v. McKesson, 103 N. Y.

But the rule

329, 8 N. E. 665; Kerr v. Kirkpatrick, 43 N. C. 137; Anderson v. Earle, 9 S. C. 460; Fulton v. Davidson, 3 Heisk. (50 Tenn.) 614; Caskie's Exrs. v. Harrison, 76 Va. 85.

63 Wilson's Appeal, 115 Pa. St. 95, 101, 9 Atl. 473; In re Myer's Estate, 187 Pa. St. 247, 41 Atl. 24.

To the same effect see: In re Hall's Estate, 47 Hun (N. Y.) 636, 14 N. Y. St. Rep. 540; Kerr v. Kirkpatrick, 43 N. C. 137.

For a fraud perpetrated by one of two executors in the sale of the testator's estate, the other executor can not be held liable where it appears that he took no