
    WILLIAM SAVIDGE, TRUSTEE UNDER THE WILL AND OF THE ESTATE OF MANUEL ANTONIO BARETE, DECEASED, AGNES SOARES AND MANUEL SOARES, HER HUSBAND, FRANCISCA GUERRERO AND BEN GUERRERO, HER HUSBAND, EMELIA BARETE, THEOFF BARETE, A MINOR, BY FRANCISCA GUERRERO, GUARDIAN OF HIS PERSON AND PROPERTY, LUTELLO BARETE, A MINOR, BY FRANCISCA GUERRERO, GUARDIAN OF HIS PERSON AND PROPERTY, MANOEL BARETE, A MINOR, BY MARIA BARETE, GUARDIAN OF HIS PERSON AND PROPERTY, AND JOSE BARETE, A MINOR, BY J. D. McVEIGH, GUARDIAN OF HIS PERSON AND PROPERTY, v. RICHARD ANTONE (OTHERWISE KNOWN AS ANTONIO RICHARD AND AS ANTONE RICHARD) AND A. J. LOPEZ.
    Appeal prom Circuit Judge, First Circuit.
    Argued January 20, 1909.
    Decided January 27, 1909.
    Hartwell, O.J., Wilder and Ballou, JJ.
    Executors and administrators — liability for disposition of personalty.
    
    A bill originally charging conspiracy and fraud and now sought to be maintained against an executor for wrongfully disposing of a leasehold of the estate is properly dismissed upon the finding of the trial judge, warranted by the evidence, that the executor received consideration and was acting in what he believed the best interests of the estate.
   OPINION OF THE COURT BY

BALLOU, J.

The plaintiffs, being the heirs and trustee under the will of Manuel A. Barete, deceased, brought a bill in equity against the two defendants, alleging that Richard Antone while executor of the will of said Barete had neglected to inventory a leasehold owned during Barete’s lifetime by Barete and Antone as tenants in common; that Antone as executor had assigned the estate’s half interest in the leasehold to the defendant Lopez, the consideration named in the instrument being “value received,” and that nine months after this assignment Lopez and Antone assigned the leasehold to Henry Holmes for $2000. The bill charges that the whole transaction was a conspiracy between Antone and Lopez, the assignment being a mere formal transaction and the purported consideration wholly fictitious, and that Antone received the entire profit of the assignment. The bill prayed that the defendants be declared trustees in respect to the estate’s share of the moneys realized from said assignment and be ordered to account therefor.

Defendants answered averring the bona fides of the transaction and the case went to trial. At the close of the plaintiffs’ testimony plaintiffs voluntarily discontinued as to Lopez, their counsel stating that they had failed to establish the allegation as to his connivance and collusion. The bill is now sought to be maintained against Antone upon the theory that he gave away a leasehold belonging to the estate which was actually worth $1000.

Without considering the question whether upon this theory of the case the bill presents any grounds for equitable relief we will consider the merits of the case as shown by the evidence. The transaction on its face has a number of points which would naturally excite suspicion. The circuit judge, however, was satisfied from the evidence that the leasehold was in fact worthless; that Antone, believing it to be a positive detriment, made repeated endeavors to persuade the lessor to cancel the lease; that Lopez gave consideration for the assignment by agreeing to pay and paying the rent due from the estate which was in arrears to the amount of $300 as well as by assuming liability for future rent. The judge further found that Lopez was unable to make the land profitable; that W. W. Ahana, the principal party in interest in the subsequent purchase, paid an inflated price under the influence of a land boom and a mistake as to the extent of the boundaries, and that Ahana, after letting the land lie idle for several years, induced the lessor to cancel the le.ase by paying three years’ rental in advance, coining out of the transaction about $4000 loser. Since that time it appears that the land has been unused for any purpose.

O. F. Clemons (Thompson & Clemons on the brief) for plaintiffs.

J. A. Magoon for defendant.

Upon a review of the whole testimony we are of the opinion that the findings of the circuit judge were warranted by the weight of the evidence, and while the executor is' open to criticism for not including the leasehold in his inventory, we must concur in the conclusion that in assigning the half interest in the leasehold to Lopez for the consideration agreed upon he was acting in what he believed the best interests of the estate.

The decree appealed from is affirmed.  