
    *Fugate v. Honakers’ Ex’ors & als.
    June Term, 1872,
    Wytheville.
    Absent, Staples, J.
    
    Executor Not Liable lor Investments in Confederate Bonds.—Testator died In 1863, and by Ms will directs Ms executors to sell his property, and to hold the money in their hands or to loan it out as they think best, and to pay the children as they come of age. The executors, with the concurrence of the adult children, sell for Confederate money, and they pay over to all the legatees who are of age. Two, however, are infants having no guardians, and the executors, under an order of the court, invest $5,000 in Confederate bonds, which are lost. The executors are not liable for the loss.
    This was a suit in equity in the Circuit court of Pulaski county, brought in September 1867, by Eetitia Fugate against Henry Honakers’ executors, devisees and legatees, to surcharge and falsify the account of the executors’ administration settled in the Court of Probate, and if that was not done, that the devisees and legatees might be required to contribute to make her share as legatee equal to the others. The only objection made to the account of the executors was to an item of $5,000, which they had invested in Confederate bonds, under an order of the judge of the Circuit court of Pulaski county. The Circuit court made an interlocutory decree, holding the executors justified in making the investment, and directing a commissioner to take an account of any assets of the testator, which had come to the hands of the executors since thqir last settlement, and also an account between the devisees and legatees ; and thereupon the plaintiff applied to this court for an appeal from that decree; which was allowed. The only error alleged in *the petition is as to the allowance to the executors of the said sum of five thousand dollars; and this is the only question decided by this court. The case is sufficiently stated in the opinion of the court.
    Terry and Pierce, for the appellants.
    Gilmore, for the executors.
    
      
      He bad. been counsel in tbe cause.
    
   ANDERSON, J.

delivered the opinion of the court.

This is an appeal from an interlocutory decree of the Circuit court of Wythe county. The only error assigned in the decree is that it allows the executors a credit for $5,000, which was invested in Confederate securities, and is wholly lost to the estate.

Henry Honaker, the testator of the appellees, departed this life in January 1863. By the ninth clause of his will, he directs his executors to dispose of all his personal property not otherwise disposed of by his will, other than the slaves, to the best advantage, either publicly or privately, as they may choose; and his slaves he authorizes to be sold to masters of their own choosing, and at prices below their appraised value, if necessary to carry out his humane purpose of allowing them to select their masters, &c.

The will was admitted to probate on the 5th of Februa^ 1863, and on the 19th of that month the executors made sale of the property. It had been appraised with reference to Confederate values, and the purchasers were privileged to pay in Confederate money. That constituted the only circulating medium; and it may well be presumed, from the facts in the record, was the currency which it was contemplated by the testator would be received by his executors for the property which he directed them to sell; and upon no other conditions could the sale have been effected, and the purposes and wishes of the testator, as indicated by his will, carried out. The insecurity of the property, in the disturbed *state of the country, seemed also to impress upon the minds of the executors the importance of an early sale; and it was the unanimous opinion and wish of the adult legatees that the sale should be made for Confederate money. The proceeds of the sale, together with cash on hand, of which $2,301 was Confederate money, and $609.40 received on debts due the estate, amounted to $32,535.13.

On the 2d of December 1836, the executors made a settlement before a commissioner of the County court of Pulaski, showing that they had disbursed of that sum $23,855.38, leaving a balance in their hands of $8,679.75. In November 1864, less than a year after the first settlement, they made another before the same commissioner, in which they receive a credit for $5,000, “invested in Confederate bonds, under an order of the judge of the Circuit court of Pulaski.” This credit is allowed by the interlocutory decree aforesaid, and is the ground of the complaint and appeal.

The executors, in their answer, say “they have fully and fairly, so far as the3r know or believe, accounted for and disbursed to parties legally entitled to receive it, all the funds which have come to their hands, except the sum of $5,000, which is about the amount the infant legatees were entitled to. There being no person to whom respondents could safely pay their funds, they applied to the judge of the Circuit court of Pulaski county for authority to invest this sum for the benefit of the persons entitled to it. That an order was made by the said judge, authorizing them to invest it in Confederate States bonds; which they did: and that they deposited the money and obtained a certificate from the proper repository, entitling them to demand a bond for the amount invested. But before the bond was obtained the war ended, and the authority to issue bonds terminated. These statements of the answer are well supported by the proofs in the record.

*The will, if it does not make it the duty of the executors to sell, clearly invests them with power to sell. And in exercising the discretion, they acted with as much prudence and judgment as the most prudent and judicious would have been likely to exhibit in the same circumstances. It is evident that, in perfect good faith, they discharged the trust reposed in them with a view to the good of the estate. They may have erred; if so, it was an error into which the wisest might have fallen. We cannot say they did err. It is impossible to say that, under the circumstances, they could have acted differently with better results. They sold the personal property as directed by the will, and as was desired by all the adult legatees, paid the debts and expenses of administration, and the legacies to those who were capable of receiving payment, retaining only the sum of $5,000— about what was necessary to pay the infant legatees. And this sum they invested in Confederate securities, under the direction of the Circuit court, as authorized by an act of the legislature, that it might be kept at interest, ready to be paid to the infant legatees as they respectively arrived of age to receive it. The authority of the court was not necessarj1- to warrant the investment, as they were expressly authorized by the will “to hold the money in their hands, or to loan it out, as they may think best, and to pay the children as they become of age.” But it shows with what scrupulous care and fidelity they desired to do right, and to conform to all the requirements of the law in the administration of their trust; and it strengthens their claim to the protection of the courts.

Rive thousand dollars of the assets of the estate, which could not be disbursed in consequence of the infancy of some of the legatees, without fault of the executors, but as a consequence of the result of the war, has been lost. Should the loss fall upon them? The case is not now prepared to decide upon whom the loss should *fall. But upon well settled principles, which have been recently declared by this court in Davis’ commissioner v. Harman & al., 21 Gratt. p. 194, and which need not be repeated, we are clearly of opinion that it should not' fall upon the executors. We are of opinion, therefore, to affirm the decree of the Circuit court.

Decree affirmed.  