
    Perry vs. Wooton.
    1.‘ Au aclminstrator is bound to use due diligence in the collection of debts due the estate, and if debts are lost by his failure to sue in due time, he is responsible personally to the distributees.
    2. If distributees agree that an administrator may indulge the debtors to the estate, and by such indulgence the debts are lost, they have no right to complain.
    3. The fact, that an ad.uinistralor regarded himself personally liable, and expressed himself to that effect, would not change the facts, nor constitute a liability which the law did not raise upon the facts of the case as exhibited in proof.
    This bill was filed by Perry against Wooton, executor of Perry deceased, and against Jones, in the Chancery Court at Huntingdon, for an account of the estate of Perry, deceased. Complainant was one of the legatees, and Jones and bis wife entitled to the other share.
    This bill charges the administrator with negligence, in failing to collect a note for $1,400, on Armour & Cromwell, exer cuted to the deceased in his lifetime.
    The answer denied the neglect, but charged, that the delay in taking steps to collect the money, took place with the consent and approbation of complainant and the other legatee.
    The case was tried at the August term, 1842, by Chancellor McCambell, on bill, answer, pro confesso judgment, and proof, and the bill .was dismissed.
    The complainant appealed.
    
      Totten, for complainant.
    If a person accept the trust of executor, he must perform it. He must use due diligence, and not suffer the estate to be injured by his neglect. 2 Williams Ex. 1111-and 1112: Lawson vs. Copeland, Brown’s Rep. 156: ‘Powell vs. Evans,^^39: Tibbs vs. Carpenter, 1 Mad. 298: Cartwright vs. Cartwright, 4 Hay. 135: Shultz vs. Pulver, 11 Wend. R. 363.
    That the note on Armour was lost by neglect, when it could have been collected or secured by ordinary diligence, there is no doubt. The note was due for two years — was without security, real or personal. Is there any excuse for this neglect? It is pretended, the delay was in virtue of an agreement with the plaintiff. There is no proof of this fact. It is true Mr. Armour states, that Perry was willing to take notes on Randolph, and Armour & Cromwell’s note for the balance due to him, Perry.
    But, then, this was no agreement — it was not carried into effect. And it does not appear that Perry ever authorized the executor to wait — or ever stated to him that he was willing to wait. No arrangement then was ever entered into between Armour Wooton and Perry to give time. All parties no doubt deemed Armour solvent till some time in 1839.
    But it was not the business of Perry to advise or prompt the executor. Perry was only interested as to part of the note. The executor was willing to delay, and advised Armour to get the consent of the legatees. It was incumbent on the executor tó act for all, and independently of any legatee.
    Add to this the fact, that the executor charged himself with the amount of the note in his final settlement, which is of record, and charged commissions for the settlement of this note.
    And further, the executor, in view of all the facts, admitted that he was liable for the note; because he had neglected to collect or secure the note. He of course knew what facts did occur, and in view of them, he considered himself liable. The fact is Mr. Wooton delayed, and yet he charged himself with the note; because he considered that Mr. Armour would be able at any time to make prompt payment.
    The deliberate acts of charging himself with the note as cash, and claiming commissions on it; and, also, admitting the liability, on account of the neglect in not collecting or securing the note, must explain the other doubtful facts, and fix the liability of the executor.
    The case is much stronger against the executor, than some of those referred to. He that assumes the office of executor should perform it with diligence and good faith. The rule should be reasonably strict, for the benefit of the cestuis que trust, who are generally minors, and in most cases unable to charge neglect and improper conduct on an executor, even where he is guilty.
    The law defines his duty; it is plain and simple, and let that be the rule to govern him.
    
      
      Burrow and Me Curry, for complainant.
    
      McLanahan, for defendant.
   GREEN, J.

delivered the opinion of the court.

The defendant is executor of Nathaniel Perry, deceased, the father of complainant. And the only matter of dispute in the cause is, whether he is chargeable with .negligence for failing to collect a note of fourteen hundred dollars, due the estate from David Armour & Cromwell.

