1877. March Term. V. & als. Same V. & als. tending to show that it is inapplicable to this case. They are Campbell's ex'ors v. Campbell's ex'or, 22 Gratt. 649; Moss, &c. v. Moorman's adm'r &c., 24 Id. 97; Williams' adm'rs v. Skinker & wife, 25 Id. 507; and Mills & als Hannah's adm'r v. Boyd, &c., Id. 692, decided in 1872, Mills' ex's 1873, 1874 and 1875, all of them having been decided after the case of Myers' ex'or v. Zetelle, and two of them after the case of Staples & als. v. Staples & als.; Lancaster but all six of these cases having been decided by this court within a period of less than three years. In neither of them is any question raised as to the authority of any of the rest; and it cannot be supposed that the court intended in any one of them to change or modify the doctrine of any of those which preceded it, and still less the doctrine of either of the two cases of Myers' ex'or v. Zetelle, and Staples & als. v. Staples & als., which had so recently been fully and ably argued by counsel, and maturely considered by the court, and concurred in by all the judges present at the decision of those two cases respectively. These cases are, I think, all consistent with each other, although there may be in some of them expressions which, taken from the context, may appear to be inconsistent with other expressions to be found in other cases. In Campbell's ex'ors v. Campbell's ex'or, the executors of J. B. Campbell called in a debt due in good money to their testator's estate and perfectly secure, for the purpose of investing the amount in Confederate bonds, Confederate money being then at a great depreciation. And their motive for making the change of investment was the gain which they and their brothers, who owed the debt, would thereby realize. This court held that "it was a devastavit to call in that debt or any part of it for the purpose of making an investment in Confederate bonds. The investment act contained an ex 1877. March press proviso that nothing therein contained should Term. authorize a fiduciary to change the character of an existing investment." Mills & als V. & als. Same V. Lancaster &als. In Moss & wife v. Moorman's adm'r fc., it was held Mills' ex's that "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 by the representative in this case-unless there be something in the condition of the debt, or in the state of the demands of creditors or legatees of the estate, or otherwise, which makes it to the interest of the estate that the debt should be so received." "In this case," said the judge who delivered the opinion in the case, in which two of his brethren concurred, and in the results of which all the judges concurred, "it is not pretended that the debtor was not perfectly solvent and likely to continue so at the time his debt was received by the administrator of the creditor; nor that the collection of the debt was required for the purpose of being paid to creditors or legatees. of the deceased. The money was not in fact paid to creditors or legatees after it was received by the administrator, but was either used by him for his own purposes or remained in his hands until after the war; on which subject there seems to be no evidence in the record. Where, then, was the necessity or propriety of receiving it in a depreciated currency-depreciated, it is said, to the extent of eight and a half to one as compared with gold? How was the estate benefited thereby?" Surely it cannot be necessary to say anything more than what is said in the context before stated, to show that it is not at all inconsistent with either of the two cases referred to and relied on as governing the case under consideration. A prudent 1877. March Term. Mills & als V. & als. Same V. & als. man, in the management of his own affairs, would not, with a view to his own worldly interest, have received payment of a debt due to himself in good money, and well secured in a currency depreciated to the extent of eight-and-a-half to one as compared with gold, unless Mills' ex's he had some very good reason for doing so, such as the payment of a specie debt, the supply of his necessary wants, the purpose of speculation, &c. A personal Lancaster representative, therefore, ought not to receive payment of a well secured debt, due to a decedent's estate in such a depreciated currency, in the absence of some good reason making it his duty to do so. In the absence of such a reason, the debt, being perfectly secure, ought to be permitted by the personal representative to remain as it is, and not be collected in a depreciated currency merely for the purpose of changing the investment, however secure the new investment may be considered ultimately to be. If he should make such a collection and reinvestment, and the new investment should turn out to be worthless, it would be reasonable to hold him liable as for a devastavit. In the case of Moss &c. v. Moorman's adm'r &c., there was not even a reinvestment in a Confederate bond or otherwise. In Williams' adm'rs v. Skinker & wife, Williams, the executor of Hite, received payment in depreciated Confederate money of a well-secured specie debt, well knowing at the time that he had no authority to receive such payment, except with the consent of the legatees, to whom it belonged, one of whom did not consent, and against whose claim the executor received. from another party such indemnity in Confederate money as was deemed to be sufficient. The executor was held to be liable to the non-consenting legatee after the war for her portion of the debt in good money. Surely it cannot be necessary to say anything VOL. XXVIII-61 1877. March Term. Mills & als V. & als. more to show the consistency of that case with the other cases before referred to. But I will quote here a remark contained in the opinion of Judge Christian in that case, in which a majority of the judges concurMills' ex's red, which remark is certainly very just, and is stated by the reporter in his syllabus of the case as one of the points therein decided; that "it is difficult to lay down any general rules applicable to all cases which arise out of dealings by executors during the war. Each case must depend upon its facts and the circumstances at the time surrounding the executor." Same V. Lancaster &als. In Hannah's adm'r v. Boyd & wife &c., the same remarks apply as were made in reference to Moss &c. v. Moorman's adm'r &c. And if there be any other decision of this court which may seem at first glance to be inconsistent with the cases of Myers' ex'or v. Zetelle, and Staples &c. v. Staples &c., the apparent inconsistency will doubtless disappear on looking to the context. I base my opinion in this case "upon its facts and the circumstances at the time surrounding the executors," according to the rule laid down in Williams' adm'rs v. Skinker & wife. Those facts and circumstances have already been fully detailed. The executors acted under a will, made in the midst of the war, when Confederate money was almost the only currency. It conferred on them the greatest powers, and clothed them with very many important trusts. It empowered and directed them expressly, or by plain implication, to sell all his estate, real and personal, except slaves, and specific devises and bequests, and to collect all his debts, so as to have all his estate, except as aforesaid, in their hands, in the form of money or "funds," to be applied as soon as possible to the payment of his debts, and the many legacies given by the 1877. March Term. Mills & als V. & als. Same V. Lancaster & als. will to his large family of children and grandchildren, most or many of whom seem to have been dependent on their interest in his estate for their means of subsistence. He lived nearly a year after the date of his will, and made no alteration in it. On the contrary, he Mills' ex's continued until his death to receive payment of specie debts due him, and well secured by liens on real estate, in Confederate money, though greatly depreciated as compared with gold, and to invest the money so received in Confederate bonds, plainly signifying to his executors that he wished them to pursue the same course in the administration of his estate after his death. He thus received in 1862 the whole amount of the debt due him from Lewis Hyman, $7,500; one-half of the debt due him from Charles Y. Morris, $9,000; $1,000 of the debt due him from Thomas Bradford, all mentioned in the fourth clause of his will, which provides for the payment of the legacy thereby given to his daughter, Mrs. Robinson. Thus showing that he intended that his executors should collect the debts mentioned in that clause, or such of them as might remain uncollected by him at his death. Under these circumstances the testator died, and his executors qualified as such, and proceeded diligently to execute his will according to its plain directions, making sales of his property and collections of his debts in the only currency in which they could possibly be made, and making them under the peculiar circumstances which have already been fully recounted. But I have said enough in the case, and therefore will say no more than to conclude that, upon the whole, I am for affirming the decree appealed from; and I entirely concur in the able opinion of the learned chancellor who pronounced that decree. |