A. J. WALKER, C. J.
The court below overruled the motion to charge the appellee with the value of certain cotton belonging to his intestate, which he had sold. Several reasons are urged against the correctness of this ruling, which must be examined seriatim.
1. It is argued, that the order for the sale of the cotton is void, and that the sale being therefore unauthorized, the administrator has converted the cotton, and is chargeable with its value. The order of sale is made in reference to the third section of the act of 16th February, 1854, (Pam. Acts, p. 45 ; Revised Code, § 2067,) which is in the following words : “ The several courts of probate of this State shall have power to order the sale of personal property, liable to waste, or of a perishable nature, belonging to the estate of any deceased person, whenever it shall appear by proof, upon the application of the representative of any such deceased person, that such sale would be beneficial to the interests of such estate.”
The doctrine was established in this State in 1838, and has been since sustained, that the' jurisdiction of the probate court to make orders of sale, such as those mentioned in that section, is maintained, when an application is made conformably to the statute; and it is now held, that no subsequent irregularities vitiate-the sale, and that, in determining the question of jurisdiction, when a collateral assault is made upon the order, the language must be construed favorably to the maintenance of the jurisdiction.—Wyman v. Campbell, 6 Porter, 220; Satcher v. Satcher, at the last term; King v. Kent, 29 Ala. 542 ; Hatcher v. Clifton, 33 Ala. [614]*614301; Wyatt v. Rambo, 29 Ala. 510; Matheson v. Hearin, 28 Ala. 210; Field v. Goldsby, 28 Ala. 218; Doe v. Riley, 28 Ala. 165.
The ascertainment of the true meaning of this statute is facilitated by a slight transposition of words. Its obvious intent is to give to the probate court power to order, on the application of the representative, the sale of the specified character of personal property, whenever it shall appear by proof that such sale would be beneficial. The question here is not, whether the petition for the sale would have been good on demurrer. Probably it would not, on the principle that a pleading should aver all that the party is required to prove. The question is, whether the application, which in this case is in writing, made the representation requisite to authorize the court to hear and decide the case. The statute does not require the applicant to represent that the sale would be beneficial to the interests of the estate, but that such fact should appear by proof. The manner in which the fact should appear to the court, is carefully prescribed; and it is not for us to superadd the requisition, that it should appear in another manner. “ Indusio unius est ex~ dusio alterius.” There is power to order, on the application of the representative, the sale of certain classes of property ; but, after the jurisdiction attaches, in consequence of the application, proof of a particular fact is required. The administrator is not required to represent that the sale would be beneficial, and his failure to do so can not make it void. The authorities above cited clearly show, that the failure to represent such fact, admitting that there was such failure, does not sustain a collateral impeachment of the order. In several of them, there was a clear omission of the court to do things prescribed as preliminary to the order, and an omission to aver them in the initiatory petition; and some of them are made in reference to a law which not only requires proof, but prescribes the mode in which it is to be made. All that is necessary to the validity of the order is, that the application should show the jurisdictional fact. That fact, in this case, is, that the property was liable to waste, or of a perishable nature. Is that shown in the application ?
[615]*6152. The statement of the petition is, that the property was “of a character liable to waste, or “be consumed by fire.” Liability to waste is one of the grounds of sale; but it is argued, that that ground is not alleged : that the signification of the sentence is, that one of two things is true—either that there is a liability to waste, or a liability to consumption by fire. This construction of the language might be adopted, if we were bound to construe the word in the sense in which it is used by the best writers of the English language, and thus sacrifice the obvious meaning of the petition. “Or” is defined to be a “connective, that marks an alternative“one of two; either; other.” In strict accuracy, such is its signification, (Webster’s and Worcester’s Dictionaries,) and it would be so understood in demurrers to pleadings. But it is not always used in that sense. It is often, in common parlance, and even in written instruments, used in the sense of both. One speaking of a friend, in a city infected with both small-pox and yellow-fever, would scarcely be detected as speaking inaccurately, if he were to say, “ my friend is liable to take small-pox or yellow-fever,” when he really means that there is an exposure and liability to both. Our Savior says: “Eor when two or three are gathered together in my name, there am I in the midst of themyet the Christian world does not understand that text to imply an assurance of his presence when one or the other of the specified numbers are gathered together, leaving it undetermined which. On the contrary, it is understood to convey a promise of presence both in a gathering of two, and in a gathering of three — as well in the one as in the other.
