State ex rel. Fisher v. Ritchey , 64 N.C. 172 ( 1870 )

Dick, J.

We are aware of the many difficulties which were encountered during the late war by the fiduciary holders, of property, and we are disposed to consider such cases with all the liberality which the facts will justify.

Such persons, in order to free themselves from responsibility for the loss of such property, — must show that they acted in good faith and with the ordinary care which prudent men exercised in the management of their private affairs: Shipp v. Hettrick, 63 N. C. 329; Cobb v. Taylor, at this Term.

This case was argued with much ability; and, after full consideration, we are of the opinion that the facts show that the testator of the defendant did not act with proper care in regard to the funds in question. He paid them to the Confederate' Beceiver five months before the estate of the intestate was settled, and before there was any decree' of the Confederate Court requiring such payment. The process served upon him, only required him to appear before said Court, and show cause why such a decree should not be made. The Court to which he was summoned was to be held in an adjoining county, and was easily accessible by Bailroad. It does not appear that he attended the Court, or employed counsel to assist him in protecting the funds from confiscation, although he would have been justified in using a part of the trust funds for that purpose. His conduct was not that of a prudent trustee who was desirous of protecting the rights of his cestui que trust. He paid over the funds without being compelled to do so by any legal process, and we must infer that he acted voluntarily and with the purpose of assisting in the enforcement of the confiscation laws.

If he had employed counsel, and made a proper defense in Court, and a decree had been made against him; and he had paid over the fund, to free himself from the penalties of an indictment or attachment; then he might not have been responsible for the loss of the fund.

Per, Curiam. Judgment affirmed.