RodMAN, J.
After some discussion, it was agreed by counsel that there Was no material difference between the facts as found by the referee, and by the Judge on review. It is therefore unnecessary to consider whether the Judge had the right to review the finding of facts by the referee.
The case has been complicated by the agreement of the parties, by Which several actions to which different defences are made, and rules somewhat different may apply, are united in one record.
We
will consider the exceptions to the report as to the assets in the hands of the defendant, A. A. Alexander, as administrator of Mon tieth, and the parties will bo able, when they move for judgment in their respective cases, to apply so much of this opinion as relates to the particular case of eacln If, on the motions for judgment, new questions shall occur not presented to us on these appeals, they must be decided in the Court below, to which the case will be remanded for further proceedings.
In order that our observations on the several exceptions may be intelligible, it is necessary to describe as briefly as possible,
the several actions against the defendant, A. A. Alexander, as administrator of Montieth, in which the account before us was taken. There are four suits :
I.
F. M. Parles and others, plaintiffs,
v.
A. A. Alexander, as administrator of Monteith and others, defendants.
Brought on bond given in January, 1861, by B.
W.
Alexander as guardian of certain minors, to ■which Monteith was surety. The indebtedness of the guardian to his wards has been determined in an action against the administrator of the guardian at $16,434.49.
II.
Parles and wife and others, plaintiffs,
v.
A. A. Alexander and others, defendants.
Brought on bond given by A. A. Alexander, as administrator of Monteith; the breach alleged, being the non-payment of a note for $1,272.79. given by Mon-teith, to —-*.
III.
White, guardian of minor children of Johnson, plaintiff, v. A. A. Alexander, administrator of Monteith,
on note of Monteith for $480, (subject to a credit) given to Johnson.
IY.
On relation of McKay and Whitly, guardians of Harriet McKay, plaintiffs,
v.
A. A. Alexander, as administrator of Monteith.
This action is brought on a guardian bond given by B.
W.
Alexander, to which Monteith was a surety.
I.
Should the administrator be charged xoith the value of the slaves of his intestate?
The defendant, A. A. Alexander, administered on the estate of Monteith in October, 1861. The. estate was large, consisting of eleveu plantations, sixteen slaves, twenty-five shares of railroad stock, valued at $1,440, twenty thousand pounds of leaf tobacco, eleven mules, and other articles of personal property. The wife of the administrator was the only heir and next of kin of the intestate. The administrator took possession of all the property and used it as his own. He employed the slaves in cultivating the lands until their emancipation. He sold a part or the whole of the unnamed personal property, and paid off a large amount of debts of the intestate, some of which were debts by simple contract;
these payments were made before 1863, and before notice of debts No. 1 and No. 4, above mentioned, but with notice of debts No. 2 and No. 3. B. W. Alexander died in 1865. He was solvent in 1861, and so continued until after the war, when lie became insolvent. It does not appear that A. A. Alexander ever advertised for the creditors of Monteith to present their claims.
These are the main circumstances affecting his liability for the value of the slaves. His
Iona fides
in the administration of the estate is not questioned, and indeed it could not well be, as his wife was entitled to all of it that could be saved after the payment of the debts. Ilis interest in a prudent management of it lay on the same side with his duty as administrator, and every reasonable inference in his favor must be drawn from this union. The debts which he had notice of were small, compared with the estate. He might reasonably have expected to pay them from the income of the estate, without making the sacrifice which would have resulted from a sale of the negroes at any time after the close of 1861; for we know as matter of history, that after that time the price of slaves, at least in most parts of the country, depreciated even more rapidly than Confederate money did. Moreover, a sale could only have been made for Confederate money, which the only two unpaid creditors of whose debts he had notice refused to receive. Under these circumstances, we are of opinion that he is not liable for the value of the slaves. As the thing turned out, it might have been better to have sold them even for Confederate money, provided that the money had been invested in gold, or land, or other property that could have been saved. But this is evidently a false mode of íeasoning. It expects a prescript of distant and uncertain events. No greater degree of foresight and prudence can be required of an administrator than was used by the slave owners
of
the State in general; yet probably not one in a thousand of these sold his slaves during the war.
