In re Estate of Holbert

By the Court, Wallace, C, J.:

1. The loan made by' Bock, the executor, through his attorney, to Davis and others, was not made “ upon first-class real estate security,” as directed by the will. The sum loaned was one thousand two hundred dollars, and the real estate upon which it was loaned, worth" no more than two thousand two hundred dollars, was already under mortgage to one Ward for two thousand dollars.

2. The advice of his attorney cannot shield the executor from his responsibility, otherwise clear, on account of this unauthorized loan. The loan was made in the county of San Joaquin, while the mortgaged premises were situated in the neighboring county of Stanislaus. No examination of the records in the latter county was made for the purpose of ascertaining whether or not the title was already encumbered; no abstract was furnished the attorney; there was therefore nothing—no fact submitted to him—upon which his opinion could be had, and the advice of the attorney given under such circumstances, was not the “professional advice ” under which the executor can protect himself from liability for loss incurred.

3. The loan having, been originally one not authorized by the will, the expenses of litigation, attorney’s fees, etc., incurred by the executor in the foreclosure suit subsequently instituted by Ward, cannot be charged against the estate, nor allowed to the executor in the settlement of his accounts.

' 4. The loan made under the circumstances appearing, while certainly far from prudent in a business point of view, was nevertheless made by the executor in “good faith,” as affirmatively appears by the bill of exceptions settled below; and, as observed by Chancellor Kent, it is the habit of the Court to treat with great tenderness trustees acting in good faith. (4 Johns. Ch. R. 627.) The sum loaned was one thousand two hundred dollars; the rate of interest stipulated to be paid by the borrowers was one and one half per cent, per month. The sum collected upon the loan by the executor was only four hundred and sixty-eight dollars. Of course the executor, upon settlement of his accounts, is not to be charged with interest at the rate stipulated to be paid by the borrowers. If such a rule could ever be properly applied, it could only be done in a case where mala fides was established, and here, as we have seen, there was none. Nor do we think that, under the circumstances, the executor should be charged with interest, even at the statutory rate. It does not appear by the record that he could, in the exercise of reasonable diligence, have loaned it to others at that rate, or at any rate of interest whatever, during the time it has remained in the hands of the borrowers. The basis of accountability under such circumstances, is the same as though it had been kept on hand by him for the purpose of making a loan, but without the opportunity of doing so, in which case he would not have been chargeable with interest. The executor should, therefore, have been held liable only' for the sum of seven • hundred and thirty-two dollars, which is the balance of the loan remaining uncollected after applying the four hundred and sixty-eight dollars actually received by the executor. If, however, any sum exceeding the sum of seven hundred and thirty-two dollars and the actual expenses of the executor, incurred by him in connection with the loan should be hereafter collected by the executor upon the loan made to Davis, the excess is, of course, to be placed to the credit of the estate, and will constitute a new subject of account by the executor.

The order is reversed and the cause remanded, with directions to settle the account upon the basis indicated in this opinion.

Mr. Justice Rhodes did not express an opinion.