
    *Staples & als. v. Staples & als.
    January Term, 1874,
    Richmond.
    
       Absent, Staples, J.
    Wills—Sale—Confederate Money.—S. died in July 1861, and by his will, which was made in February 1861, he directs “that all of my estate be sold as soon as the times seem to justify a sale without a sacrifice, and the proceeds without regard to any advancement heretofore made, be equally divided amongst my children,” naming them,- and the children of two who were dead to take per stirpes. There were nine children living, of whom six lived in Virginia, and the other three and the grandchildren lived in Missouri. D, one of his sons, was his executor. In July 1862 D sold the estate, except $4,000 of Amherst bonds, the sale being for Confederate money, and on the terms of cash for one-third, and on a credit of one and two years for the balance, the purchasers giving their negotiable notes. These were paid at maturity, and conveyances made by the executor to the purchasers. One place was purchased at the sale by T, and soon afterwards T sold to the executor, who afterwards sold and conveyed to C. The sales were fairly made and brought fair prices, according to the value of Confederate money at that time. The executor settled his accounts regularly, and promptly paid the debts, paid to the six legatees living in Virginia, their shares of the estate; and on the 24th of August 1864, on his petition, the Circuit court of Amherst county made an order that he be authorized to deposit in the Citizens Savings Bank of Lynchburg, the sum of $9,000, in the names of the legatees living in Missouri; which was done on the 7th day of December 1864. On a bill by the legatees in Missouri, to set aside the sales and hold the executor and the Virginia legatees to account, Held: *i. Same — Same. —The discretion as to the time of sale, is given by the testator to the executor, and he having acted in good faith, the sale was valid, whether his judgment that a sale could then be made without a sacrifice was reasonable or not.
    2. Same—Same—Purchasers.—Bve-n if the executor acted in bad faith, yet if the purchasers at the sale had no knowledge of the fact, but acted in good faith in making and completing their purchases, they acquired a good title to the land purchased by them respectively.
    3. Same—Same—Confederate Money.—That the sale was made for Confederate money at that time, and under the circumstances, can not affect the bona fides of the executor or the validity of the sales.
    4. Same—Same—Same.—The fair mode of considering the prices paid for the property is, to estimate the value of the price in Confederate money as at the time of the sale.
    5. Same—Same—Purchase by Executor.—An executor or other trustee can lawfully purchase for his own benefit, property, though it may have been purchased by his vendor of himself as such executor or trustee; provided that the transaction oe real and bona fide.
    