There is no word in the English language more difficult to define, or “of more equivocal import, than the” monosyllable or. — Burrell’s Law Dictionary, “Or.” Jarman, in his work on Wills, in reference to the meaning of this word, says : “ But by far the most numerous class of cases, exhibiting the change of a testator’s words, are those in which the disjunctive or has been changed into the copulative and, and vice versa. It is obvious that these words are often used, orally; without a due regard to their respective import; and it would not be difficult to adduce instances [616]*616of the inaccuracy, even in written compositions of some note. It is not surprising, therefore, that this inaccuracy should have found its way into wills.” — 1 Jarman on Wills, 420, m. p. 443. It has often been held, both in reference to deeds and wills, for the purpose of effectuating the intention, that “or” meant “and,” and the instrument was read as if it contained “and” instead of “or.”—Mallory's Case, 5 Rep. 111; 2 Hilliard on Real Property, 565, § 12 ; Wright v. Kemp, 3 Term, 470 ; Denn v. Keemeys, 9 East, 366; Wright v. Day, 16 East, 67; Jackson v. Blansham, 6 John. 54; Janney v. Sprigg, 7 Gill, 197; Ray v. Enslin, 2 Mass. 554; Oliver v. Heeney, 2 Edw. 242 ; Carpenter v. Heard, 14 Pick. 449; Parker v. Parker, 5 Metc. 134; Sayward v. Sayward, 7 Greenl. 210; Englefried v. Woelpart, 1 Yeates, 41; Turner v. Whitted, 2 Hawkes, 613; Beall v. Deale, 7 G. & J. 216; Den v. Mugway, 3 Green, 330; Ward v. Waller, 2 Spears, 786; Den v. English, 2 Har. 280; Monroe v. Holmes, 1 Brev. 319; Bostick v. Lanton, 1 Spears, 258; Kelso v. Dickey, 7 W. & S. 279 ; Butterfield v. Haskins, 33 Maine, 393. We make so extended a citation of authorities upon this subject, because they prove and exemplify the looseness and confusion which prevail in the use of the conjunctions “or” and “and,” and the freedom with which the courts adopt the meaning consistent with reason and intention.
The allegation of the petition, that the cotton was “ of a character liable to waste, or be consumed by fire,” is nonsense, if it be understood to assert the alternative proposition of liability to the one or the other, but not to both. There is nothing in the liability to waste, which opposes a liability to be consumed by fire, and nothing in a liability to be consumed by hire which opposes a liability to toaste. Cotton certainly may be liable to waste, and is liable to consumption by fire, and a- liability to both may exist at the same time. In common conversation, in a will, and in a deed, the language would be understood to assert a liability both to waste and to fire. Why should itjj be understood differently in this petition ? We could only place a different construction by disregarding our own decisions that such [617]*617instruments are to be interpreted in a light favorable to the validity of the order.
Another position has occurred to us, as an answer to the argument that the order of sale is void for want of jurisdiction. It is this, that the assertion of the liability of the cotton is a statement that it is perishable, with a specification of the mode of its perishableness; and that therefore, even if the statement of the petition be alternative, in either alternative the court had jurisdiction. We mention the proposition, and cite authorities bearing upon it, but we pass it by as a point which it is unnecessary to decide.—Steele v. Wyatt, 23 Ala. 764; S. C., 26 Ala. 639; Millard v. Hall, 24 Ala. 209; Satcher v. Satcher, at the last term; King v. Kent, supra; Hamlet v. Johnson, 26 Ala. 557; Ozley v. Ikelheimer, 26 Ala. 332.
It is also objected to the validity of the order of sale that the petition does not represent the cotton to be “liable to waste,” in the language of the statute, but “of a character liable to waste.” To sustain this position, would require a niceness of verbal criticism, which would scarcely be permissible in the decision of a demurrer to a common-law pleading. The validity of these orders of sale does not depend upon the employment of the statutory language. They will be sustained, if the expressions can, by aid of a favorable construction, be held equivalent.—Satcher v. Satcher, supra; King v. Kent, supra; Hamlet v. Johnson, 26 Ala. 557.
3. Another objection to the validity of the order of sale is, that it authorizes a private sale. We are inclined to think, that, because the Code is an entire revision of the law on the subject of sales of decedents’ property, and a private sale of crops is expressly authorized, while an advertisement of the time and place of sale is prescribed in most (if not all) other cases of sale; and because the legislature has since authorized a private sale, in the single case of a deceased merchant’s goods, that private sales by the representatives of estates, not falling within either of the two excepted cases, and not under a will, are unauthorized by law, notwithstanding there is no express prohibition of [618]*618such sales.—Wyatt v. Rambo, 29 Ala. 510; Ikelheimer v. Chapman, 32 Ala. 676, last paragraph. But this we do not decide, because it is not indispensable. It will be conceded, for the purposes of this opinion, but not as a decided proposition.
