Dean v. Rathbone's Adm'r , 15 Ala. 328 ( 1849 )

DARGAN, J.

The plaintiffs in error contend, that the administrator became liable for the value of the slaves, by permitting Greene, for whose use they were bought by Eldridge, to take them into his possession, and to remove them from the State, before the bond stipulated to be given for the purchase money had been executed. If the bond, and security agreed to be given, had not been afterwards executed, the administrator would unquestionably have been liable. Betts v. Blackwell, 2 Stew. & Por. 373. But we cannot hold the administrator personally liable for delivering the goods purchased at his sale, if the purchaser in a short time after-wards, executes the security required by the terms of the sale. For if the purchaser, after he receives the possession of the goods, gives the security required, it is a compliance with his contract, and if the purchasers comply with the terms of sale, the administrator cannot' be charged with negligence, merely because the purchaser received the possession of the goods, before the security required was executed.

2. By the terms of the sale, a credit of twelve months was allowed the purchasers. The bond which was given for the purchase money of the three slaves bought by Eldridge for Greene, fell due the first of January, 1844, had suit been instituted on it at any time within six or seven months after its maturity, the money would have been made; but the principal, and one of the securities, being considered entirely solvent, the administrator did not commence suit during the year 1844. In March, 1845, the makers executed a power of attorney to confess judgment, at the next September term of the circuit court, but shortly after failed. The plaintiffs in error insist, that the omission of the administrator to sue during all the year of 1844, is such negligence as should charge him with the amount of the bond. What acts, or omissions, will constitute such negligence, as will render an administrator, guardian, or other trustee, personally liable, is a question on which there is such a number of authorities, that it is almost as difficult to collect them, as it is to reconcile them. But I think the rule to be extracted from them is this : If an administrator, or any other trustee, acts within the scope, and on the line of his duty, and exercises good faith, and ordinary diligence in regard to the property entrusted to his care, he is not responsible, although loss befall the estate, by the insolvency of those who may be indebted to it, or who may have possession of the property belonging to it. Clough v. Bond, 3 Mylne & Craig, 496; 2 Story’s Eq. 511, 512; 2 Johns. Ch. Rep. 76; 4 Johns. Ch. R. 619. Applying this principle of law to the facts of this case, we cannot hold the administrator liable. In selling the slaves, and giving credit, he was acting in accordance with the provisions of the will, and within the line of his duty. The bond was good at the time it was received, and the credit of the principal, and one of the securities, was not doubted, until about the time, or just before their failure. There was no immediate necessity to call in the money, for any purpose required by the estate, and perhaps no one during the year 1844, would have considered the bond a doubtful security. Under such circumstances, a prudent man, without subjecting himself to the charge of negligence, or a want of ordinary care, might decline to sue, or to call in the money.

We cannot apply the stringent rule, that an administrator mhst in all cases sue immediately, if the debts due the estate be not paid at maturity. He must be allowed a reasonable discretion, whether to sue immediately or not. To say that án administrator must in all eases sue immediately, if the debts of the estate be not paid at maturity, would often involve estates in unnecessary expense, which might be avoided by a short delay, without hazard or inconvenience.

In the exercise of his judgment, however, ‘whether to sue or nothe must have a due regard to the interest of the estate, and if the circumstances evince a want of reasonable care and diligence, by means of which loss befalls the estate, the administrator must be held responsible,' as this administrator, in taking the bond and security, did not violate his duty; and as his failure to sue the bond, under all the circumstances, does not show a want of reasonable care and diligence, we cannot charge him with the loss.

Let the decree of the orphans’ court be affirmed.