Williams v. Campbell

SlMBALL, J. :

The administrator was licensed by the probate court to sell the drugs on nine months’ credit. Instead of complying with the order of the court, he made a private sale in Confederate money. This occurred in 1863, no report was made until after the war. The proof tends to show, and is perhaps satisfactory on the point, that Williams acted in good faith, and supposed he was doing the best that, under the circumstances, was practicable.

The general rule, applicable to all acting in a fiduciary capacity, including trustees, is, that so long as they keep themselves within the line of duty, are actuated by good motives and use ordinary care and diligence, they are not personally chargeable with the loss or depreciation of funds intrusted to them. But if they assume a discretion not confided to them, or transcend authority defining their mode of action, they are (however pure their motives) bound to make good losses which ensue. Coffin v. Bramlet, 42 Miss. 208, and cases cited.

It follows that, inasmuch as the administrator was guilty of a breach of trust in selling the drugs at private sale for cash, he is accountable to the creditors for a fair, reasonable value in all the circumstances.

By that sale he parted with the goods. The testimony does not impeach the fairness of the price obtained. Considering the unsettled condition of the country at the time, the risks and dangers to winch this sort of property was exposed, as shown by the testimony, and the further fact that the sale was made for Confederate money, then the only currency, which was generally taken for debts, and in the purchase of property, and also the further fact that the ad ministrator was prompted by fair motives, we think that he ought to be charged with the sum realized for the drugs, reduced to the value of United States currency.

The testimony'proves the relative value of Confederate money and gold; and if that be now substituted for currency, we think substantial justice will be done between the administrator and the creditors. He ought to be charged with interest, because he did not apply the Confederate money to pay off creditors as he might have done, and was his duty to have done. The very object of the sale was to obtain money to discharge debts. If that use could be made of it, as the testimony shows, it was manifestly his duty, under the law, to have promptly so applied it. If by holding the money, in violation of his trust and duty, it has perished in his hands, he should bear the loss, and not the creditors. If he invested the money in Confederate bonds without.authority of the probate court, he can claim no protection from that act. Coffin v. Bramlet, 10 Smedes & Marsh. 404; 33 Miss. 540, 553; 41 ib. 411.

The proposition made by the counsel for the appellant is correct, and sustained by the authorities cited, that the confirmation of the report of a sale is final. It is final, in so far as it determines that the sale has been made under a decree of the court. Proceedings to set the sale aside must be by a review in the appellate court, or by original proceedings in a court of original jurisdiction. But how does the principle benefit the appellant ? His report was made in 1865, the sale in 1863. He embodies in it, not merely a report proper, but also an inventory of the credits, and an account of the disposition which he had made of the funds. Three separate, distinct elements are embraced, two having no connection with a sale. A confirmation, in so far as the principle of conclusiveness is concerned, could only take effect upon the sale; as to the other matters of the inventory, and the use and appropriation of the money, both are impeachable on the final settlement. It would be legitimate for the creditors to show that, credits were omitted from the inventory or schedule, which were collected, or might have been. So, also, it would be entirely proper, on final settlement, to controvert that matter of the report, •which was of the character of an account of the disposition which had been made of the money. A report of a sale is one thing ; a statement of how the money had been used is another and different thing. If both are included in the same report, a confirmation does not preclude creditors from inquiring into the lawfulness of the disposition of the fund. That part of the report is, in effect, a partial account or settlement, and can only be respected as such on final settlement. It is well settled, that at the final settlement, these anterior, partial or annual accounts are only prima facie correct, in favor of the administrator, but may be impeached by creditors or distributees, either for matter on their face or de hors. It is unnecessary to decide whether the rule propounded by appellant’s counsel applies to a sale made in violation of the order of the court, and without deriving any sanction from it, is made valid by confirmation or not; since we have reached the conclusion that the price obtained was the fair value of the goods, and the administrator is only chargeable with the value of the Confederate money and interest.

These views dispose of all the material questions in controversy. The final settlement will be made in accordance with these views, which will guide the commissioner in taking the account.

Decree affirmed.