
    Boyd’s Ex’ors v. Boyd’s Heirs.
    
    July Term, 1846,
    Lewisburg.
    (Absent Baldwin, J.)
    Co-executors — Sale of Real Estate — Proceeds Retained by One — Liability of Others. — J. B. by bis will bequeathed his slaves to his widow and children, and directed, that if the remainder of his personal estate was not sufficient to pay his debts, his ex’ors should sell enough of his real estate to discharge them. The’personal assets were administered by one of the ex’ors, W., who advanced largely to the estate, and there were other debts outstanding.
    The ex’ors then joined in the sale and conveyance of real estate, the proceeds of '-’Which sales the other ex’ors permitted to go into the hands of W.. who was a man of fair character and apparently ample fortune. W. appropriated the proceeds of the sales to himself, and the creditors of the estate recovered judgment against the ex’ors, and levied upon and sold the slaves. W. died and his estate proved insolvent. Held,
    i. Same — Same—Executors Act as Trustees — Fraud. —In the sale of the real estate the ex’ors acted as trustees, and as such were liable only for their respective receipts; unless guilty of fraud or gross neglect amounting to fraud,
    a. Same — Same—Same—Same.—The sale made by the trustees, being necessary for the purposes of the trust, the proof of fraud should be distinct and conclusive to charge one trustee for the receipts of another.
    3. Same — Same—Proceeds—Liability of Co-executors. —The other ex’ors are not responsible for the proceeds of the land received by W.
    
    4. Same — Same—Same—Same.—The other ex’ors are not responsible for the failure of W. to apply the proceeds of the land in his hands to the discharge of the debts: on account of which failure, the slaves bequeathed specifically were levied upon and sold.
    
