Shipp, Ex'r v. . Hettrick , 63 N.C. 329 ( 1869 )

Settle, J.

All the questions presented by the pleadings ii» this cause, have been disposed of in the case of Cummings v. Mebane, decided at the present term of this Court.

It is there stated, that the degree of diligence, to which those' who undertook to discharge a trust during the war, should! be held liable, is that which a prudent man, at that time,, would have exercised in the management of his own affairs.

And it is said in the same case, that, in the absence of any suggestion of fraud or negligence, where a party acting in. good faith, received Confederate currency, and afterwards: lost, not only trust funds, but his own also, he is to be regarded, with all the favor consistent with the policy of the law, in regard to those who undertake to discharge a trust.

The plaintiff’s bill alleges, and all the proof is to the same-effect, that there had been no such depreciation in Confederate currency in 1862 and 1863, the times at which he received it as executor, as prevented it from passing currently; and that it continued to do so, for some time thereafter. While this fact may furnish sufficient justification for receiving Confederate currency, it, at the same time, forbids the idea of holding it from 1863 to 1865, when it was growing worse every day, and finally became worthless, without showing some good reason for so doing, or, at least, such circumstances as would negative the suggestion of negligence. As this kind of money was passing currently for some time after it came it the hands of the plaintiff, it is his misfortune not to have invested it in. some maimer, or hare set it aside specially for tbe benefit of tbe party interested. He states that be invested bis own funds in Confederate bond*, intending to give Louisa E. Hettrick,. or tbe person authorized to act for her, choice between tbe Confederate money and tbe bonds; but it is not admissible for a trustee to tender an unfortunate investment of Ms own, in discharge of a liability incurred in tbe management of tbe funds of another. If tbe plaintiff bad invested this fund in Confederate bonds, or bad loaned it out, upon individual security, be would not have been held responsible although tbe investment may have proved a total loss. Or if be bad separated this money from all other moneys in bis bands, and retained it as a special deposit for Louisa E. Hettrick, tbe case would have been different, notwithstanding tbe fact that it became worthless. But be did none of these things; on the contrary be kept it with bis own moneys. And while it may be admitted that be always bad on band an amount sufficient to meet all tbe demands due Louisa E. Hettrick, there never was such a separation of this particular money from all moneys-in bis bands, as to make it cease to be his, and become a part her estate.

If be had made a general deposit of this money in bank, in bis own name, it could not have relieved him, but if be bad made a special deposit of a particular parcel for this particular purpose, it would have been otherwise.

Admitting that the facts in this case make it one of peculiar hardship, we are constrained bold, that the plaintiff must be charged with the value of the Confederate currency, at tbe time it came into bis bands.

To admit that a trustee might in 1862 or'1863, receive Confederate currency, and permit it to become totally worthless on bis bands, without showing that he bad invested it in some manner, or bad made a special deposit of it, for tbe benefit of tbe party interested, would open the door so wide, that not only negligence, but fraud also, in its grossest forms, could easily escape.

Tbe report of tbe commissioner, made to tbe last term of •this Court, should, be reformed, so as to charge the plaintiff, in addition to the items reported against him, with the value •of the Confederate money received on the sale of notes in 1862, and also with the value of the Confederate money received in 1863, on the bond of O. L. and J. W. Harris. 'To this end, there will be a reference to the clerk of this Court, and the cause will stand on further directions.

Per Curiam. Decree accordingly.