    6. Same—Same—Same.—If the sale by the executor to T was a sham sale, it was fraudulent, and if not absolutely void it cannot enure to the benefit of the executor, but only to that of the legatees.
    7. Same—Same.—The executor did not commit a breach of trust in receiving Confederate money in payment of the deferred instalments of the purchase money of the real estate, at the maturity of those instalments.
    8. Same—Same—Bona Fide Purchasers.—The purchasers at the sale having in good faith paid the amount of the purchase money dueOby them, and the executor having in good faith received it, and executed conveyances to them, they became entitled, in law and equity, to the property purchased by them respectively, and their title thereto can not, therefore, be impeached.
    9. Same—Same —Payment to Legatees.—The payments made by the executor to the resident legatees, on account of their interest in the proceeds of the sale of the estate, were rightful and proper payments; and cannot be recalled at tbe suit of the non-resident legatees.
    I(). Same—Same—Non-Resident Legatees.—The executor committed no breach of trust by retaining in his hands, as he did, the portions which belonged to the non-resident legatees, and in depositing the same in the sayings bank under the order of the court, as he did; and incurred no liability in regard to the same, except for the depreciation of the money so deposited between the time it ought to have been deposited and the time it was actually deposited.
    ii. Same—Same—Same.—1The loss arising from the depreciation of the portions retained by the executor and deposited in the savings bank for the nonresident parties as aforesaid, ought to fall on them alone, and not on all the legatees equally, including those residing in the State,
    is. Same—Same.—The proceeds of the sale of the Amherst bonds should be divided among all the legatees equally.
    On the 19th of February 1861 David Staples, late of the county of Amherst, made his will, and he died in July of that year. In September following the will was admitted to probate in the County court of Amherst, and David T. Staples qualified as executor.
    By his will the testator gave to his widow during her life a negro woman, and $200 a year; and to his daughter Emity his piano and $100 a year until his estate was divided, or a division of some portion of it should occur. He then says: “I will that all of my estate be sold as soon as the times seem to justify a sale without sacrifice, and the proceeds, without regard to any advancement heretofore made, to be equally divided amongst my children, William A., Nelson C., Polly Ann, James M., Betsy Ann, Emily Ann, Frances Ann, Julia Ann and the children of Cynthia Plunket dec’d, and the children of Ro. S. Staples dec’d; the children of the said Cynthia Ann Plunkett and the children of Robert S. Staples to take per stirpes.”
    By the will Nelson C. Staples, who lived in Missouri, was appointed trustee for Robert S. Staples’ children *who also lived in that State; and David T. Staples the son of the testator, was appointed executor of the will, with directions that he should be permitted to qualify without giving security.
    In October 1861 an inventory and appraisement was returned to the court; and among the property mentioned in that paper, were a store house and lot in Lynchburg, appraised at $7,000; a place in Amherst called Mount Airy, with eighty acres attached, appraised at $5,000; and another in the same county called City-view, with four acres, appraised at $2,500; four Amherst bonds of $1,000 each, appraised at $3,000, and five slaves appraised at $2,100.
    In July 1862 the executor sold the estate, except the Amherst bonds, which he seems to have retained for the purpose of paying the annuity to the widow; and he settled his accounts regularly before the court of probate; and on the 24th of August 1864, upon his petition, the Circuit court of Amherst county made an order, that he be authorized to deposit in the Citizens Savings Bank of Lynchburg the sum of $9,000, in the names of. the five legatees living in Missouri; which was done on the 7th of December 1864. He paid the six legatees living in Virginia the full amount reported by the commissioner to be due to them.
    In July 1866 Nelson C. Staples, and the other legatees living in Missouri, four of whom were infants who sued by Nelson C. Staples as their next friend, brought their suit in equity in the Circuit court of Lynch-burg, against David T. Staples, in his own right, and as executor of David Staples deceased, the widow and children of David Staples living in Virginia and the husbands of those who were married, and Charles K. Rucker, Ambrose B. Rucker, and Andrew J. Camp & Co. ; and in their bill, having set out the facts, they charge the sale *of the store house and lot to Ambrose B. Rucker, at $11,000, and that called City-view to Charles H. Rucker, at $3,725, were void for inadequacy of price, and because the sale was without authority. And they insist that the sale of Mount Airy was void, not only on these grounds, but also because it was purchased by the executor at the sale made by himself. They insist that the Virginia legatees shall account for what they have received, and that the plaintiffs shall not be charged with the moneys deposited in the Lynchburg Savings Bank; or if chargeable at all, only with the value of said deposit. And they pray that the sales of the real estate be set aside, that
    
      the parties who received the proceeds of the sales of the estate of David Staples deceased, may be required to account for the values received by them respectively, and said estate be divided among the legatees equally, as directed by the testator’s will; that the executor be required to settle his accounts de novo in this suit; and for general relief.
    Ambrose B. 'Rucker, who purchased the store house and lot in Bynchburg, Samuel J. Turner, one of the sons-in-law of David Staples deceased, to whom Mount Airy-was knocked off at the sale, A. J. Camp & Co., who afterwards purchased Mount Airy from David T. Staples, and the said David T. Staples answered the bill.
    It abundantly appeared from the evidence, that the sales were fairly conducted, that there were many persons present, and in the opinion of the witnesses, the property sold for fair prices. But the sales were for Confederate money, and were on the terms of one-third cash, and the balance on a credit of one and two years. The Ruckers paid the cash payment, and gave their negotiable notes with an endorser for the deferred payments, which were paid when they fell due; and the executor conveyed to each the property he had purchased. *The facts in relation to the Mount Airy tract are stated by Judge Mon-cure in his opinion.
    By a decree made on the 28th of June 1867, the bill was dismissed with costs as to the Ruckers, and the executor was directed to settle his accounts before a commissioner of the court; and under a subsequent decree, the Amherst county bonds were sold.
    The commissioner returned his report, in which he charged the executor with interest on the sum of $9,000 directed to be deposited in the Bynchburg Savings Bank, from the date of the order of the court authorizing the deposit in said Savings Bank, until it was made; and ascertained the amount of each of the eleven shares in Confederate money on the 16th of December 1864, to be $1,912.24 of principal and $134.90 of interest. To this report the plaintiffs excepted; and especially protested against being charged with the $9,000 deposited in the Bynchburg Savings Bank.
    The cause came on to be finally heard on the 20th of June 1870, when the court held that A. J. Camp & Co. were bona fide purchasers of the Mount Airy place,' without notice of any fraudulent combination between David T. Staples and S. J. Turner, if there was such combination, of which there was no proof in the cause; and such being the fact the said A. J. Camp & Co. were entitled to th,e said Mount Airy estate against the plaintiffs, and decreed that the plaintiffs pay them their costs, &c. '
    The court further held that the executor was justified in selling the property of his testator at the time it was sold; and having sold it in perfect good faith, and with the assent of the legatees in Virginia, he was not to be charged with its value in consequence of its having perished by the results of the late war; but he should be credited with the amount deposited in the Bynchburg ^Savings Bank. And scaling the amount reported by the commissioner above the amount deposited, he gave the plaintiffs a decree against the executor for this amount; and also distributed the proceeds of the Amherst bonds among all the legatees. Prom this decree the plaintiffs applied to this court for an appeal; which was allowed.
    Mosby, Jones & Bouldin and Jno. B. Robertson, for the appellants.
    Kean, Kirkpatrick & Blackford, for the appellees.
    
