Mr. Justice Shope
delivered the opinion of the Court:
The executor of the last will of Joel Corrington, deceased, on May 23, 1883, presented to the county court of Morgan county his report as executor, in which, among other items, he charged himself with $2389.20 received from J. B. Corrington for 79^0- acres of land, and $5860.80 received from William Corrington for 195T3^- acres of land, sold by said executor to said parties, respectively. To this report exceptions were filed, none of which are before us by this appeal, except the fourth, which was an exception to the said items for the sale of said land, because the sales, as reported, were for a sum greatly less than the actual cash value of said lands, and less than the executor might reasonably have realized therefrom. The county court sustained this and other exceptions, and upon appeal to the circuit court said fourth exception was again sustained, and the executor ordered by the court to charge himself with the additional sum of $2750, being the amount found by that court to have been charged less than the executor should have realized from the sale of said land. Upon the last appeal the-finding and order of the circuit court were affirmed by the Appellate Court, and the executor prosecutes this further appeal.
The jurisdiction of the county court to require the executor to account in respect of this item is questioned. The contention is, that where an executor is empowered by the terms of the will to sell real estate, the court may require him to-execute the will in that respect; but when a sale is made and reported, the authority of the probate court is at an end, and resort must be had to a court of chancery, by the party injured, to correct an abuse of the trust, or for relief.
The courts of probate, in the settlement of estates and the-adjustment of the accounts of executors, administrators and guardians, exercise equitable jurisdiction, so far as may be necessary to adjust the same. Dixon v. Buell, 21 Ill. 203; Hurd v. Slaten, 43 id. 348; Wadsworth v. Connell, 104 id. 369 Millard v. Harris, Exr. 119 id. 185.
The land mentioned as sold, in the report of the executor, was, by the will of Joel Corrington, deceased, duly admitted to probate, devised to be sold by said executor, and the proceeds thereof divided equally among the testator’s six children, named in the will. The intent of the testator to devise the money arising from the sale of said land, is clearly expressed. There was here, then, a devise of money, and not of land. It was said in Fletcher v. Ashburner, 1 Bro. C. C. 497, “that nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.” (Williams on Executors, 414, et seq., Wheldale v. Parkridge, 5 Ves. 396; 2 Story’s Eq. 212-214.) Where, as in this case, a will requires real estate to be converted into money, and there is no election by the devisee to take the real estate directed to be converted, it is to be considered as converted from the time of the testator’s death. Wurt’s Exrs. v. Page, 4 C. E. Green, 365; Dodge v. Pond, 23 N. Y. 69.
The principle that a testator may thus impress upon real estate the character of personalty, and that whoever takes the property under the will takes it in the character thus impressed upon it, has been repeatedly held by this court. (Baker v. Coppenbarger, 15 Ill. 103; Jennings v. Smith, 29 id. 116; Rankin v. Rankin, 36 id. 293.) In equity, at least, this devise was of a fund distributable by the executor to the devisees named in the will, and, • as such, was in his hands by virtue of his office, and which he must account for under the direction of the probate court. By the will the executor was clothed with discretion as to the time and manner of making" sale of these lands, but he must exercise such discretion with fidelity to the interests of the beneficiaries, and in a reasonable and prudent manner. Having accepted the trust, he was bound to execute it with integrity, and while he can not be held liable for mistake in matters of judgment or opinion, where ordinarily prudent business men might be alike mistaken as to what was for the best interests of the estate, it was his manifest duty to make a fair and honest sale, for the best price reasonably obtainable. He was required to act in good faith, and with that degree of reasonable diligence ordinarily employed in like business affairs by men of common prudence, and if, from his failure to do so, injury and loss occurred to the distributees under the will, he must make good the loss so occasioned. Acts of negligence in respect of the control or disposition of the estate, careless administration of it, or a willful disposition of the assets of the estate, whereby the rights of creditors or legatees, or parties entitled in distribution, are defeated, amount to a devastavit. While no person is required by law to accept the trust of the execution of a will, yet if one does accept, he must perform it, using due and reasonable care and diligence to prevent loss to the estate. (Whitney et al. v. Peddicord, 63 Ill. 249; Williams on Executors, 1804-1816; Lomax on Executors, chap. 4, sec. 3.) If, then, the executor, either through bad faith or by failure to exercise reasonable diligence, diminished the funds in his hands for distribution under the will, he should be required to account for it, and the probate court is clothed with ample jurisdiction and power to compel a just and true accounting, and to require him to charge himself with the deficit.
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Mr. Justice Shope
delivered the opinion of the Court:
The executor of the last will of Joel Corrington, deceased, on May 23, 1883, presented to the county court of Morgan county his report as executor, in which, among other items, he charged himself with $2389.20 received from J. B. Corrington for 79^0- acres of land, and $5860.80 received from William Corrington for 195T3^- acres of land, sold by said executor to said parties, respectively. To this report exceptions were filed, none of which are before us by this appeal, except the fourth, which was an exception to the said items for the sale of said land, because the sales, as reported, were for a sum greatly less than the actual cash value of said lands, and less than the executor might reasonably have realized therefrom. The county court sustained this and other exceptions, and upon appeal to the circuit court said fourth exception was again sustained, and the executor ordered by the court to charge himself with the additional sum of $2750, being the amount found by that court to have been charged less than the executor should have realized from the sale of said land. Upon the last appeal the-finding and order of the circuit court were affirmed by the Appellate Court, and the executor prosecutes this further appeal.
