(dissenting) :
I am unable to agree with the views taken by my brethren.
After the decree which charged the executor with a certain balance and directed its payment, execution was issued against his property and returned unsatisfied. Demand for payment was made and an order granted to show cause why he should not be punished. On the return of that order the executor showed his actual inability to pay; his insolvency and his want of any property whatever. These facts were really not disputed. The parties entitled to receive payment showed, by affidavit, that in 1878 the executor transferred property, which they claim was in fraud of creditors. The executor in response made an affidavit that the transfer was in consideration of valid debts and was not in excess of such debts. He also showed that when he received the money of the estate and used it in his business (about 1876), he believed the money would be safe and he would be able to produce it when called uj>on, but that he had, since 'that time, suffered losses in his business. As the petitioner did not dispute the fact of the executor’s actual insolvency and inability to pay at the present time, those facts must be taken as conceded. Undoubtedly the executor did wrong in using the money of the estate in his business. But it is not for that act that he is adjudged in contempt. So, if the transfer of his property was to pay valid debts, it was a lawful transaction. If, on the other hand, it was made *311to defraud creditors, tbe executor cannot set it aside and get tbe property back. , In any case he cannot be punished as for a contempt, because he transferred his own property, fraudulently or otherwise. Laying aside the cases where a person may be fined for misconduct in court and the like, I understand that the process of punishment for contempt is intended to compel a person to do that which he can do. It is not proper to punish him for not doing that which he cannot do.' This is the doctrine of Watson v. Nelson (69 N. Y., 536), and it is illustrated by the case of Baucus v. Stover (89 N. Y., 1). If we take the Code (§ 2555), the language is, “ refuses or willfully neglects to obey.” One does not refuse or willfully neglect to do that which he cannot do. If the executor had funds in his hands, or if he was in possession of securities and refused to deliver the securities or pay the funds, the case would be different. But in this case he is fined to the whole amount of the balance due from him, and is committed to jail until he shall pay this fine and costs and fees; that is to say, he -is to be imprisoned for life, unless (as is probably hoped), the sympathy of his friends may induce them to raise the money. I do not think such is the law.
But it is said that by the Code (§ 2552), the decree of settlement is conclusive evidence that there are sufficient assets in the hands of the executor. This cannot mean that it is conclusive as to his actual ability to pay. If this were so, then the surrogate could never at any future time, relieve this executor from imprisonment, because there would be a conclusive decree that the executor was able to pay. This difficulty was seen in Baucus v. Stover, where it was held that while an executor should be charged in his accounting with a debt owing by him to the deceased, yet .that he should not be liable therefor as if it were money actually in his hands. Yet the Revised Statutes use language which, if unqualified, would make the executor chargeable as for so much money received. I think, therefore, that section 2552 must be understood to mean that the decree is conclusive as to the amount with which the executor is chargeable; and that it does not mean that it is conclusive as to his actual possession of the funds. (Compare this section with 3 R. S. [5th ed.], p. 204, of which it seems to be a re-enactment.)
It is said that, as the executor once received these funds, he is *312presumed to have them still. But a man is not to be imprisoned for life upon a presumption. That he is chargeable with the funds is true. It is true, also, that he ought to pay them to the petitioners. But when he has no means or power to pay, he ought not to be punished for not paying.
It may be said that the surrogate may hereafter discharge the executor. But what ground can the executor present at a future day for his discharge, which he does not now present ? If inability to comply with the decree will be a reason for the discharge a year from this time, then it is a reason now why he should not be imprisoned, otherwise the power of commitment in such cases is at the mere will of the court as to its continuance. The executor has misused trust funds. That may make him liable under chapter 208, Laws 1877. It may make him liable to an execution against the person. But I do not believe that such an act, or the inability to pay caused thereby, makes him liable to perpetual imprisonment, or to imprisonment at the future discretion of the Surrogate’s Court.
I think the order should be reversed.
Order affirmed, with costs.