      
      Judge Staples was related to some of the parties.
    
    
      
      Wills — Sale — Confederate Money.—See Moss v. Moorman’s Adm’r, 24 Gratt. 97, and note, and see Moon v. Richardson, 24 Gratt. 219, and note.
      
    
   Moncure, P.

delivered the opinion of the court.

The court is of opinion, that the appellee, David T. Staples, executor of David Staples, had authority under the will of his testator, to sell the real estate of said testator, as he did on the ninth day of July 1862. The testator, by his said will, which bears date on the 19th day of February 1861, expressly directed all his estate to be sold “as soon as the times seem to justify a sale without sacrifice," and the proceeds, without regard to any advancements theretofore made, to be equally divided amongst his children, naming them, and who were eleven in number, the children of two of them who were dead to take per stirpes; and he appointed his son, the said David T. Staples, executor of his will, and directed that no security should be required of the said executor as such. The testator died on the 1st day of July 1861. His will was recorded, and his executor qualified on the 16th day of September 1861. His estate, real and personal, was inventoried and appraised on the Sth day of October 1861, and his real estate was sold, as aforesaid, on the 9th day of July 1862. At the date of his will, and at the time of his death, six of his children resided in Virginia, and it seems in the neighborhood in which *he died; and the remaining five, including the children of the two who were dead, resided in Missouri, where they continued to reside until after the late civil war. The only question in regard to the authority of the executor to make the said sale arises from the words of the will, which directed the sale to be made “as soon as the times seem to justify a sale without sacrifice.” It is argued that these words create a condition precedent which must take place to authorize a sale; and that the said sale was made before the times seemed to justify a sale without sacrifice. But, who was to be the judge of that matter? To whom did the testator refer the question as to when a sale might be made without sacrifice? Certainly to his executor, and to him only; who was one of his sons, and in whom, undoubtedly, he had great confidence, as is evidenced by the fact not only that he selected him as his executor, but also that he directed no security to be required in the executorial bond. He did not direct, nor seem to contemplate, that any resort should be had to a court of equity, to determine the question as to the propriety of sale; but left the matter exclusively to the discretion of his executor, who had himself a deep interest in the subject, and who was surrounded by brothers and sisters who were alike interested, and whom he would, naturally, advise with on the subject. The very nature and object of the trust required a sale in a short time, and as soon as one could be effected without a sacrifice. There could be no division among his numerous heirs without a sale, and they were equally entitled to the subject immediately. The fact that nearly half of them resided in a distant State increased the necessity for a speedy sale, supposing the time to be suitable, as the property could not continue to be held in kind to advantage under such circumstances. Of course he did not wish the property to *be sacrificed by a premature sale, when, by waiting for a short time, such sacrifice might be avoided. But he wished the sale to be made as soon as it could be without sacrifice; for he so expressly said; that is, as soon as it could be so sold, in the opinion of his executor. These words, “as soon as the times seem to justify a sale without sacrifice,” seem to have been used, as much for the purpose of accelerating the sale as soon as it could be made without sacrifice, as for the purpose of showing that he did not require it to be made until, in the opinion of his executor, it could be done without sacrifice. Probably, when the will was made, land in the testator’s neighborhood was not very salable, but was likely soon to become more so.

Then, the only remaining question in this branch of the case, is: Did the executor act in good faith, in making the sale at the time at which it was made? Did the times then seem to him to justify a sale? Did it seem to him that a sale could then be made without sacrifice?