II. The administrator is charged with the profits of the
slaves until their emancipation, and as there is no exception, either to this charge or to the manner of ascertaining the amount of it, wo need say nothing on that subject.
111.
The imiles.
Three of these it seems were taken by the Confederate army. It was admitted that one of them was paid for in Confederate money, which was either kept on hand or invested in Confederate bonds, And in either way, lost. For •the same reasons which have governed ns with respect to the slaves, we hold that the administrator,was not in default in keeping these mules at work on the farms. He is liable for the value of the eight, of whom no account is given. But he is not liable for the three taken from him by irresistible force.
IY.
The twenty thousands founds of tobacco.
It is agreed that by manufacturing this, using his individual tobacco for wrappers, the administrator converted it; and also upon the doctrine of confusion of goods, that his individual tobacco so used, become his property as administrator, and liable to the creditors if his intestate. No doubt in the case of a trespasser, such use of the tobacco would have been a conversion. But an administrator who finds a raw commodity on hand, may lawfully put it into the condition in which it is usual to sell it, or in which, under the circumstances, it can be best sold. Thus he may gin the seed cotton, shell the corn, or thrash the wheat, &c. The doctrine of confusion of goods does not apply. There was here no fraudulent intent, and no injury to the goods of the intestate, which although they could not be separated in fact, yet were easily separable in value.
W are of opinion, also, that on account of the perishable nature of tobacco, the administrator was not required to keep it in specie, but was justified in selling it for Confederate money, which was then the only currency^.
Y.
Free access — add to your briefcase to read the full text and ask questions with AI
RodMAN, J.
After some discussion, it was agreed by counsel that there Was no material difference between the facts as found by the referee, and by the Judge on review. It is therefore unnecessary to consider whether the Judge had the right to review the finding of facts by the referee.
The case has been complicated by the agreement of the parties, by Which several actions to which different defences are made, and rules somewhat different may apply, are united in one record.
We
will consider the exceptions to the report as to the assets in the hands of the defendant, A. A. Alexander, as administrator of Mon tieth, and the parties will bo able, when they move for judgment in their respective cases, to apply so much of this opinion as relates to the particular case of eacln If, on the motions for judgment, new questions shall occur not presented to us on these appeals, they must be decided in the Court below, to which the case will be remanded for further proceedings.
In order that our observations on the several exceptions may be intelligible, it is necessary to describe as briefly as possible,
the several actions against the defendant, A. A. Alexander, as administrator of Montieth, in which the account before us was taken. There are four suits :
I.
F. M. Parles and others, plaintiffs,
v.
A. A. Alexander, as administrator of Monteith and others, defendants.
Brought on bond given in January, 1861, by B.
W.
Alexander as guardian of certain minors, to ■which Monteith was surety. The indebtedness of the guardian to his wards has been determined in an action against the administrator of the guardian at $16,434.49.
II.
Parles and wife and others, plaintiffs,
v.
A. A. Alexander and others, defendants.
Brought on bond given by A. A. Alexander, as administrator of Monteith; the breach alleged, being the non-payment of a note for $1,272.79. given by Mon-teith, to —-*.
III.
White, guardian of minor children of Johnson, plaintiff, v. A. A. Alexander, administrator of Monteith,
on note of Monteith for $480, (subject to a credit) given to Johnson.
IY.
On relation of McKay and Whitly, guardians of Harriet McKay, plaintiffs,
v.
A. A. Alexander, as administrator of Monteith.
This action is brought on a guardian bond given by B.
W.
Alexander, to which Monteith was a surety.
I.
Should the administrator be charged xoith the value of the slaves of his intestate?
The defendant, A. A. Alexander, administered on the estate of Monteith in October, 1861. The. estate was large, consisting of eleveu plantations, sixteen slaves, twenty-five shares of railroad stock, valued at $1,440, twenty thousand pounds of leaf tobacco, eleven mules, and other articles of personal property. The wife of the administrator was the only heir and next of kin of the intestate. The administrator took possession of all the property and used it as his own. He employed the slaves in cultivating the lands until their emancipation. He sold a part or the whole of the unnamed personal property, and paid off a large amount of debts of the intestate, some of which were debts by simple contract;
these payments were made before 1863, and before notice of debts No. 1 and No. 4, above mentioned, but with notice of debts No. 2 and No. 3. B. W. Alexander died in 1865. He was solvent in 1861, and so continued until after the war, when lie became insolvent. It does not appear that A. A. Alexander ever advertised for the creditors of Monteith to present their claims.
