(dissenting):
I understand that the case of Hood v. Hood (85 N. Y., 561) holds distinctly that no action can be maintained against the sureties on an executor’s bond save in case of disobedience of some order of the surrogate. So it is expressly stated at page 574.
In the present complaint the plaintiff alleged gross neglect on the part of the executor, in failing to sell the real estate. Still, until there has been an accounting, it does not appear whether, on the whole, he is in default.
Again, the bond was given in 1882. In August, 1884, the plaintiff recovered damages against the executor in a common-law action, for neglect to execute his trust. There is no allegation th*at *582this neglect occurred subsequently to the execution of the bond.j, The executor had been acting since 1871.
It is suggested that on an accounting of the executor and testar mentary trustee, before the surrogate, he could not be charged with, damages for a neglect of duty in not selling the land. The surrogate has now jurisdiction to pass the accounts of a testamentary trastee. (Code, § 2802 et seq.) ■
A negligent administration of assets, defeating the rights of parties, amounts to a devastavit. (Williams’ Executors, 1801 et seq.) On an accounting, if an executor has neglected to sell stocks which he was directed to sell, and thereby has caused a loss to the estate, he may be charged on an accounting. (Daly's v. Estate, 1 Tucker, 95 ; see, also, Code, § 2817, sub. 2.) It is very common on an accounting to charge executors for loss occasioned by improper investments. I see no reason why they may not be charged for any other injury to the estate or to the parties interested. Indeed it seems to me quite doubtful whether an action at law will lie by the eestui que trust against a trustee for misconduct, while the trust is still in existence. (Dias v. Brunnell's Executor, 21 Wend., 9; Hill on Trust., 518; Pomeroy’s Eq., § 1080.) “ In general a trustee is only suable in equity in regard to any matters touching the trust. But if he chooses to bind himself by a personal covenant in any such matters he-will.be liable at law.” (Story’s Eq., §§ 975a, 962, 971.) A cestui que t?'ust cannot bring an action at law against the trustee while the trust is still open., (Johnson v. Johnson, 120 Mass., 465; Davis v. Coburn, 128 id., 377; Congdon v. Cahoon, 18 Vt., 49.)
It seems to me a novel doctrine that the question whether a trustee has neglected to perform some trust duty should be decided by a jury, and that a jury should award damages. I should have supposed that a trustee was entitled to the protection of a court of equity on the question between him and his cestui qux trust respecting the performance of a trust duty. But however this may be as to the executor and trustee himself, the right of sureties not to be sued until after the executor or trustee has disobeyed some order of the surrogate, appears to me to be established beyond question in Hood v. Hood.
Therefore I think the judgment should be reversed.
Judgment affirmed, with costs.