Christy v. McBride , 2 Ill. 75 ( 1832 )

Smith, Justice,

delivered the opinion of the Court:

In this case the only question to be determined is the liability of the administrator for the amount of the notes collected of the debtor of the intestate, (who resided in Virginia,) through his agent, and the misapplication of those funds by the agent, after collection. It is contended, by the appellants, that by law an administrator is responsible if his agent embezzle the assets of the estate; and that the funds being used by Tate, who afterwards became insolvent, is equivalent to an embezzlement; and that therefore the administrator, in the present case, is liable. The case cited in support of this principle, and referred to in Toller, and in Dane’s Abridgment, is not borne .out in the case in 6 Modern, to which they refer. The only question decided by the Court, and the only one before them, was a question of costs; and as the party might in that case, have sued, without describing himself as administrator, it was held he should pay costs. It is admitted, and the facts in this case show, that the administrator has acted prudently and honestly; that his agent at the time he was employed, was a person of reputation and property; and although he became afterwards insolvent, and used the money collected, there is no evidence of negligence on the part of the administrator in the use of the proper means to collect the money of his agent. If an administrator has acted for the benefit of the estate, used proper diligence, and acted with ordinary care and circumspection in the discharge of his trust, he ought not to be held answerable for losses which could not have been foreseen, and which ordinary precaution may not guard against. The general principle which seems to run through all the authorities, as to his liability, recognise the doctrine, that if he acts honestly and prudently, though there be a loss to, or diminution of, the testator’s estate or rights, he will not be liable.⁽¹⁾

Where there is manifest fidelity and ordinary diligence displayed, the rigid rules of law will be reluctantly enforced.⁽¹⁾ Another view might be taken of the case: the administrator could not, in his fiduciary character, have sued these notes unless he had taken out letters of administration in Virginia. It no where appears that he did so; but the case shows, on the contrary, that the debt must have been collected in the name of the agent. Until the administrator had received the money, could it be considered as assets in his hands ? and is he chargeable at all, in his representative character, until this appears ? Whether he would be personally liable under a supposed interference with the collection of debts not warranted by his character of administrator, out of this State, it is not proper now to deter-. mine. But we very much doubt whether he was legally bound to have made the collection of the notes in Virginia; and if not compellable so to do, may not the parties, in the present instance, have mistaken their remedy ?

On a review of the whole case, and considering the powers of the Probate Court to adjust settlements like the present, upon the broad principles of equity, we are of opinion that the Circuit Court did not err in affirming the judgment of the Court of Probate, and that the judgment of the Circuit Court be affirmed with costs.

Judgment affirmed.

(1) 1 Dane’s Abridg. 590; Toller’s Ex. 481; 1 P. Wms. 141; 3 P. Wms. 381.

(1) 2 Wheat. 32.