If he acted in good faith in making the sale, it was valid, whether his judgment that a sale could then be made without sacrifice was reasonable or not, under all the circumstances. And even if he acted in bad faith yet if the purchasers at the sale had no knowledge of the fact, but acted in good faith in making and completing their purchases, they acquired a good title to the land purchased by them respectively. But the court is of opinion that he acted in good faith in making the sale, and that his judgment that a sale could then be made without sacrifice, was reasonable, under all the circumstances. There is no evidence in the record, and there was no attempt by any body to show that the executor acted in bad faith in making the sale. Though real estate may not have been very salable in the neighborhood *when the will was made, it became more so afterwards; and about the time the sale was made, prudent men were making sales of their own land, with a view to their interest. That the sale was made for Confederate money, can make no difference: A sale could be made for no other money at that time, nor at any time afterwards during the war. It was then very doubtful when the war would terminate, and there was no good reason to believe that it would terminate in any" short time. The executor had deferred the sale until about a year after the testator’s death, and there seemed to be no good reason for deferring it any longer. Most, if not all of the heirs residing in Virginia desired a sale, and none of them opposed it. That nearly half in number of the heirs resided in Missouri, whose wishes on the subject were not known, makes no difference. Though they could not, in the then state of the country, receive their portions of the proceeds of sale, yet it was well hoped that they might be able to do so in a short time. The heirs living in Virginia could receive their portions at any time, and those of the non-resident heirs it was no doubt believed, and reasonably believed, by the executor, could be held and secured for them until they could receive their portions. That sales of real estate might properly be, and were frequently made during the war, for Confederate money, under decrees of courts of chancery and by fiduciaries, where non-residents and persons under disability were concerned, has been established by repeated decisions of this court. Dixon & als. v. McCue’s adm’x & als., 21 Gratt. 373; Walker’s ex’or v. Page & als. Id. 636; Poague v. Greenlee’s adm’r & als., 22 Id. 724. Though Confederate money had depreciated, and was perhaps still depreciating, at the time of the sale, yet most persons then hoped and believed that it would soon become better, and ultimately be worth its *par value. At least it was generally, if not universally believed, that Confederate bonds, in which Confederate money could at any time be readily invested, were a perfectly safe investment. Scarcely any body in the Confederate States then doubted the success of the Confederate cause, and perhaps every body believed that in that event those States would be able to pay, and would pay, the entire amount of their debts, great as they would certainly be.

The court is further of opinion, that the said sale was not void or voidable on the ground of inadequacy of price: and that the price at which the property was sold at said sale, cannot be considered as inadequate, under the circumstances which then existed. There is no evidence in the record tending to show that any of the property sold did not produce its full value in Confederate money, on the terms on which it was sold. On the contrary, the evidence in the record affirmatively shows, that all of the said property produced its full value, in such money and on said terms. The sale was duly advertised, and was well attended by bidders, and every effort in the power of the executor seems to have been used by him to promote the sale. Several of the other heirs were present, and none of them objected to the sale, but all seemed to be satisfied therewith. The price at which the property was sold in Confederate money converted into gold at its then market value, at the place where the sale was made, would have exceeded the appraisement price of the property; but we all know that at that time gold was a very scarce commodity and commanded very high price, and that Confederate money was often worth its par amount, or nearly so, in the payment of ante-war debts, or in the purchase of land or other property. In considering the question of inadequacy of price, the value of the Confederate money for *which the land was sold ought to be estimated as at the time of the sale, and not as at the time at which it became payable. according to the terms of sale. No body anticipated, at the time of the sale, that there would be any thing like so great a depreciation of Confederate money as afterwards occurred. On the contrary, most persons, perhaps, believed that its value would continue to be about the same, and many no doubt believed that it would appreciate after a while. The fair mode of considering the subject is, to estimate the value of the price in Confederate money as at the time of the sale. Tested by that rule, there was certainly no inadequacy of price.

The court is further of opinion, that the executor was not a purchaser of Mount Airy at his own sale; but that he purchased it afterwards of S. J. Turner, who had purchased it at the executor’s sale; and that it was competent for the executor, acting in good faith, to become such purchaser from S. J. Turner.

It is certainly well settled, as a general rule, that a trustee for the sale of property cannot purchase it for his own benefit at his own sale, either directly by his own act, or indirectly by the interposition and agency of another; and that an executor is a trustee within the meaning of the rule. But it is certainly true, that an executor or other trustee can lawfully purchase, for his own benefit, property, though it may have been previously purchased by his vendor of himself as such executor or other trustee; provided, of course, that the transaction be real and bona fide. If the sale by the trustee be a sham sale, of course it is fraudulent, and if not absolutely void, it can not enure to the benefit of the trustee, but only to that of the cestui que trust. Now the question in this case is, was S. J. Turner, to whom Mount Airy was cried out at the executor’s sale, a purchaser of that property for his own benefit and on his *own account, or did he purchase it as the secret agent and for the benefit of the executor?