Under the law as it existed before the adoption of the Code of 1852, private sales of the property, real and personal, of decedents, were held to be void. But in none of the cases was there an order of court, in a case of which it had jurisdiction, directing a private sale.—Ventress v. Smith, 10 Peters, 161; Wier v. Davis, 4 Ala. 442; Dearman v. Dearman, ib. 521; Fambro v. Gantt, 12 Ala. 298; Hopper v. Steele, 18 Ala. 828; Lay v. Lawson, 23 Ala. 377 ; McArthur v. Carrie, 32 Ala. 75, which is in reference to a statute of Mississippi, identical with the former law pf Alabama—Hutchison’s Mississippi Code, pp. 669, 670, § § 109, 117 ; Bragg v. Massie, 38 Ala. 89. Therefore, the question whether a private sale is void, when made under the authority of a court having jurisdiction of the case, is not res adjudicata- in this State. Now, it is a principle thoroughly imbedded in the jurisprudence of Alabama, that in these proceedings before the probate court, its erroneous action upon any point arising after jurisdiction has attached, does not render its order or decree for a sale of personalty void. The question whether the sale should be private or public, arose after the jurisdiction attached, and upon the hearing of the cause. As to the power to order a private sale since the adoption of the Code of 1852, no decision has been made by this court. All the decisions are above collected, and refer to sales in this State made before the adoption of the Code; and their validity was, therefore, triable by the previous law. The law of Mississippi, in reference to which one of the decisions was made, was the same with our own law. The statutes before the Code of 1852 expressly declared, that it should be “ unlawful” to sell privately, and that the sale should be “ at public sale, to the highest bidder.” The Code omits thus emphatic and direct prohibition and direction ; and the negation of the power to sell privately can only be made out (if at all) by argument, which may, and [619]*619no doubt does, strike tbe minds of different lawyers with different results. We do not affirm, that a negation of power is the less effective, because it is derived argumentatively ; and it is not necessary to do so, for it was never decided, even under the old law, that a private sale of personal property, made in pursuance of an order directing a sale in such manner, was void.
We introduce this contrast of the manner in which the negation of the power of private sale was derived under the old law, and the manner in which it is supposed to be derived under the present law, because, under the latter state of the law, the argument is at least more striking; and for the additional reason, that the decision in Lay v. Lawson (p.390) expressly bases the decisions,holding private sales void, on the positive assertion that it is unlawful to make them; and the argument proceeds upon the concession of the propriety of a different ruling, in the absence of that assertion. The case we have before us is this. An administrator in his petition prays an order for a private sale, thus imposing upon the court the inevitable duty of deciding the question of private or public sale; the petition was received ; the court thus acquired jurisdiction to decide the question ; the question is one about which lawyers and judges may differ; he decides the question, as we must infer, according to the dictates of his judgment, enlightened by all attainable information. It would be truly a destructive doctrine, that his decision upon a question of such a character, falling within the scope of his authority to adjudicate, was absolutely void. It is admitted, that, if the jurisdiction of the case depended upon the publicity of the sale ordered, the law would be different; for an erroneous decision that a fact gives jurisdiction is not enough. But here the jurisdiction had already resulted from the reception of the petition, containing the requisite allegations. From the conclusion that the order directing a private sale was not void, it is a corollary, that the sale made in obedience to it was likewise not void.
4. It is argued, that the administrator had a secret interest in the purchase of the cotton. If so, it is a ground for [620]*620setting aside the sale, in a direct application for that purpose, but not for treating it as void for every purpose.
5. For the purchase-money of two hundred and fifty-two bales of cotton, a note with two sureties was taken, payable to the guardian of the decedent’s children. This was done with the approbation of the widow, who was the guardian of the other distributees, and who wished to ayoid the trouble of loaning the money; and such note was accepted as cash. We can perceive no injury or loss resulting from this act, nor can we perceive any very censurable irregularity in it. Certainly, it does not render the sale absolutely void.—Lay v. Lawson, supra.
