siduary legatees, and is not binding upon 487 *6. Reference is made in said supplemental bill to the pending suit of Corbin v. Lancaster, as exhibiting the grounds of objection to the sale of the Exchange hotel ground rent. This bill was answered by the executors Howison and Mills, who controverted and put in issue all the material allegations of the bill. Much evidence was taken upon the points of enquiry directed by this court by its decree of the 13th day of March 1869; voluminous reports and accounts were returned by the commissioner of the court; and on the 4th day of March 1872 the chancery court of the city of Richmond pronounced its decree, by which it declared, and so adjudged, ordered and decreed: First, "that the sale of the real estate in the bill mentioned, made by the two executors, Robert R. Howison and] Charles S. Mills, was valid, and that their deeds conveyed a good title to the purchasers thereof; and that the third executor after his qualification in effect ratified the same; nor was the consent of the beneficiaries under the will necessary to authorize said executors to sell said real estate." Second. That the executors were authorized under the will to invest the residuary estate given by the fourteenth clause thereof, and that the investments so made by them were legal and valid. Third. That the said executors were authorized by the will to collect the debts due from Messrs. Morriss, Bradford, Glazebrook, and the Midlothian mining company, and from all others who were debtors to their testator, and that their collection of said debts in Confederate money was valid, and fully discharged the debtors. Fourth. That the sale of the Exchange hotel stock was made in consequence 488 of the dissolution of the *company by the action of a majority of the stockholders, and that the executors were right in receiving the share of the proceeds of such sale belonging to the estate of their testator in Confederate money. Fifth. That the rent charge on the Exchange hotel property was, in substance, a mortgage, by which the sum of $26.666.60, with six per cent. interest, was secured, and being so, stands upon the same footing as the other debts due to the testator, and the executors were authorized to collect it, and the collection of the same in Confederate money was valid, and discharged the debtor; and that the deed of the executors, releasing the lien on said property. was a valid and legal discharge of the same, and that they are not liable for any loss that has subsequently occurred in consequence of such collection and release. Sixth. That investments made by said executors, in Confederate States bonds, were legal and valid, and that said executors are not liable for any loss sustained by reason of such investments. From this decree an appeal was allowed by one of the judges of this court. The first question we have to determine is as to the validity of the sale made by the executors, of what is known in the record as the Leigh street property. This sale is objected to, and its validity assailed upon two grounds-first, that three executors having been appointed by the testator to execute the trusts of his will, the sale and deed made and executed by two, in the absence of the third, was a void act, and conferred no title on the purchaser. Second, that if the two acting executors had the authority to sell and convey this valuable real estate in the absence of the third (who had not then qualified, and who did not unite in the deed). still they had no authority to 489 sell the same *for Confederate currency, and consequently both the acting executors and the purchasers are liable to the legatees for the full value of the said real estate in a sound currency. These propositions will now be considered in the order in which they are stated above. Nicholas Mills, the testator, died on the 13th September 1862. He left a will, which had been duly executed on the 17th day of October 1861. He appointed as his executors his son. Charles S. Mills, his grandson, Thomas Verney Robinson, and Robert R. Howison, an attorney of the city of Richmond, who had been for many years the counsel of the testator. On the 24th September 1862 the will was admitted to probate, and Charles S. Mills and Robert R. Howison, two of the executors named, qualified as such, and liberty was reserved to Thomas Verney Robinson, the other executor, to join in the probate if he thought fit. He qualified on the 15th December 1862. At the time the will was offered and admitted to probate, on the motion of Mills and Howison, Robinson was a soldier in the army of Northern Virginia. An effort was made to get a furlough for him, in order that he might be present when the will was offered for probate and qualified with the other two executors. This effort failed, and it was at least uncertain and the time indefinite when he could qualify as one of the executors. The testator, by the fourteenth clause of his will, made the following direction: "All the real estate which I may leave at my death, not otherwise specially disposed of, I desire my executors shall sell in such manner and on such terms as they may deem most advantageous." 490 On the 28th October 1862, the two executors who had qualified, Mills and Howison, made sale of the Leigh street property for the sum of $128.236.30, in Confederate money, and executed deeds to the purchasers. The third named executor, Robinson, was not present at this sale, and did not unite in the deed, he not having qualified as executor when the sale was made. It is earnestly insisted by the counsel for the appellants, that the deeds of the two executors conferred no title on the purchasers, but that in order to make a complete title in the purchasers, all the executors named in the will should unite in the sale and join in the conveyance. This was undoubtedly the rule of the common law. That rule was modified by the statute of 21st Henry VIII, chapter 4, which provided, that "where lands are willed to be sold by executors and part of them refuse to be executors, and to accept the administration of the will, all sales by the executors, that accept such administration, shall be as valid as if all the executors joined." 