Nathaniel Perry died in the spring of 1838, and David Armour & Cromwell were solvent and the note could have been collected at any time until the spring of 1840.

It is admitted that the failure to collect this note for so long a time, would have been culpable negligence on the part of the executor, and would have rendered him personally liable for the money, but for the complainant’s interference, and his acquiescence in the forbearance of the executor.

It appears that David Armour & Cromwell were merchants in Jackson, of high standing, and were greatly respected by the testator and his son, the complainant. The money due on the note, had been loaned to Armour by the testator, who desired it to remain in Armour’s hands until it was needed, and the note had been executed a short time before the testator’s death, through the agency of the complainant, and a memorandum was placed on the note, that if the money should not be called for in twelve months, the obligors were to pay eight per cent, interest. The note was in the hands of the complainant when the testator died, and he continued to retain it, with the permission of the executor, until a short time before the failure of D. Armour & Cromwell.

In the fall of 1839, Jones, one of the legatees, who lived in North Carolina, came to Tennessee for his share of the residue of the estate. Armour was notified by the executor of Jones’ intended visit, and was informed that he wished to settle up with the legatees.

To enable the executor to settle with Jones, Armour paid about three hundred dollars on his note, and not finding it convenient to raise the balance, he applied to the executor for further indulgence, who referred him to the legatees. Armour applied to the complainant, who was the principal legatee, who told him, “he did not .particularly need the money, and as for himself he was willing to wait.” The complainant also said he was willing to take a note on David Armour & Cromwell for his part.

This conversation was communicated to the executor, who made no further effort to collect the money; and the house of D. Armour & Cromwell soon afterwards failed, whereby the .debt has been wholly lost to the estate.

The question upon these facts is, whether the defendant was guilty of negligence, in failing to collect this money for the two years within which the debtors were solvent, after it was due.

Unquestionably an executor is bound to use diligence in discharge of his duties, and not to permit the estate to be injured through his neglect. 2 Williams Ex’rs, 1111 and 1112. And if there were no fact in this case to excuse the defendant, he would certainly be liable for the money which has been lost by the insolvency of these debtors to the estate. But under all the circumstances, we think he was excusable for the delay.

The complainant told Armour at the time the note was given he wished the money to remain in his hands until it was needed. All parties had the most unbounded confidence in the solvency of D. Armour & Cromwell, and the testator and his legatees seem to have entertained great respect and kindness for David Armour. All parties felt that the money was entirely safe in Armour’s hands, and the complainant, as well as his father, doubtless desired it to remain there until it was needed.

There seems to have been a constant communication and friendly understanding between the executor and the complainant upon the subject. Hence the complainant retained possession of the note more than a year after the defendant qualified as executor, and when the debtor desired further indulgence, he was referred to the legatees (of whom the complainant was the principal legatee) to obtain their consent. When, at last, Jones came to this country for his legacy, and the executor wished to settle up the estate, the complainant told Armour he did not need his money, and was willing to wait, and take the note of D. Armour & Cromwell for his share. These dispositions of the complainant towards Mr. Armour, manifested so late as the winter of 1839, are satisfactory proof, that he bad all along approved the delay of the executor to collect the note. The testator owed no debts, and the executor had no use for the money, but to pay off the legacies. Had he collected it, the interest would have ceased, and the parties entitled to the fund, would have failed to realize the 8 per cent, interest Armour had promised to give, and would have deemed their money in hands no more safe, than in those of the debtors. They, therefore, did not wish the executor to collect it, and with this feeling on their part, he was well acquainted.

In this view of the case, the defendant cannot be regarded as culpably negligent for failing to do that which he knew those who were interested in the fund desired him to refrain from doing.

Much stress is laid upon the fact, that the defendant said, after the failure of D. Armour & Cromwell, that he had rendered himself liable for the debt. His opinion, that he was liable, would not change the facts, nor constitute a liability which the law did not raise upon those facts.

The complainant is entitled to a decree for one-half the sum in the defendant’s hands, according to his settlement with the County Court, excluding the note on D. Armour & Cromwell, and each party will pay half the cost.  