Cunningham's Estate

Opinion by

Mb. Chief Justice Mitchell,

Full consideration of the evidence in this case has brought us to a different conclusion from that of the court below. The auditor and the court have both reviewed the facts in detail, and it would serve no useful purpose for us to do likewise. It will be sufficient to indicate our conclusions briefly and generally.

The will gave the executor large discretion and he interpreted his powers liberally. Instead, therefore, of pursuing the directions of the will strictly he followed his own judgment. His management was somewhat dilatory, with an inclination to postpone sale perhaps longer than was really necessary, but the error, if it was one, was of judgment only. There is no evidence which in any fair view supports the charge of fraud. He assumed the risk of loss to himself by departure from strict compliance with the will, but the result was gain and not loss to the estate. After a management of twenty-two years which even if dilatory in realization was careful, attentive and successful, he filed an account (with many payments to the heirs in the meantime) showing an increase of the estate in his hands to threefold the appraisement and expectation.

Two facts are of special importance in the view taken by the court below. One a statement of account sent to Mrs. Barrows by the appellant in 1876. The court holds the accountant responsible as if for a fraudulent misstatement, but we fail to see any evidence that the error in the valuation of appellee’s share in the estate, if it was an error at all at that time, was in anything but judgment in not fully appreciating the advancement in the value of real estate.

The other fact is the sale of Mrs. Barrows’ interest to Miles in 1882. The court found that the accountant was himself the real purchaser, but on no better evidence than that in a settlement eighteen years later, of some matters between Miles and the accountant, the latter took a transfer of the interest from Miles to himself. And this in the face of the fact that there was no reason for such a secret and roundabout action as both Mrs. Barrows and' her husband were at the time writing to the accountant, urging him to buy the interest himself, and when the sale to Miles was made both she and her husband wrote expressing their thanks and satisfaction, and made no complaint until nineteen years later. So serious an accusation should have a less flimsy foundation to rest upon. The truth is that it was the ordinary case of a needy legatee in haste to realize, insisting on a sale against the advice of the executor, and then after the lapse of years, seeing the loss resulting from her own improvidence, making an ungrateful effort to shift the blame to other shoulders.

The auditor’s findings of facts and treatment of the case are not only prima facie entitled to be regarded as correct, but are in themselves convincing.

The decree is reversed and distribution directed to be made in accordance with the report of the auditor. Costs to be paid by -the appellee.