492 executor then attached only to the estate of his testator not then disposed of, and his securities on his official bond could be held only responsible for the assets, real and personal, which came into the hands of the executors after his qualification. *When he qualified as executor, the Leigh street property was no longer a part of his testator's estate. It had been sold by his coexecutors who had qualified before him, and his only responsibility was for the application of the proceeds of the sale. The law in express terms, vested all authority and power to sell the real estate directed to be sold by the will, in those who had qualified as executors. They had executed that power before Robinson qualified, and there was neither power nor responsibility attaching to him as to that sale. The statute of Henry the VIII, which was in force in Virginia at the time of the revolution, required a refusal to act by the person nominated. In 1785 the law was so changed Of course, it is not intended in this view by act of assembly as to authorize such to assert that one executor may, because as should "undertake the execution of the he happens to qualify first, in hot haste and will" to sell and convey. The statute was in fraud of the rights of his co-executors, re-enacted in 1792, with this additional pro- | and of those interested in the estate, provision: "But if none of the executors named ceed to sell his testator's real estate auin the will shall qualify, or after they have thorized to be sold. No such case is made qualified shall die before the sale and con- in the record. In this case an effort was made veyance of such lands, then, in these cases, to get the presence of the third executor. He the sale and conveyance thereof shall be was then in the army and it was altogether made by such person or persons to whom uncertain when he could return. Under the administration of the testator's estate, with circumstances the other two were justified in the will annexed, shall be granted." 1 Rev. acting without him. But in point of fact there Code 1819, p. 388, § 52. is nothing in the record to show that Robinson ever objected to the sale by his co-execu tors until after the close of the war. He saw the purchasers put in possession of the property without objection. He expressed himself gratified at the large price for which the property had been sold, and he received his part of the commissions of the sale, and stoutly contended for his part thereof against the other two executors. Not a word was said by him by way of objection to this sale, until after this suit was brought; but all his acts and conduct showed a full ratification of what had been done by his co-executors, The object of these amendments was plainly to extend the policy of the 491 statute of Henry the vIII, which *required a refusal of one of the executors to qualify before the others could act, and to confer the power to sell upon those who qualify. See Mosby's adm'r & als. v. Mosby's adm'r. Opinion of JUDGE MONCURE, 9 Gratt. 584, 598. The provisions of our Code, which constituted the statute law of this state, when the executors made the sale, the validity of which is impeached, is found in the first section of chapter 130, Code 1860, and section 1, chapter 131, and are as follows: "A person appointed by a will executor thereof, shall not have the powers of executor until he qualifies as such by taking an oath, and giving bond in the court in which the will or an authenticated copy thereof is admitted to record, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste." Ch. 130, § 1, Code 1860. "Real estate devised to be sold, shall, if no other person other than the executors be appointed for the purpose, be sold and conveyed by the executors who qualify and the survivors of them.” In this case the sale was made by the two executors who had qualified. Robinson did not qualify until after the sale was made and the deeds executed to the purchasers. When he qualified, he was invested with all the rights and powers of an executor in and upon the estate of Nicholas Mills. But at the time of his qualification, the real estate (the Leigh street property) had been sold by the executors who had qualified. Robinson's powers as * * * * and conclusively shows that if he had 493 been present he would have *united with his co-executors in making the sale and would have joined with them in a deed to the purchasers. But however this may be, I am of opinion that the executors who qualified had the authority under the will of the testator to make sale of the "Leigh street property." and to convey to the purchasers a valid title to the same; and that that title is in no way affected by the fact that one of the executors named in the will did not unite in said deeds, he not having then qualified as such executor; and that the title in the purchasers is as complete and perfect as if all the executors had united in said deeds. But the validity of this sale was impeached on another ground, as before stated. to wit: that if the two acting executors had the authority (in the absence of the third executor) to sell this valuable real estate. they had no authority to sell it for Confed crate money; that in this they exceeded their authority, and that therefore the sale was void, and the deeds conveyed no title. This objection makes it necessary to recur again to the will, which is the source of power, and to note carefully the circumstances under which the sale was made. The 14th clause of the will, before recited, is as follows: "All the real estate which I may leave at my death, not otherwise specially disposed of, I desire my executors shall sell in such manner and on such terms as they may deem most advantageous." ! chasers thereof," and that the said decree to