dissenting:
The only question is, whether the executrix was guilty of such gross negligence in respect to the Conover judgment, that she should be held personally liable for its amount. When the testal or died, and the executrix was appointed, the judgment against Conover was of no value. It was a lien on a farm worth about $4,000; but there were prior judgments to an amount of more than the value of the farm. The testator died in January, 1860. Five years after that time the prior judgments ceased to be a lien by the lapse of the ten years; and for about eight months thereafter, the judgment belonging to the estate of the testator was the first valid lien.
After the appointment of the executrix, the judgment remained in the care and management of the same attorney who had been the attorney of the testator in recovering the judgment; and it continued to be in his care, and in the care of attorneys in good standing, until the executrix was removed. Executions had been issued thereon before the testator’s death, and one was issued after his death,‘and about 1861. These attorneys, from time to time, collected small sums of money which were paid to the executrix.
The executrix acted in good faith, and had no knowledge that the lien expired in ten years. I cannot think that she was guilty of gross negligence.
First. She entrusted the business of collecting the judgment to an attorney in good standing; the same attorney whom the testator had employed. This was certainly what she should have done. It was the proper means for her to take to collect the debt. Indeed, I might say, it was the only means. If she had attempted to collect the debt by issuing an execution herself, she would have *295been guilty of negligence, in case she had made any error in the process. Now, if the attorney neglected his duty in the matter, the executrix was not culpable, and would not become culpable until she should have knowledge of his neglect. Thus, if the administrator of a deceased partner, bona fide, permits the surviving partner to ooll the stock in the due course of trade, he is not to be held responsible for loss to the estate: (Thompson v. Brown, 4 Johns. Ch., 620.)
Second. If she was not negligent in entrusting the business to an attorney in good standing in the first place, there is nothing that I see to show subsequent negligence. It cannot be that an executor is chargeable with gross negligence for being ignorant, that the lien of a judgment ceases in ten years. It may be the duty of the executor to take legal advice, and it may be negligent to fail to do this. But to hold an executor negligent for ignorance of the law, is to say that he shall be wiser than the highest court in the state.
Third. When the executrix came into, possession of this claim it was valueless. It so continued for five years. At any time during that five years the prior judgment creditor might have sold the land and cut off this judgment altogether. Probably by some blunder the prior judgment creditor allowed his lien to expire. But the executrix had no reason to expect that he would do this. It was a thing improbable in itself. A very shrewd business man might have been on the look out for this possible neglect on the part of the prior creditor. It was not however gross negligence to suppose that the prior creditor would not let his lien run out. She could not be expected to foresee all possible future events. Where an investment is made by the intestate, the fact of a fall in the market is not enough to charge the administrators. It must be shown that they have acted unreasonably. (McRea v. McRea, 3 Bradf., 199.)
Finally; if the judgment, at the time when the executrix was appointed had been a first lien, and she had employed a competent attorney to collect it, she could not have been responsible for his neglect, not known to her. Still less can she be liable, when she has employed such an attorney, and only by some accident not to be expected, does the judgment at the end of five years, become a first lien and capable of being collected.
*296“This court has always treated trustees acting in good faith with great tenderness.” (Thompson v. Brown, ut supra.)
I think the decree should be modified in the respect appealed from with costs.
Present — Learned, P. J., Bockes and Osborn, JJ.Decree of the surrogate affirmed with costs.