These are the main circumstances affecting his liability for the value of the slaves. His
Iona fides
in the administration of the estate is not questioned, and indeed it could not well be, as his wife was entitled to all of it that could be saved after the payment of the debts. Ilis interest in a prudent management of it lay on the same side with his duty as administrator, and every reasonable inference in his favor must be drawn from this union. The debts which he had notice of were small, compared with the estate. He might reasonably have expected to pay them from the income of the estate, without making the sacrifice which would have resulted from a sale of the negroes at any time after the close of 1861; for we know as matter of history, that after that time the price of slaves, at least in most parts of the country, depreciated even more rapidly than Confederate money did. Moreover, a sale could only have been made for Confederate money, which the only two unpaid creditors of whose debts he had notice refused to receive. Under these circumstances, we are of opinion that he is not liable for the value of the slaves. As the thing turned out, it might have been better to have sold them even for Confederate money, provided that the money had been invested in gold, or land, or other property that could have been saved. But this is evidently a false mode of íeasoning. It expects a prescript of distant and uncertain events. No greater degree of foresight and prudence can be required of an administrator than was used by the slave owners
of
the State in general; yet probably not one in a thousand of these sold his slaves during the war.
II. The administrator is charged with the profits of the
slaves until their emancipation, and as there is no exception, either to this charge or to the manner of ascertaining the amount of it, wo need say nothing on that subject.
111.
The imiles.
Three of these it seems were taken by the Confederate army. It was admitted that one of them was paid for in Confederate money, which was either kept on hand or invested in Confederate bonds, And in either way, lost. For •the same reasons which have governed ns with respect to the slaves, we hold that the administrator,was not in default in keeping these mules at work on the farms. He is liable for the value of the eight, of whom no account is given. But he is not liable for the three taken from him by irresistible force.
IY.
The twenty thousands founds of tobacco.
It is agreed that by manufacturing this, using his individual tobacco for wrappers, the administrator converted it; and also upon the doctrine of confusion of goods, that his individual tobacco so used, become his property as administrator, and liable to the creditors if his intestate. No doubt in the case of a trespasser, such use of the tobacco would have been a conversion. But an administrator who finds a raw commodity on hand, may lawfully put it into the condition in which it is usual to sell it, or in which, under the circumstances, it can be best sold. Thus he may gin the seed cotton, shell the corn, or thrash the wheat, &c. The doctrine of confusion of goods does not apply. There was here no fraudulent intent, and no injury to the goods of the intestate, which although they could not be separated in fact, yet were easily separable in value.
W are of opinion, also, that on account of the perishable nature of tobacco, the administrator was not required to keep it in specie, but was justified in selling it for Confederate money, which was then the only currency^.
Y.
Confederate m.oney.
The only sources indicated in the report of the referee, or by the Judge, from which the sum found on hand in this money was received, are the impressed mules, the tobacco, and the sale of unnamed articles soon after administering. If more was received it would seem to have
been paid out on debts. As the receipt was justifiable on these receivers, and no use could be made of the money in paying debts, by reason of the refusal of two of the creditors to receive it, and the contingent, character of the two other debts which, in tact, were not known to the administrator to exist, and as the money was not converted by him to his own use, he ought not to be charged with it.
VI.
As to the shares of railroad stock.
As the administrator had these assigned to himself personally for his own benefit, and not for that of the estate, he converted them, and is liable for their value at the time of the conversion in the state in which they were, that is, to say subject to the payment of the unpaid balance of the subscription.
VII.
Rejected vouchers.