this extent should be affirmed. We come now to consider the second branch of this important case, which presents questions of great interest and difficulty, to wit: How far are these executors liable for a breach of trust in collecting debts due their testator in a sound currency, well secured upon real estate in the year 1863 in Confederate money, then depreciated to at least five to one; and if liable, how far the debtors and purchasers of the real estate, pledged as security for these debts, are to be regarded as participators with the executors in such breach of trust, so as to make them liable with the executors? Among the assets of this large estate, which came into the hands of the executors, were certain debts of large amounts, amply secured upon valuable real estate. They are known in the record as the Exchange hotel rent charge, the Morris debt, the Midlothian coal mining company debt, and the Glazebrook debt, all of which were well secured upon real estate, of such value as to make them perfectly safe, and all of which were collected in Confederate money in 1863 by the executors, and release deeds executed by them of the real estate, which stood pledged for their payment. 496 As the Exchange hotel rent charge stands upon *somewhat different grounds from the other above-named debts, that will be first considered. On the first January 1839, Nicholas Mills and Sarah his wife "leased, demised, granted, and to farm let," unto Hugh W. Fry and others, for a hundred years, certain valuable real estate in the city of Richmond. formerly the site of the old Byrd warehouse, and now of the Exchange hotel, charging the same with an annual rent of $930, payable in equal annual instalments for one year, from January 1st, 1840, to January 1st, 1841; and thereafter for the ensuing ninety-nine years, with an annual rent of $1,600, payable likewise in equal quarterly portions. Here the largest power is conferred on the executors. They are to sell in such manner and on such terms as they may deem most advantageous. Whether it was most "advantageous" to the estate they represented, to sell in October. 1862, they were to be the sole judges. Whether they should sell then, 494 or at a later period, or *postpone the sale until after the close of the war, was a matter left by the will entirely to their discretion. Nor was this discretion at all limited by the fact that at the time of the sale, the only currency in cirqulation was Confederate money. The testator did not direct a sale for specie or its equivalent, but simply directs his executors to sell "in such manner and on such terms as to them may seem most advantageous." It is a noteworthy fact, that at the time the will was executed, (October, 1861) the war was raging and Confederate money was then coming into general circulation, and at the time of his death, (September, 1862.) from which latter date his will speaks, Confederate money constituted the principal if not the whole currency of the country. The testator himself had received, for the sale of propery and in the payment of debts due him, about $19,000 in this currency. Thus knowing as he did, that there was no other currency in circulation but Confederate money, he did not limit the power or discretion of his executors, but without limitation or qualification conferred on them the power to sell his real estate "in such manner and on such terms as they may deem most advantageous." At the time of this sale the depreciation of Confederate money was comparatively small, being In the contract of lease, it was stipulated about two and a half for one, and was gener- that the property should be conveyed to the ally received in payment of debts, as well as lessees absolutely in fee simple with genfor real estate sold. The Leigh street prop-eral warranty at any time after January erty was sold for $128,236.30. It was as- 1st, 1840, upon the following condition: "On sessed in 1859 at $28,850. It therefore sold receiving from the said parties of the secfor a price which, if converted into gold, ond part, their heirs or assigns, the sum of would have produced at least $50,000. The $25,000, current money of the United States, purchasers thus paid more than full value and all rents that shall have accrued on the for it, and the sale at this large price might premises hereby demised, to the time of such well have been considered by the executors, payment of the $25,000 aforesaid; and at any as it was by others, as “advantageous." But time after the expiration of five years, from whether "advantageous" or not, having the first day of January, in the year 1840, 495 full power to sell, neither the *execu- during the term hereby granted, to convey tors nor the purchasers in the ab- the premises hereby demised, with all houses, sence of fraud, can be held liable to the buildings and improvements thereon, and legatees for any loss incurred in conse- appurtenances thereto belonging, or in any quence of such sale. wise appertaining to the said parties of the second part, their heirs and assigns, in fee simple, with general warranty, on receiving from the said parties of the second part, their heirs or assigns, in current money of the United States, a sum which will be sufficient to produce in interest thereon at the rate of six per centum per annum, six I am therefore of opinion that there is no error in the decree of the chancellor, which declared "that the sale of the real estate, in the bill mentioned, made by the two executors. Robert R. Howison and Charles S. Mills, was valid, and that their deeds conveyed a good title to the purV R. 28 Gratt-11 161 teen hundred dollars, like money, in quarterly payments. 