Certainly S. J. Turner was the highest bidder for the property, and it was cried out to him at the executor’s sale. He was in form and to all appearance the purchaser at that sale. If, though in form acting for himself he was really acting for the benefit and as the agent of the executor, their object being to accomplish indirectly and secretly, what they knew they could not accomplish directly and openly, they were both guilty of a great fraud; but in order to establish such a fraud, the evidence ought at least to be very strong.

There is no such evidence if there be any evidence tending to prove such a fraud in this case. On the contrary, all the evidence in the case is consistent with the truth and integrity of the transaction. The account given of it by said Turner in his answer is as follows: “Respondent represents that Mount Airy was at the sale knocked out to him, and not to the said D. T. Staples. Respondent bought said place because he was anxious to secure it as a home to his mother-in-law, the widow of David Staples, and his sister-in-law, then living with her mother. At the time of the sale he believed that he could prevail upon David T. Staples to take the purchase off his hands, though said D. T. Staples was very much averse to doing so, and had urged upon respondent and the other legatees not to sell Mount Airy, but allow it to remain for the present unsold, and be used as a home for their aged mother and their maiden sister. This arrangement was not assented to by the parties; they positively refusing so to do, and insisting that the property should be all sold together. Thereupon respondent determined to buy the property aforesaid; and having done so, prevailed on said D. T. Staples to take his shoes, which he did. Said D. T. Staples, as executor, first conveyed *said property to respondent, and respondent then conveyed it to him, and he afterwards conveyed it to A. J. Camp. Respondent is sure that in respect to this purchase of Mount Airy, the said D. T. Staples acted from the pux-est motives, and with no view .to his personal advantage. The old lady was very infirm, and her husband had made very inadequate provision for her. Respondent, under the circumstances, regarded it as the duty of her children to secure to her a home, and on his part he made this purchase with a view to that end only.”

D. T. Staples, in his answer says: “As to the sale of Mount Airy, charged in the bill to have been made by respondent to himself, he desires to refer to the answer of his co-defendant, Turner, which relates the truth of the case. Respondent never wished to purchase said property. He never would have consented to Turner’s proposition but for the earnest entreaties of the family, who were anxious that respondent should take the house, which was the old homestead, and allow their aged and very infirm mother to occupy it with himself and his unmarried sister. This step was rendered necessary for the comfort of the old lady, the provision for her maintenance having become wholly inadequate early in the war. The price at which said property sold was its full value at the time. A large company of land buyers was present at the sale, and every effort was made to procure the fullest price.”

The evidence on this branch of the subject consisted of the testimony of one witness, W. A. Staples, examined in behalf of the plaintiffs, and three witnesses, Bryan Akers, E. B. Mays and C. H. Rucker, examined in behalf of the Camps, the sub-purchasers of Mount Airy from D. T. Staples.

On the one side, W. A. Staples testitled as follows: ““I was at the sale. Turner and Staples had some conversation abou.t Mount Airy. Turner advised Staples to purchase it; that it would suit him. The latter replied he had no right to buy, being executor, &c. ; intimated or expressed that it would suit him, &c. ”

On the other side, Bryan Akers, who was the auctioneer that conducted the sale, testified as follows: “There was a large crowd present when the sale was made, and the prices obtained were considered good prices at that time, and I think were perfectly satisfactory to the legatees present. Mr. Turner, the son-in-law of David Staples, became the purchaser of the place called Mount Airy, and the price paid for it was then considered a good one. D. T. Staples, W. A. Staples, and one, if not both the Turners, (legatees of D. Staples,) were at the sale. ” E. B. Mays (who had married a sister of S. J. Turner) testified that he was present at the sale. There was a large crowd present. At the time, the prices obtained were regarded as good. S. J. Turner became the purchaser of Mount Airy, and after the sale offered to sell it to the witness, but sold it to D. T. Staples to secure a home for his (the witness’s) wife’s mother, as said Turner told the witness. C. H. Rucker testified as follows: “I was at the sale. I regarded the prices obtained as very good. I was a bidder for Mount Airy, and it sold for more than I was willing to pay for it. I ran it up, I think, above $7,000. I regarded it a good sale. I was pretty well acquainted with that property and had been over it a good deal. D. T. Staples, Jno. B. Turner and Samuel J. Turner, (legatees of David Staples,) were present at the sale. I do not remember whether W. A. Staples was present. (In fact he was.) I have never heard from any of the legatees that they objected to the sale. I was a purchaser of one piece of the property at the sale."

