
    Lawrason v. Davenport.
    [October Term, 1799.]
    Executors and Administrators — Settling Estate — Liability. — Adm’r selling: a large certificate to pay a small debt, not liable for what the certificate would have sold for if kept but for the market price at his own residence, at the time of the sale.
    Davenport and others brought a suit in the High Court of Chancery against Law-rason administrator of Brown. The bill among other' things stated, that Brown, who was but little indebted, died possessed of some personal property, and entitled to compensation for his servides as an officer during the war; which was, after his death, paid to the defendant Lawrason in certificates and warrants for the interest thereof, to the amount of ^1260. for certificates, and ^581. 1. 4. in warrants; besides some military certificates issued to Brown himself. That Brown died intestate without children, leaving the wife of ^'Davenport and the other plaintiffs, Daniel, Charity and Robert Daugherty, his next of kin and legal representatives. That Brown was a native of Ireland as well as the plaintiffs who are ignorant of matters in Virginia; which was known to Brown, who has disposed of the effects, certificates and warrants aforesaid without sufficient cause, and, except the pittance paid to the plaintiff Robert Daugherty, the whole remains in his hands. That when he sold the ^1260. in certificates, and the ^581. 1. 4. in warrants, during the month of August 1791, there was no debt due from the estate, which rendered it proper, as public credit was then rising. Therefore the bill prays for satisfaction, with an account of the administration, and for general relief.
    The answer admits Brown’s death, and that administration de bonis non has been granted to the plaintiff. States that the certificates for ,£1260. commutation, and the £581. 1. 4. interest thereon never came to the hands of the defendant, nor did he know that as administrator he was entitled to the same, until after the said Robert Daugherty and a certain John Wise (who the defendant is informed is attorney in fact for the plaintiffs) had entered into an agreement concerning the commutation aforesaid; and until Wise, under pretence that he knew of a debt due the estate in Richmond which he thought he could receive, procured a power of attorney from the defendant. That the defendant continued still ignorant of it until after Wise had contracted for a sale of the certificates with Finlay. When the power of attorney proving insufficient and Wise and Finlay disagreeing, Finlay informed the defendant of his title to the commutation certificate; but the defendant knows not the amount. That Finlay proposed to give Robert Daugherty as much for the certificates, as he was to give Wise for them; and the defendant believing Wise knew the value of the certificates, as he had understood he had dealt considerably in certificates, ^agreed to the proposal, and gave a power of attorney ; that the price received for them was .£650., and the defendant believes that to have been as much as could have been gotten for them at the time. That the defendant had no sufficient effects in his hands to discharge a note given by Brown amounting with interest to .£29. 14. 5. That the defendant thought himself more justifiable in giving the power as Robert Daugherty who was the only relation of Brown in America, and who claimed the whole, was desirous that the certificates should be disposed of. That the defendant knows of no debts due to the estate, except some partnership accounts, which are not likely to produce any thing.
    Three witnesses speak as to the relationship of the plaintiffs to the intestate. A fourth proves that he was concerned a moiety in the purchase of the certificates which he believes were worth about eleven shillings in the pound: Does not know when or for what price he sold them; that only four certificates issued for the £'1260., they being all that were asked for; although it was probable that, if requested, more might have been obtained, as the Auditor was usually accommodating in dividing certificates into convenient sums.
    - A fifth witness proves what would have been the value of the certificates in September 1796, had they been funded by the •defendant.
    The Court of Chancery at the September term of 1796, being of opinion, that the disposition by the defendant of the military •certificates and interest warrants, to which his intestate had been entitled, was not justifiable, the articles sold not being com-prized, as that Court supposed, in the terms ■of the act of the general assembly, directing ■executors and administrators to sell such goods as are liable to perish, to be consumed, or to be the worse for keeping, and the sale not being necessary for payment of debts, nor having been *made by public auction, decreed the defendant to pay to the plaintiffs 1887 dollars 55 cents; which would have been the then present value of the certificates and warrants aforesaid if they had been funded, with interest on 4320 dollars 46 cents from the 1st day of the preceding July; after deducting therefrom the £29. 14. 5. with interest from the first of December 1791.
    From which decree the defendant appealed to this Court.
    Call for the appellant.
    Made three points. 1. Whether the plaintiffs had proved themselves entitled to the estate of the decedent? 2. Whether the pa3rment to Wise the attorney of Daugherty, who was the only known relation of the decedent was not a discharge for so much? 3. Whether the administrator could be rendered liable for more than the certificate actually sold for? Upon the first he denied that the evidence was sufficient. Upon the second he insisted that the pajrment was good. Because the law would presume that there were no other relations, than those in this country, if the contrary was not shewn; and therefore payment by the administrator to the only known relation here, and who was proved in a Court of Justice to be the decedents heir at law, would be a sufficient exoneration ; unless it could be proved that he knew there were other relations. For he was not bound to seek throughout all nations and countries for the kinsfolk of the deceased. Therefore as no knowledge of any other relation was proved at the time of the payment to Wise, that was a sufficient defence. Upon the third, he contended that he could not be made liable according to the case of Graves v. Groves, 1 Wash, and Woodson v. Payne, in this court.
    
