March Term. Mills & als V. Mills' ex's & als. Same V. Lancaster & als. Thus 1877 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 circulation 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 property and in the payment of debts due him, about $19,000 in this currency. 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 about two and a half for one, and was generally received in payment of debts, as well as for real estate sold. The Leigh street property was sold for $128,236.30. It was assessed in 1859 at $28,850. It therefore sold for a price which, if converted into gold, would have produced at least $50,000. The purchasers thus paid more than full value for it, and the sale at this large price might well have been considered by the executors, as it was by others, as "advantageous." But whether "advantageous" or not, having full power to sell, neither the executors nor the purchasers in the absence of fraud, can be held liable to the legatees for any loss incurred in consequence of such sale. 1877. March Mills & als V. Mills' ex's & als. Same 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 Lancaster title to the purchasers 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. As the Exchange hotel rent charge stands upon V. & als. March 1877 somewhat different grounds from the other abovenamed debts, that will be first considered. Term. V. & als. Same V. On the first January 1839, Nicholas Mills and Sarah Mills & als his wife "leased, demised, granted, and to farm let," Mills' ex's 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 Lancaster 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 ninetynine years, with an annual rent of $1,600, payable likewise in equal quarterly portions. &als. In the contract of lease, it was stipulated that the property should be conveyed to the lessees absolutely in fee simple with general warranty at any time after January 1st, 1840, upon the following condition: “On receiving from the said parties of the second part, their heirs or assigns, the sum of $25,000, current mo‐ ney of the United States, and all rents that shall have accrued on the premises hereby demised, to the time of such payment of the $25,000 aforesaid; and at any time after the expiration of five years, from the first day of January, in the year 1840, during the term hereby granted, to convey the premises hereby demised, with all houses, buildings and improvements thereon, and appurtenances thereto belonging, or in any 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, sixteen hundred dollars, like money, in quarterly payments. 1877. March Term. Mills & als V. 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 lesses to obtain from the lessors a fee simple title upon the payment of Mills' ex's 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 Lancaster to produce this amount was $26,666.663. 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 $26,666.66%, secured upon ample and unquestionable security, and paying in quarterly payments $1,600 per annum, these executors received what was worth a little 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 a corVOL. XXVIII-63 & als. Same V. & als. March Mills & als 1877 responding income of $10,000 out of which to be Term. 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 Mills' ex's debt, so well secured, in Confederate money, so greatly depreciated, cannot be excused or justified on any ground. V. & als. Same v. Lancaster & als. 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 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 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. In Campbell's ex'ors 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 se |