*Thus it appears from the evidence, that S. J. Turner was, bona fide, the purchaser of Mount Airy, on his own account, at the executor’s sale; that after the sale he claimed it as his own property and exercised acts' of ownership over it, first, by offering to sell it to Mays, who married his sister; and then by selling it ,to D. T. Staples, who bought it as a home for his mother and sister; that this arrangement was agreeable to all the legatees who were present at the sale; and that the property produced the best possible price that could be obtained for it, without being in the least degree influenced by the fact that S. J. Turner was the purchaser at the sale, or the fact that D. T. Staples became a sub-purchaser from him; which latter fact had not then transpired, and of course could not then be known to the bidders at the sale. It does not appear from the evidence that there was any agreement or understanding between D. T. Staples and S. J. Turner, when the latter became the purchaser of the property, that he would resell it to the former; and it is very clear that no such resale could have been enforced, if Turner had chosen to continue to own and hold the property. The subsequent purchase by D. T. Staples appears to have been voluntary on his part, induced by the laudable desire of himself and the other legatees who were present, to preserve the family residence as a home for their aged mother and maiden sister. Under these cirumstances, there was nothing in the law to prevent these parties from making this humane arrangement, and it was competent for D. T. Staples to purchase the property, as he did, from S. J. Turner.

It was argued by the learned counsel for the appellants, that by making the purchase, D. T. Staples placed himself in a wrong position, in which his interest conflicted with his duty; that it then and thus became his interest *to accept Confederate money in discharge of the deferred instalments of the price of the property, however greatly the value of such money might depreciate in the mean time; while it might be his duty to refuse to receive it, on account of such depreciation. The books afford no authority for saying that such a circumstance will disable a trustee from purchasing property which had once constituted a part of the trust subject, and had been sold by him as such. S. J. Turner having become the bona fide purchaser of the property on his own account, could sell it to whomsoever he pleased, subject, of course, to the payment of the purchase money due by him, and D. T. Staples had the same right to make the purchase of S. J. Turner that any other person had. It could no more make it to the interest of the executor to do wrong in the execution of his trust than a like purchase of property, at the same time and on the same terms, of any other person would have done; and nobody will say that it would have been incompetent for him to have made such a purchase. That an act may make it the interest of a trustee to do wrong, does not, of itself, necessarily make the act unlawful. It may serve to put us on the alert, and cause us to scrutinize closely the conduct of the trustee; but the question, after all, is, whether the trustee has in fact done wrong or not. In this case, when the purchase was made by D. T. Staples of S. J. Turner, which was probably about the time of, though after the executor’s sale, it did not and could not appear that the purchase would make it the interest of the executor to do wrong, or influence his conduct as executor in any way. Nobody then knew that there would be any material depreciation of Confederate money when the deferred payments would mature, but most people hoped, and perhaps believed, that such would not be the case. Had they not so*hoped and believed they would not, about that time, have made sales of property for Confederate money, payable at future periods, without providing against the effect of such depreciation.

The court is further of opinion that D. T. Staples having lawfully become the purchaser of Mount Airy of S. J. Turner, had a right to resell it to the Camps, whose title, therefore, cannot be impeached: and this renders it unnecessary to consider the ground so much pressed by their learned counsel, in argument, that even if the purchase was made by S. J. Turner, at the executor’s sale, for the benefit of the executor himself, yet the Camps were bona fide subsequent purchasers without notice, and entitled, as such, to the property, against the claims of the appellants.

The court is further of opinion that D. T. Staples is chargeable with nothing on account of the resale by him of Mount Airy to the Camps. He would have been chargeable with nothing on account of such resale, even if he had made a profit by it; his conduct in the transaction having been fair and bona fide. But it appears that, so far from making a profit, he sustained a loss by it; for though the resale was for a larger amount, nominally, of Confederate money than he paid for it, yet, reducing the amounts both paid and received to good money or gold, at the times of such payments and receipts respectively, it appears by the commissioner’s report that the amount paid exceeded the amount received by .$695.83.

The court is further of opinion that the: executor, D. T. Staples, did not commit a breach of trust in receiving Confederate money in payment of the deferred instalments of the purchase money of the real estate at the maturity of those instalments; and the purchasers at the sale, having in good faith paid the nominal amount of *the purchase money due by them; and the executor having in good faith received such payment in full discharge of said purchase money, and executed the proper conveyances, the said purchasers became entitled, in law and equity, to the property purchased by them respectively; and their title thereto cannot, therefore, be impeached.