6. We are of the opinion that tbe cotton was sold for its value. No charge, therefore, can be predicated of the price at which the cotton was sold. It is contended, however, that it would have been better for the estate, had no sale been made ; that the interest of the estate was not consulted in obtaining the order for the sale of the cotton; and that therefore the administrator is chargeable. If the cotton could have been preserved until the war closed, and then saved and sold, the estate would certainly have been benefited. This may be safely pronounced in the light of events after their occurrence. But the, question of the expediency of the sale was determinable on the 27th November, 1862, when the sale was ordered, in the light of the manifestations of that time. Who can affirm that a judge, or a trustee, guided by the manifestations of the times, during the period from November, 1862, to February, 1863, unwisely concluded that a sale comported with the true interests of the estate ? Who can affirm that, amidst the disorder and convulsions which subsequently ensued, the cotton would not have been lost, if it had been retained in specie ? Who can affirm that a judge and an administrator, in November, 1862, were blind to the teachings of the times, which guided and controlled prudent men in the management of their own affairs, when they failed to solve the existing problem of war and polities, and, looking down the vista of time, through the results of battles as yet not fought, and through complications of diplomacy and statesmanship as yet not developed, failed to perceive with the [621]*621ken of a prophet that the existing government over them, and its currency, were destined to overthrow ? If an administrator is charged for a failure in these particulars, an exaction is visited upon him, not merely of uberrima jides, but of a sagacity more than human.
The ascertainment of the policy of the petition for the sale of the cotton, and the making of it, constitute a step in the line of the administrator’s duty. It was not a departure from the law-appointed line of duty. An administrator may act within the line of his duty, and yet, by bad faith, or the want of care and diligence, render himself liable.—Clough v. Bond, 3 M. & C. 491. But, for reasons which we have already given, we can not conclude that the administrator, in petitioning for the sale, has, in reference to the policy (supposed to be now demonstrated) of retaining the cotton, acted in bad faith, or without reasonable care and diligence. The onus of proving these imputations of bad fath or a want of care and diligence, when the administrator has acted within the line of his duty, is upon the adverse party.—Pearson v. Darrington, 32 Ala. 227, 247, § 9 ; Clough v. Bond, supra ; Gerald v. Bunkley, 17 Ala. 170.
The bad faith of the administrator, in seeking the authority to sell, is argued from the contrariety of policy adopted by him in the conduct of his.own affairs with that which he adopted for the estate. The proof upon this subject shows that, at the very time when the administrator was proceeding to sell the cotton of the estate, he was buying cotton for himself, and engaged in a partnership for the purchase and sale of cotton on speculation. The fact that he was willing himself to incur, with his own funds, the hazard of a cotton speculation, does not demonstrate the conviction of his mind that it was politic to retain the cotton of a decedent’s estate. It is not at all unreasonable, that he should entertain the conviction that his own interest would be promoted by embarking in such a speculation, and yet that the good of the estate required a sale of its cotton. His willingness to incur the hazards of such an operation does not prove that a wise and prudent administrator should have retained the cotton. In so far as the mere making of the sale, in obedience to the [622]*622valid order of the court, is concerned, lie can not be subjected to charge. The question of the consistency of the sale with the interest of the estate is by law referred to the judicial mind, the enlightenment of which by proof is required by the statute. If the court acted without proof, or decided incorrectly upon such question, (it not pertaining to the jurisdiction,)the administrator can not be charge-* able on account thereof. The weight of the eight bales of cotton at George Norris’ seems to have been fixed in the sale of it by the cotton-book of the decedent. If there is any ground to charge the administrator on account of his omission to weigh the cotton, it has not occurred to us.
7. The testimony shows, with reasonable certainty, that the five bales of cotton, a part of a lot of twelve bales sold by B. S. Bell to the intestate, which was left by the administrator’s agent in Eppes’ warehouse, belonged to the estate; and shows very clearly that, if they did not, the warehouseman was liable. It further appears that the administrator was notified of the facts, and apprised of the agent’s opinion that the cotton belonged to the estate. The administrator neither claimed, nor attempted to recover the cotton, or its value. There does not, however, appear, to have been intentional wrong on the part of the administrator. There was no complicity by him, so far as we can discover, in the conversion. He is not presented as a convertor, or as a willful tort-feasor. His wrong is mere negligence. If he had converted the property, he might have been charged by the probate judge with the highest value.—Hudson v. Helmes, 23 Ala. 585. Even if the administrator had sued for the conversion of the cotton, his recovery of the highest value would not have been a matter of course, but would have been a matter left to the jury. We think substantial justice is satisfied, and correct principles of law consulted, in charging the administrator,upon the circumstances before us, with the value of the cotton at. the time of its loss by negligence, with interest on that value.—Steele v. Knox, 10 Ala. 608 ; Hatchett v. Bozeman, at the present term.