    Marshall contra.
    The point relative to the title of the plaintiffs rests upon the proofs in the cause, which are conceived to be sufficient.
    *As to the second point made by Mr. Call, the law does not presume that there are no other relations, except what are in this country. There might be some pretext for such a presumption perhaps in the case of a native; but there can be none in case of a foreigner. The administrator in this case had a reasonable ground to believe there were other relations ; and therefore he ought to have inquired and informed himself. He ought either to have demanded security, or waited for a decree of a Court of Justice, before he proceeded to make any distribution. The payment therefore was premature and unjustifiable.
    But if he be liable at all, it must be to the full value of the certificate; that is to say, the plaintiffs are entitled to the certificate itself or the value at the time of pronouncing the decree. The case of Graves v. Groves proves nothing to the contrary. For that was the case of a contract and decided on circumstances: At most, it only proves that the debtor could only be charged with 'the value of the certificates, which he had-promised to deliver, upon the day bn-which they ought to have been - delivered. But 'here the administrator was a trustee Of the'-article, which he ought to deliver in •specie or pay its value at the time of the decree. As to the ca’se of Woodson v. Pajrrie, I am not acquainted with it, 'and therefore am unable to make any remarks upon it. Upon- the whole the administrator should not- have sold more of the certificates than was necessary for - payment of- the ¿29. especially as it is proved he might have divided it; and therefore, having done otherwise, he is clearly liable for the full value at the. time-of.the decree.
    Call, in reply.
    If Graves . v. Groves be laid-aside- altogether, yet that of Woodson v. Payne will completely decide this case. For the holder of the certificate there was a trustee as much as the administrator here. There the trustee having a right to -apply a part disposed of the *whole; • which was the case here; because the administrator had a right, to, sell for payment of the £29. If therefore the trustee in that case was not liable for more than the value at the time of sale, no more is the administrator here. Besides, if the administrator had actually known that the Auditor would have divided the certificate, there was no obligation on him to ask it. But there is no proof of qny. such . knowledge-; and it is far from being certain that the Auditor .would have done so. For it does not follow, that because he would have accommodated Mr. Pollard, an. - acquaintance, in that way, that he would 'have extended the same kindness. to every body, who asked it. For that might be attended with infinite trouble.
    Cur. adv. vult.
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 G-ratt. 6.
    
    
      
      1 Call’s rep. 570.
    
   PENDLETON, President,

after, stating the case delivered the resolution.. of the Court.

There is no question upon the liability of •the administrator to, pay the plaintiiis their due shares, though he paid the whole to Robert without notice; since that payment was at -his peril and he might have secured himself, and perhaps did, by taking security -for Robert to indemnify him.

The only question is, for what sum he shall be liable? whether for what the certificates were really sold for? or for the current market price of such- at the time? or-what they would be now worth, if they had been preserved, had been subscribed into the continental loan office, and had remained in that state?

The opinion of the court, with the reasons on -which it is founded, will appear in the decree formed, and therefore are not anticipated.

“The Court is of opinion, that the appellant was liable to pay .the appellees their distributive .shares of the. intestates estate, notwithstanding his having, paid the, whole to Robert Daugherty without notice of there being other relations, *since such payment was at his peril, and he either did take, or might have required a bond from Robert with, security for his indemnity. That the appellant is 'not liable for what the certificates, if preserved, would in event have produced now, by operations which he was not obliged, if he had power, to pursue, and which, if he had pursued, might in a contrary event of things, have reduced them to nothing: He. had not only power to-sell the.certificates as an article which might grow worse, of which he, acting fairly, was the judge, but was compelled to do so, to raise as well the debt of twenty nine pounds fourteen shillings and five pence, as. the distributive share of Robert Daugherty, a more considerable sum; but the administrator ought to be accountable for the value of thq certificates at.the time, according to the then market price at Alexandria where the intestate died, and . where the administrator lived; as to which the answer is, that- the administrator was induced to assent to the sale made by Robert Daugherty to Finlay, from hi.s opinion of the judgment of Wise, a considerable dealer in certificates, and who,.when those in question were .supposed to be his property, had agreed to sell them to Finlay for the. same price which the latter was to give Daugherty; and adds that he still believes that they were sold for as much as could have been got for them .at that.time and place, tendering .a fair issue for enquiry, whether the .market, price at that time and place exceeded the salesto .this the ap-pellees have made no proofj the price at Richmond, being foreign, and unimportant, and the answer, being responsive to the bill, is unc.ontradicted; for which reason, and since the whole transaction appears to have been fáir, without any view to benefit the administrator or purchaser, and had the approbation, or rather, was the contract of Robert *Daugherty -the only relation then known to the administrator, without, deciding whether the administrator should have sold the certificates at auction upon due notice, or have en-quired further of the current price than of Wise.

“The Court is of opinion, under all the circumstances of this case, that the real sale ought to stand as the market value, and the appellant to . account accordingly ; and that the decree aforesaid is erroneous. Therefore it is decreed and ordered that the same be reversed and annulled, and that the appellees .pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here, and the cause is remanded to the said High Court of Chancery for an account to be taken and a decree according to the principles of this decree.”  