The jurisdiction of the county court to require the executor to account in respect of this item is questioned. The contention is, that where an executor is empowered by the terms of the will to sell real estate, the court may require him to-execute the will in that respect; but when a sale is made and reported, the authority of the probate court is at an end, and resort must be had to a court of chancery, by the party injured, to correct an abuse of the trust, or for relief.
The courts of probate, in the settlement of estates and the-adjustment of the accounts of executors, administrators and guardians, exercise equitable jurisdiction, so far as may be necessary to adjust the same. Dixon v. Buell, 21 Ill. 203; Hurd v. Slaten, 43 id. 348; Wadsworth v. Connell, 104 id. 369 Millard v. Harris, Exr. 119 id. 185.
The land mentioned as sold, in the report of the executor, was, by the will of Joel Corrington, deceased, duly admitted to probate, devised to be sold by said executor, and the proceeds thereof divided equally among the testator’s six children, named in the will. The intent of the testator to devise the money arising from the sale of said land, is clearly expressed. There was here, then, a devise of money, and not of land. It was said in Fletcher v. Ashburner, 1 Bro. C. C. 497, “that nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.” (Williams on Executors, 414, et seq., Wheldale v. Parkridge, 5 Ves. 396; 2 Story’s Eq. 212-214.) Where, as in this case, a will requires real estate to be converted into money, and there is no election by the devisee to take the real estate directed to be converted, it is to be considered as converted from the time of the testator’s death. Wurt’s Exrs. v. Page, 4 C. E. Green, 365; Dodge v. Pond, 23 N. Y. 69.
The principle that a testator may thus impress upon real estate the character of personalty, and that whoever takes the property under the will takes it in the character thus impressed upon it, has been repeatedly held by this court. (Baker v. Coppenbarger, 15 Ill. 103; Jennings v. Smith, 29 id. 116; Rankin v. Rankin, 36 id. 293.) In equity, at least, this devise was of a fund distributable by the executor to the devisees named in the will, and, • as such, was in his hands by virtue of his office, and which he must account for under the direction of the probate court. By the will the executor was clothed with discretion as to the time and manner of making" sale of these lands, but he must exercise such discretion with fidelity to the interests of the beneficiaries, and in a reasonable and prudent manner. Having accepted the trust, he was bound to execute it with integrity, and while he can not be held liable for mistake in matters of judgment or opinion, where ordinarily prudent business men might be alike mistaken as to what was for the best interests of the estate, it was his manifest duty to make a fair and honest sale, for the best price reasonably obtainable. He was required to act in good faith, and with that degree of reasonable diligence ordinarily employed in like business affairs by men of common prudence, and if, from his failure to do so, injury and loss occurred to the distributees under the will, he must make good the loss so occasioned. Acts of negligence in respect of the control or disposition of the estate, careless administration of it, or a willful disposition of the assets of the estate, whereby the rights of creditors or legatees, or parties entitled in distribution, are defeated, amount to a devastavit. While no person is required by law to accept the trust of the execution of a will, yet if one does accept, he must perform it, using due and reasonable care and diligence to prevent loss to the estate. (Whitney et al. v. Peddicord, 63 Ill. 249; Williams on Executors, 1804-1816; Lomax on Executors, chap. 4, sec. 3.) If, then, the executor, either through bad faith or by failure to exercise reasonable diligence, diminished the funds in his hands for distribution under the will, he should be required to account for it, and the probate court is clothed with ample jurisdiction and power to compel a just and true accounting, and to require him to charge himself with the deficit.
It is also contended that the evidence does not warrant the finding. The fund coming to the hands of the executor was, in respect to the matter being considered, to be measured by the amount for which the lands might have been sold by the exercise of reasonable diligence and prudence by the executor. He is shown to have refused an offer of $33 per acre for the land, vihich he shortly after sold to his sons for $30 an acre. The excuse given for not accepting the offer made was, that it was in part on time, and he preferred to sell for cash. If this was so, it is apparent that he sold to his sons wholly on time, and when cited by the court to account, advanced the money from his own pocket to make the payment for the land at $30 per acre. It appears that on various occasions, prior to the sale to his sons, he was applied to by persons, some of whom wished to purchase, for the price at which the land could be purchased. To some of these persons he stated the lowest price at $45, to others, $50 an acre, and refused to take $40 an acre when applied to by the witness Harrison Robinson, in the fall of 1881 or spring of 1882. It appears from the testimony of a number of witnesses, whose means of knowledge seems ample, that the lands were worth not less than $40 an acre, and could have been sold for that price, while some of the witnesses put its value as high as $45 and $50. The executor, however, at private sale, without advertising the land, or otherwise, so far as appears, attempting to attract purchasers, sold the two tracts mentioned, in the spring of 1882, to his sons, at $30 an acre. It is true, the evidence is conflicting as to the value of the land; but as already said, the probate, circuit and Appellate courts have found that the preponderance of the evidence supports the contention that $40 per acre could have been realized by the executor with the exercise of reasonable diligence and a proper regard for his duty in the execution of the trust imposed on him by the will, and we are unable to say there is error in this respect.
There are other minor objections urged, one of which, only, will be noticed. The court below taxed the costs of this investigation against the executor, personally, and this is assigned as error. The costs were in the discretion of the court, and we are not prepared to say the discretion was abused. If the willful misconduct of the executor, or his gross negligence in conducting his trust, rendered litigation necessary for the preservation of the rights of the distributees, it is manifestly just that he should bear the expense, rather than it should fall upon them.
We find no error in this record authorizing a reversal, and the judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.