8. The appellants contend, that the order of sale of a stock of goods, and the sale made in pursuance thereof, are void, and that the court below erred in not charging [623]*623the administrator on the hypothesis of the invalidity of the order and sale. If the order of sale is valid, it must be by virtue of the act of 5th; February, 1858.—Pamphlet Acts, p. 307; Revised Code, § 2074. It is too clear to be the subject of argument, that there is no other statute to the authority of which it can be referred. The language of the act of 1858, so far as it is necessary to examine it, is as follows : “ Whenever any person, engaged in mercantile business in this State, shall die, leaving a stock of goods, wares, or merchandise, and leaving no surviving partner in said business, it shall and may be lawful for the executor, or administrator of the decedent, to sell such stock of goods, wares, or merchandise, either at public or private sale, and either at wholesale or retail, upon first obtaining an order for such sale, in the manner hereinafter provided, from the probate court which granted his letters testamentary or of administration. To obtain such order of sale, the executor or administrator, applying for such order, must file in said probate court an application in writing, setting forth with reasonable certainty the kind,quantity, and estimated value of said goods, wares, or merchandise, and any facts or circumstances which may render it necessary or expedient; which application must be verified by oath,” &c.
It is obvious that, under this statute, the only person authorized to make the application, is the executor or administrator of a particular sort of decedent, The executor or administrator “ of such decedent” may obtain the order of sale on application. The sort of decedent, whose administrator may obtain an order of sale, is one who was “engaged in mercantile business,” and died leaving a stock of goods, wares, and merchandise, and leaving no surviving partner. Neither the petition, nor the recitals of the court, in this case, show that the administrator was the administrator of such a decedent. We understand the decisions on this subject to be, that the jurisdiction of the court depends upon the proper representation by the proper person. The sale of the stock of goods was void, and the administrator must be charged with the value thereof, as if he had wrongfully converted the same to his own use.
9. Personal property of the estate was sold, and debts [624]*624collected, and Confederate money taken in payment. This court has held in a series of decisions, commencing with Watson v. Stone, (40 Ala. 451,) that under the act of 9th November, 1861, (p. 53,) the administrator stands justified in taking Confederate money. We abide by that decision. The administration in this case commenced after the passage of the act. The administrator was properly exempted from the payment of $19,049 34 in Confederate money on hand.
10. It was right to allow the administrator the reasonable counsel fees paid out for services in resisting an attempt to impose incorrect charges upon him, The administrator should be allowed reasonable fees paid counsel for aid to him officially, except in the maintenance of incorrect positions taken by him in contests with the distributees.—Smith v. Kennard, 38 Ala. 695 ; Pickens v. Pickens, 35 Ala. 442.
11. We do not think the administrator has been guilty of such willful default, or gross negligence, resulting in loss to the estate, as will deprive him of his commissions.
12. Upon another trial, the probate court should charge the administrator, in every case, in which the estate has been injured, or a debt has been lost, by his failure to sue upon the same within a reasonable time.—Bondurant v. Thompson, 15 Ala. 202; Dean v. Rathbone, 15 Ala. 328.
13. It seems from the evidence that the intestate had stock in the Livingston Insurance Company. A partnership, of which the intestate was a member, also had stock in the same company. Parker, the administrator, and a partnership of which he was a member, had stock in the same company. A resolution was adopted for the dissolution of the company, and a distribution of the assets among the stockholders. Two bills of exchange were delivered to the administrator, by the secretary of the company. If it appeared that these bills of exchange were delivered to him in satisfaction of the intestate’s interest in the assets, the administrator should have been charged with the same. But such does not appear to have been the case, but the [625]*625contrary is inferable from the evidence. If there has been any loss to the estate, in consequence of the negligence of the administrator in prosecuting the claim of his intestate to a share of the assets, he should be charged with the amount of such loss. We do not perceive from the record that any loss has supervened from his negligence, and we do not now see any ground justifying a charge against him in reference to this matter.
14. The probate court erred in allowing voucher No. 54 as a credit. The intestate had a note upon one Kornegay, given for land. The debtor handed four hundred dollars to one Alexander, who was a clerk in the intestate’s store. The clerk had no authority to receive the money. The reception of the money was entirely outside of the scope of his agency. It does not appear that the money was ever received by the payee. No credit was entered upon the note. The administrator collected the entire note, and afterwards returned the four hundred dollars, with interest. Upon the proof in the record, which we are informed is all which was adduced, the administrator erred in the payment, and the credit should have been denied him.
There was no error in allowing voucher No. 21, being a credit of $20 paid D. L. Saunders.
Reversed and remanded.