497 *There was thus secured upon this valuable property at the death of the testator an annual rent of $1,600, payable quarterly, in current money of the United States, with the privilege to the lessees to obtain from the lessors a fee simple title upon the payment of a sum sufficient to produce, in interest thereon at the rate of six per centum per annum, the sum of $1,600, like money, in quarterly payments. The sum required to produce this amount was $26,666.6623. grounds of excuse or justification offered by the executors or their able counsel. This court has in four successive decisions put the seal of its condemnation upon such conduct on the part of fiduciaries, and in cases of no such palpable recklessness and gross negligence as this discloses: and if there ever was a case where the rule stare decisis must prevail, it is the case before us. 499 of In Campbell's exors v. Campbell's ex'or, 22 Gratt. 649, 686, JUDGE MONCURE, Speaking for the whole court, said: "The debt to the estate on account of these notes and bonds was, therefore, most amply secured; *and it was a devastavit to call in that debt, or any part of it, for the purpose making an investment in Confederate bonds. The investment act contained an express proviso that nothing therein contained should authorize the fiduciary to change the character of an existing investment. * * * As to the sums of $1,200 received of Pullins, and $2,500 received of Stephenson by the executors in the summer of 1863, in Confederate notes, which their counsel insist were received in due exercise of their trust, we think, for reasons already assigned, that they had no right to receive the said sums for said purpose, and therefore did not receive them in due exercise of their trust." In Williams' adm'rs v. Skinker & wife, 25 Gratt. 507, it was said, "there may be cases in which an executor may be held justified in receiving Confederate money, greatly depreciated, for a debt payable in a sound currency, as where the necessities of the estate require it, where it could be used in payment of the debts of the testator, or where (there being no debts) legatees or the parties entitled to distribution consent to receive it, or where the security for the debt has become doubtful and the estate would be benefited by receiving even a depreciated currency." And it was held that the collection of an ante war debt, well secured on real estate (and not being necessary for the payment of debts), in Confederate money, in November 1862, without the consent of the legatees to whom it was secured and payable, was a devastavit, and, though no mala fides was attributed to the executor, he exceeded his powers as executor, in receiving Confederate money for a specie debt well secured, and, under the circumstances of that case, was held liable to the legatees. On the 30th April 1863 the two executors received this amount in Confederate money, and executed a deed releasing the rent and rent charge created by the deed of January 1st, 1839. At the time they received this large amount due in specie, Confederate money was depreciated to the extent of five and a half to one. Thus by this transaction, for a specie debt of $26,666.663, secured upon ample and unquestionable security, and paying in quarterly payment $1,600 per annum, these executors received what was worth a httle over $5,000. And, strange to say, it was thus collected, not to pay debts or legacies, but to be invested to produce a fund out of which annuities were to be paid under the will. This, at least, was the pretence. The will had directed the executors to invest in "productive stock, or in a safe loan on good real or personal security," any surplus funds remaining after payment of debts and legacies. But this sum was already invested; and what better investment or safer security could possibly have been made or desired? The bare ground had been assessed at upwards of $10,000, and the hotel built upon it had cost in good money $125,000. For a series of years it had rented for $10,000 per annum in gold. Thus the principal rent charge was secured on property worth at least $135,000; and the annual income of $1,600 had 498 a corresponding *income of $10,000 out of which to be punctually satisfied quarterly. It is difficult to conceive of a better investment or a safer one than this. To change such an investment, and to receive a specie debt, so well secured, in Confederate money, so greatly depreciated, cannot be excused or justified on any ground. And the same may be said of the Morris debt, the Bradford debt, the Glazebrook debt, and the Midlothian company debt (and others, if there be any, of like character); all 500 of which were amply secured upon real estate, and were collected by these executors in a currency depreciated at five or six to one; and this, too, at a time when they had on hand, from the sale of the Leigh street property and other sources collected by them, an enormous amount of Confederate money (after paying debts and legacies), and which they admit they could not loan out on either real or personal security, and were forced, for the want of better securities, to invest in Confederate bonds to the amount of $215,000. Such injudicious and reckless waste of the assets of this large estate cannot be justified or tolerated on any ground; and it is therefore needless to consider any of the *In Moss & wife & als. v. Moorman's adm'r & als., 24 Gratt. 97, JUDGE MONCURE said (and all the judges concurred): "A personal representative is not warranted in receiving a specie debt due to the decedent's estate in a greatly depreciated currency-depreciated to the extent to which it was depreciated when the money was received in this case (1863)-unless there be something in the condition of the debt, or in the state of the demands of the creditors or legatees of the estate, or otherwise, which makes it to the interests of the estate that the debt should be so received." In Hannah's adm'r v. Boyd & wife & als.. 25 Gratt. 