The administrator offered to the referee evidence of the payment by him of a considerable number and amount of debts owing by his intestate, which the referee rejected, on the ground that they were simple contract debts, and were paid after notice of debts of higher dignity. The amount of the vouchers so rejected is not anywhere stated, nor the dates of payment. It is agreed, however, that the payments Were made before the close of 1863, and that the specialty debts of which the administrator had notice, were those numbered two and three above, being
on the
notes of Monteith for Si,272.79, and for $180.00. It does not appear whether or not the payments relied on were made in Confederate money, although from their dates, we must assume that they were. It is admitted that the creditors in these debts refused to receive Confederate money in payment. It does not appear, however, when it was tendered to them, or even whether it was before or after the payment of the simple contract debts. Perhaps it is not material. The act of 1869-’70, chap. 150, enacts in substance, that when an administrator has paid debts of lower, before those of higher dignity, the estate being at the time solvent; or when any creditor has refused to accept payment in Confederate currency, which was afterwards used in payment of the debts of the es
tate, or became worthless without fault in the administrator; such payments shall be allowed to the administrator in all suits, &c*., without regard to the dignity of the debts thus paid, as compared with that sued for. The learned counsel for the defendant did not cite this act, perhaps because it merely expressed a rule, which was a principle of equity before its enactment. However that may be, we consider that the act applies. The administrator had Confederate money legitimately received, and the creditors in question refused to receive it, as they had a right todo. How were those creditors ignored, by the administrator applying it to pay other debts inferior to theirs? The estate was relieved to the extent of the payment, and the security of the specialty creditors not diminished. Under ordinary circumstances^ the payment would have been a
devastavit
But the circumstances during the war were ex-tional, and justice can only be done by applying to them the broad principles of equity.
These creditors, by refusing to feceive payment in the only existing currency, took their chances that the estate w7ould withstand. the accidents of the war. The administrator, although he was bound to fidelity and diligence, did not become their insurer, and we think he is entitled to credit for the payments in question, as against these creditors.
The question as to whether he is entitled to credit against the creditors Nos. 1 and 2, (that is as to the creditors upon the guardian bonds of B. W. Alexander to which Montieth was a surety,) stand upon a different footing. It is said that the administrator had no notice of these debts until 1866. It is uncertain whether this means that he did not know that Montieth was a surety for B.
W.
Alexander, or that he did not know that a breach of the bond had-been committed. As he did not advertise for creditors, we are bound to assume that he had notice of the liability, and perhaps also we would be bound to assume that he had notice of the breach of the bond, if one had been committed. It does not appear, however, when Al
exander committed a
devastavit
as guardian. He was solvent until after 1865, and his indebtedness was not discovered until 1866, when a demand was made, and he failed to account and pay. It might be a difficult question, supposing a
devastavit
or misappropriation of the Avard’s funds to have taken, place before 1863, whether it would be a breach of the bond, within the reason of the question we are considering, until his failure to pay, after a lawful demand. But we are under no necessity to consider that, because there is no allegation of any breach before 1866. It is well settled, that if an intestate owe simple contract debts which are due, and be also indebted by a contingent security, such as a bond to save harmless, or other bond under which it depends upon a contingency whether any debt will ever arise, and no breach of the condition has taken place, the administrator may pay the simple contract debts. 2 Williams Executors, 920;
Delamoth
v. Lanier, 2 C. L. R., 413 ;
Collins
v.
Crouch,
13 Q. B , 542.
VIII.
Judgment quando.
It was agreed in the argument, that on one of the debts now sued on, the plaintiff had taken judgment quando, against the administrator. Probably that fact appears somewhere in the voluminous and unconnected record in this case. It was properly admitted by Mr. Bailey, that such a judgment amounts to an admission that the administrator has no assets at its date. The orders of reference are general, to take an account of the administration of the estate of Montieth, without confining the account to the assets received by the administrator since the date of the judgment
quando,
as it should regularly have been. If the order was entered in its present form by mistake and inadvertence, as the case is still ponding in the Court in which the order was made, (the appeal to this Court being essentially interlocutory,) it is within the power of that Court to amend it. We need say nothing more on this point.
In concluding this opinion, we feel bound to say that we have seldom seen a record worse made up. It is unnecessarily
voluminous, full of repetitions, the statements are vague, and want of precision both as to facts and dates. There are no marginal references, to aid us in examining it.
Per CüRIAm
The case is remanded to be proceeded in, &c. Each party will pay the costs of his appeal.