The contracts of sale by the executor in this case being made on the 9th day of July 1862, though made for so many dollars merely, were, no doubt, according to the true_ understanding and agreement of the parties, to be fulfilled or performed in Confederate States treasury notes, or were entered into with reference to such notes as a standard of value; and if the purchase money had not been fully paid during the war, the case would have come within the operation of the adjustment acts, and been settled accordingly. But, one-third of the purchase money was paid in hand, and for the other two-thirds negotiable notes were given, (certainly by A. B. Rucker, and no doubt by the other purchasers also,) payable one and two years after date, according to the terms of sale; which notes appear to have been punctually paid at maturity; of course in Confederate States treasury notes. The money had greatly depreciated between, the date and the maturity of the negotiable notes, no doubt greatly beyond the expectation of the parties at the time of the sale. But, still the parties considered that the said notes were solvable in Confederate money at par, at the time of their maturity; and such payment was accordingly made by the purchasers, and received by the executor, in discharge of the said notes; and the property was thereupon duly conveyed to the purchasers thereof respectively. These acts of the purchasers and of the executor were done, and this settlement between them was made in perfectly good faith; and they ought not now to be undone or disturbed; whatever might *have been the rights of the parties after the war and under the adjustment acts, if the transaction had not been fully settled, as aforesaid, during the war. This settlement was made in accordance, it is believed, with the general understanding of the country in regard to the construction and operation of such contracts; and similar settlements have no doubt been made, by fiduciaries and others, in a great many cases, which it would be productive of a great deal of evil, confusion and loss to unravel and set aside. < It is far better to let such settlements, made during the war, remain as they were made by the parties, than to attempt now to do justice by setting them aside, and making new settlements for the parties. Courts have enough to do, in regard to these transactions, in settling such of them as remained unsettled at the end of the war. The preamble of the adjustment act of March 3, 1866, affords some idea of the difficulty attending the adjustment of these unsettled matters. After reciting that a depreciated currency, known as Confederate States treasury notes, constituted the only or principal currency, in the greater part of this State, during the late war, and that the result of said war involved the total destruction of said currency, the preamble proceeds to recite, that “whereas there are many contracts which were made, or obligations which were incurred, before the termination of said war, predicated on said depreciated currency, still remaining wholly or partially unadjusted ; in respect to which great uncertainty exists, perplexing alike to debtor or creditor, as to the present measure of their liabilities and rights respectively; and it thus appearing useful that some uniform and equitable rule should be established for the adjustment of such mutual demands and liabilities : Therefore, ’ ’ &c. : That it was the policy of this act not to disturb settlements of these transactions actually made between *the parties is shown by the proviso of the 2d section, “that in all cases where actual payment has been made of any sum of such Confederate States treasury notes, either in full or in part of the amount payable under such contract, the party by or for whom the same was paid, shall have full credit for the nominal amount so paid, and such payment shall not be reduced. ’ ’ The 4th section of the act in regard to a tender, serves to show the view of the legislature as to the effect, not only of actual payment of a Confederate debt, but even of a tender of the amount, on or after the maturity of the debt, and within the period prescribed by the act. We think, therefore, without enquiring what would be the most reasonable construction of such a contract, if the question were a new one, that where-ever the parties have, during the war, bona fide settled the matter themselves, as in this case, by paying on the one side, and receiving on the other, the amount of a Confederate debt at its maturity, in Confederate States treasury notes, the transaction ought, forever, to stand and remain as thus settled.

The court is further of opinion that the payments made by the executor to the resident legatees, on account of their interest in the proceeds of the sale of the estate, were rightful and proper payments; that the executor committed no breach of trust by retaining in his hands, as he did, the portions which belonged to the non-resident legatees, and in depositing the same in bank, under the order of the court, as he did; and incurred no liability in regard to the same, except for the depreciation of the money so deposited, between the time it ought to have been deposited under such order, and the time it was actually so deposited; with the amount of which depreciation he has been charged by the decree of the court below; and that the loss arising from the depreciation *of the portions retained by the executor and deposited in bank for the non-resident parties as aforesaid, ought to fall on them alone, and not on all the legatees equally, including those residing in the State; and that the proceeds of the sale of the Amherst bonds were rightly decreed by the court below to belong to all the legatees equally, and not the non-resident parties exclusively.