692, JUDGE STAPLES, delivering the unanimous opinion of the court said: "The doctrine of this court as expressed in several cases, is that a fiduciary is not wararnted in receiving payment in a highly depreciated currency of a debt payable in gold or its equivalent, unless it can be made to appear (1) from the condition of the estate, or (2) the debtor, or (3) other circumstances, that the collection was expedient and proper. In the present case, nothing appears by the record, except the collection by the executor in Confederate currency in the year 1863 of a debt contracted long anterior to the commencement of the war." Upon these repeated and successive decisions of this court, we are bound to conclude that the executors in this case, in receiving Confederate money as late as 1863 for debts payable in gold or its equivalent, and well secured upon real estate, have committed a devastavit for which they are personally liable. and Jones' ex'ors v. Clarke, 25 Gratt. 246, 642. In these cases there was a dealing between the executor and third parties with the assets of the estate-under such circumstances as imputed fraud to the executor, and brought home to the party dealing with him, notice of the fraud. Here was a dealing not between the executor and third parties in the assets of the estate, but between debtor and creditor who stood at arms length toward each other-between the debtor who had a right to pay his debt and the executor who had the right to receive it. It is true the debtor could not compel the executor to receive a depreciated currency in payment of his specie debt, and the executor ought to refuse to receive it. But if the executor chooses to receive it, the debtor may pay it; for the latter cannot be presumed to know the condition of the estate or the exigencies, which may be of such a character as And now the question recurs are the debt- imperatively to require the executor to colors who paid these debts in a depreciated lect the debts even in a depreciated currencurrency, and the real estate pledged as se- cy. So that the mere payment of a well security for these debts, and which has been cured specie debt by a debtor to a fiduciary to released by the executors, still bound to whom it is due, and who is willing to receive make them good? This depends upon it, does not constitute the debtor a participator 501 the question *whether they have so in the breach of trust committed by such fiduparticipated with the executors in a ciary in receiving a depreciated currency breach of trust as to make them and the se-in payment of a specie debt. In such a case curity pledged, still liable for the debt. The principle upon which a party dealing with a fiduciary is held responsible is that he has co-operated in the fraud of the fiduciary. Hunter v. Lawrence's adm'r & al., 11 Gratt. 111. The fiduciary must commit a fraud and the third person must co-operate in that fraud in order to vitiate the transaction. In order to bind a party dealing with a fiduciary, there must be shown direct collusion between such party and the fiduciary to defraud the estate. Such collusion cannot be predicated upon the mere fact that a debtor pays his debt to one authorized to receive it in a depreciated currency, when the person to whom the debt is due is willing so to receive it. The cases above referred to show that there may be many cases in which the executor would be justified in receiving such currency in payment of an ante-war debt; as where the emergencies of the estate or the condition of the debt requires it, where it can be used in the payment of debts and legacies, or where the security for the debt is doubtful (in the opinion of the executor) and where the estate would be benefited by receiving even a depreciated currency. Of all these things the debtor cannot be presumed to have any knowledge. He is not in any way responsible for the right administration of the estate. It is for the executor and not the debtor, to judge of the exigencies of the estate which may require him to collect a debt in a depreciated currency. When the debtor pays his debt to one who had a right to demand it, and is authorized to receive it, and is willing to receive it in a depreciated currency, the debtor is forever absolved of his obligation, unless there can be shown fraud and 502 *collusion between the debtor and the executor. The case is altogether different from the case of Pinckard v. Woods, 8 Gratt. 140, and the cases of Cocke v. Minor, the debtor does not get possession of any of the assets of the estate. He is not, as in Pinckard and Woods, or Jones and Clarke (supra) a purchaser of a debt due the estate, and after the transaction, holds nothing belonging to the estate. He has simply extinguished a debt due the estate by payment of the debt to a party entitled to col lect it in such currency (and at the 503 time of payment the only *currency in circulation) as the creditor is willing to receive. In such a case, in order to hold the debtor liable, there must be shown such facts and circumstances as amount to fraud and collusion. In the case before us there is nothing to show fraud or collusion on the part of the debtors from whom the executors chose to receive in Confederate money specie debts due to their testator. And while we are bound to hold, upon the principles repeatedly declared by this court, that the executors in this case have committed a devastavit in collecting, as late as 1863, debts amply secured upon real estate, in Confederate money, depreciated to the extent of five to one, yet, for the reasons above stated, neither the debtors nor the real estate pledged for the payment of these debts can now be held liable to the legatees. Much stress has been laid in the arguments by the several of the learned counsel upon the decision of this court in the case of Myers v. Zetelle, 21 Gratt. 733; and it is earnestly insisted that the principles therein announced must govern this case and relieve the executors from all liability. In Williams' adm'rs v. Skinker & wife (supra) I had occasion to distinguish that case from the case of an executor who received Confederate money for a specie debt well secured upon ample real estate, where there were no debts to pay, and where the money was received and invested in Confederate bonds, without the consent of the |