The opinion
McAvoy, J.
(dissenting). These trustees who have been directed to account for the peculations of their cotrustee occupied to him and to this estate, with the acquiescence of their cestuis que trustent, the state of passive trustees who cannot be held responsible for what the defaulting trustee has received and converted. They have never known of or assented to the misapplications. They have not consented to the waste. They have neglected no duty consequent upon their knowledge of a misapplication accomplished or projected. These are necessary grounds of liability, not found in the proof.
The judgment should, therefore, be reversed except as to the proceeds of the Van Rensselaer note.
Judgment affirmed, with costs to the plaintiffs, respondents, against the defendants James T. Phelan and John M. Phelan, individually and as trustees, etc., of James J. Phelan, deceased.