It appears that the executor promptly and fully paid to the resident parties their portions of the estate, and there is no complaint on their part against him in that respect, although no account between him and them was stated by the commissioner. Those parties residing here, and being entitled to, and ready to receive, their portions, it was the duty of the executor to pay them. But the other parties residing out of the State, and cut off by the war from all communication with the executor, it was out of his power to pay their portions, and he was compelled by necessity to retain them until the end of the war. He retained them safely in his own hands until he made the deposit in bank under the order of court, as aforesaid. It does not appear that he was in any default in not having obtained the order for the deposit at an earlier period. The order was made very soon after the second deferred instalment was paid. He could not know how long it would be before the non-resident parties could receive their portions. He seems to have acted in good faith in retaining the money in his own hands as long as he did. He says he was no speculator, and it is not pretended that he derived any profit from the money, or used any part of it for his own benefit, although he is charged in his accounts with interest upon it while it remained in his hands. The estate of his testator was indebted to a large amount, which exhausted the greater part of the cash payment *for the real estate. The executor himself was a creditor .of the estate, by bond and note, to the amount of upwards of $3,000, which was, no doubt, a specie debt, and is charged to the estate in the executorial account, as of the 14th of August 1862; being then paid in Confederate money. The executor having properly paid the portions of the resident parties, and set apart, and first retained and then deposited in bank, the portions of the non-resident parties, it follows that the loss arising from the depreciation or destruction by the effects of the war, of the money constituting those latter portions, must fall exclusively on the owners thereof, to wit, the non-resident parties; and all the rest of the estate having been divided equally among all the parties entitled thereto, it follows, as a matter of course, that they are all equally entitled to the only estate remaining for distribution, to wit; the proceeds of the sale of the Amherst bonds.

The resident legatees had a right to receive their portions, and did accordingly receive them, leaving the portions of the non-resident legatees in the hands of the executor. That the latter legatees could not receive their portions, by reason of their non-residence and of the war which then existed, was their misfortune, and is not attributable, in the least degree to any fault of the resident legatees; who are, therefore not bound, upon any principle of law or equity, to bear any part of the loss arising from the depreciation of the money retained and set apart by the executor as the portions of the non-resident legatees. The money so retained and set apart was deposited in bank by the executor, in the names of the owners thereof, the non-resident legatees respectively, according to the order of the court, and so remained on deposit until Confederate money perished by the result of the war. Of course, the loss must fall exclusively *on the said owners of the money so deposited. It is said the non-resident legatees never consented to receive those portions, which, therefore, were not theirs. Such consent was not necessary to make them theirs. The resident legatees had of right received their portions, leaving the residue of the funds in the hands of the executor; and the case then stood as if that residue had constituted the whole estate and the non-resident legatees were the only distributees thereof.

The executor throughout the course of his management and administration of his testator’s estate, acted within the scope of his powers and, so far as the record shows, in perfectly good faith. It does not appear that he acted in any respect as a prudent man would not have acted, and did not often act during those extraordinary times, in regard to his own property; and these are considerations which have always had very great, if not controlling,' effect in controversies in regard to the responsibility of fiduciaries in such cases. He acted with the advice and at the instance of all the resident parties, except, perhaps, one of them, who, however, did not object,' was present at the sale, and received his portion of the money. And what is still more important to show the good faith with which the executor acted, he consulted able counsel and acted in pursuance of the advice and instructions of such counsel. The court perhaps, can not judicially know the moral character and professional standing of any particular counsel; but the executor says that he retained as his counsel the late Chiswell Dabney, Esq., who had been the trusted friend and legal.adviser of the testator, and that he strictly pursued the advice of said counsel in regard to all his transactions as executor. That counsel is spoken of in the record as having been distinguished for his carefulness, ability and uprightness, and there is nothing in the record ^tending to show the contrary. The record shows traces of the advice of good counsel in the management of the estate; the executorial accounts having been regularly settled every year, and returned, confirmed and recorded. It would, at least, be a very hard case if, under all these circumstances, the executor should be held personally responsible fqr the loss which has occurred. Certainly that loss is very great; and it has fallen, more or less, on all the parties concerned; though especially on the non-resident parties, by reason of the accident of their non-residence. But this loss has been the result, not of misconduct, but of misfortune, against which human foresight could not guard. Many of our wisest and best men lost their whole estates, after using every means which their wisdom suggested to avoid such a loss. Fiduciaries are fallible like other men, and can not be expected or required to take better care of the estates of others entrusted to their hands, than men of ordinary prudence take of their own estates. It is not strange therefore, that infants, and insane persons, and married women, and non-residents who owned property within the Confederate States during the war, sustained losses as other people did, and were involved in the same calamity which overwhelmed almost all who were in a like predicament.

Upon thie whole, we think there is no error in the decrees appealed from, and that they ought to be affirmed.

Anderson, J.,

concurred in the opinion on all the points discussed, but one. He thought the money deposited in the Eynchburg Savings Bank should have been at the risk of all the legatees.

Decree affirmed.  