      5. Same — Same—Executor Liable as Trustee. — W. is not responsible for this fund as ex'or, but as trustee, ana his securities as ex’or, therefore, are not responsible for his waste of it.
    6. Same — Place of Sale — Courthouse.—An execution Saving been levied upon slaves of the estate, they are sold with the assent of the ex’ors. at 11.. instead of the courthouse; and they sell for considerably less than their estimated value. But the sale is fairly made. Held. The ex'ors are not responsible for the difference between the price at which the slaves sold, and the estimated value of them at the time.
    7. Same — Erroneous Satisfaction of Judgment Out of Estate. — After the death of W.. his ex’or pays a judgment recovered against W. as ex’or of 'll. He thenssettles W.’s adm’n account before the Probat Court; by which it appears that W. is a creditor of Ills estate. His ex’or then sues the surviving ex’ors of 11., for the balance of the judgment he had paid, and recovers judgment against them, which is satisfied by a sale of the slaves of the estate. Afterwards, upon a suit brought by 11. ’s children for a settlement of the adm’n accounts, it appears that when the account of W. is properly stated, instead of being a creditor he is a large debtor of 11. ’s estate. Held. There being no evidence of collusion on the part of the surviving ex’ors with the ex'or of W., by which his judgment was obtained, they are not liable for the amount of the judgment recovered against them and satisfied out of the slaves.
    8. Same-Statute — Settlement of Accounts — Commissions. — }V. having died within two years after the passage of the act of February 16th, 1825, requiring ex’ors’ accounts to be settled 'every two years, and forfeiting their commissions if the accounts are not settled; commissions are to be allowed him.
    9. Same — Same—Same- Same. — Ex’ors living more than two years after the passage of the act, and not settling their accounts, are not to be allowed commissions.
    10. Trustees — Accounts of — Commissions—Statute.— Trustees are not embraced in the act of February 16th, 1825; and do not forfeit their commissions by failing to settle their accounts.
    11. Co„executors — Bond—Sureties.—Co-ex’ors join-ingin the same executorial bond, are sureties for each other.
    James Boyd, late of the county of Bote-tourt, departed this life in 1816, haying first made his will by which he appointed Allen Taylor, Elijah M’Clanahan, and Thomas Wilson his executors; who qualified as such in the County Court of Botetourt, and united in one bond for the faithful discharge of their duties.
    The testator in his will, says: “I direct that all my just debts be paid, and in order to enable my executors hereafter named to make such payments, I direct that my negro man Anthony be sold, and all my personal property of every description except the remainder of my slaves; and they are not to be sold. And whatever deficiency, the proceeds of the above named property when sold leaves unpaid, I direct that my executors sell as much of my land and any part thereof, as will be sufficient to pay the whole of my debts.” The testator then gave to his widow for life one third of his slaves and all his real estate not sold for the payment of debts; and he gave the remainder in the property given to the widow, and all the rest of his estate to his two infant children; the eldest of whom was then but two years old.
    In September 1816, the executors proceeded to sell the personal estate directed to be sold by the will, and nearly the whole proceeds thereof went into the hands of Wilson ; the balance was received by Taylor; M’Clanahan taking no part in the administration. In 1818, the personal fund was exhausted, and Wilson, who was the acting executor, was in advance to the estate *upwards of 1200 dollars. The executors then proceeded to sell a part of the real estate, consisting of lots in and adjoining the town of Buchanan. These were sold for one fourth of the purchase money in hand, and the balance in one, two, and three years: and the executors united in convej’ing them to the purchasers. The proceeds of the sales of these lots amounted to §3315 dollars, of which Wilson, who was a man of good character, and apparently ample fortune, received 2796 dollars, and the balance was received by Taylor. At the time of this sale, beside the amount due to Wilson for his advances, there was a debt due to Douglas, and one due to Smith. To neither of these debts was any part of the proceeds of'the lots sold, applied ; but Douglas having recovered a judgment against the executors, issued an execution thereon, which was levied on three slaves belonging to the estate; and they were sold by the officer who levied the execution, with the assent of Wilson and Taylor, at the town of Buchanan, and not at the courthouse.
    In 1826, the executor Wilson died, and an ex parte settlement of his administration account on Boyd’s estate was made by his executor in 1828, before a commissioner acting under an order of the County Court of Botetourt. By this settlement, after charging- him with the proceeds of the real estate which he received, he was found indebted to Boyd’s estate 1201 dollars 35 cents.
    In the lifetime of Wilson a judgment was recovered against him as the executor of Boyd, by Smith, which after his death, was paid off by his executor; and he, after crediting that judgment with the amount found bjr the said ex parte statement to be due from his testator -to Boyd’s estate, brought a suit against the surviving executors Taylor and M’Clanahan, for the balance, and in 1829 recovered a judgment against them for 777 dollars 81 cents. Upon this judgment an execution was ^issued and was levied on slaves of Boyd’s estate, who were sold to satisfy it.
    When the infant children of James Boyd came of age they filed their bill in the Superior Court of Botetourt, against M’Clana-han, the surviving executor of James Boyd, and the representatives of Wilson and Taylor, in which they charged, that the ex parte account settled by Wilson’s ex’or, was grossly erroneous; that Wilson had failed to apply the proceeds of the real estate in his hands to the payment of the debts of the estate; that in consequence of this, the slaves which their father by his will had expressly reserved for the benefit of his family, had been taken and sold under execution; that the other executors had been guilty of gross and culpable negligence in permitting the moneys of the estate to go into the hands of Wilson alone, and in not compelling him to apply these moneys to the payment of the debts; that the sale of the slaves under Douglas’ execution was improperly made at Buchanan, and that the slaves had been sold much under their value; that they had submitted to a judgment in favour of Wilson’s ex’or, when if Wilson’s account of administration had been properly settled, he would have been found to be a debtor to more than the whole amount which he recovered ; and that it was gross neglect in the other executors not to have that account properljr settled. They therefore asked for a settlement of the administration accounts of the executors, including Wilson’s, and that Taylor’s estate and M’Clanahan should be held responsible for any waste of the estate committed by Wilson.
    M’Clanahan and the executors of Wilson and Taylor, answered the bill; and the accounts were referred to a commissioner, who made a report thereon, to which both plaintiffs and defendants excepted. It appeared by the report, that although the items in the ex parte statement of Wilson’s account were substantially the same *with those in the account taken by the commissioner, yet by changing the mode of stating the account, and charging interest, the indebtedness of Wilson was greatly increased; and he owed his testator’s estate much more than the whole amount of the judgment recovered against him by Smith. It also appeared that Wilson’s ex’or had exhausted all - the assets of the estate, and was in advance thereto.
    The principal subjects of controversy upon the exceptions to the commissioner’s report, were, 1st. Whether Taylor and M’Clanahan were responsible for the misuse by Wilson of the proceeds of the land sold and conveyed by the executors jointly; and for failing to compel Wilson to apply that fund to thé discharge of the debt due to Douglas. 2d. Whether Taylor having consented to a sale of the slaves taken under Douglas’ execution at Buchanan, and they having sold for but 800 dollars, when, according to the estimate of the witnesses examined, they were worth from twelve to fourteen hundred dollars, he was liable for the difference. 3d. Whether the executors were entitled to a credit for the amount paid Wilson’s ex’or. 4th. Whether the administration account should be closed with the year 1822, when the last payments for the lots sold had fallen due, or whether it should be brought down to the time when Smith’s debt was paid. 5th. Whether the executors, not having settled their accounts within two years from the passage of the act of February 16th, 1825, were entitled to commissions. On all these points the Court below decided in favour of the plaintiffs, and the commissioner having reformed his report accordingly, and the cause coming on to be finally heard, the Court made a decree by which the estate of Taylor alone was subjected to satisfy the plaintiffs for the amount found due from Wilson. From this decree Taylor’s ex’ors obtained an appeal to this Court.
    "Michie, and John T. Anderson, for the appellants.
    1. The general principle is, that one trustee is not liable for the acts of his cotrustee, unless he has been guilty of fraud, or such gross neglect as to amount to fraud. 2 Story’s Bqu. 516-17, 520-21, 525; Monell v. Monell, 5 John. Ch. R. 283; 8 Bac. Abr. Ex’ors & Adm’rs, letter D 2, p. 454; 2 Fonb. Equ. 78, 181-185; Osgood v. Franklin, 2 John. Ch. R. 1; 14 John. R. 527. This case cannot be brought within the exception to the general rule. Wilson was a man of character, and property. He had faithfully administered the personal estate in his hands; was a large creditor; and as the fund could not be in the hands of the three executors at the same time, he was the most proper person to receive it. But if either of the co-executors is responsible for the acts of Wilson, then they certainly are equally so, and the decree should have been against M’Clanahan as well as Taylor’s ex’ors.
    The levy of Douglas’ execution upon the slaves of Boyd’s estate was the right of Douglas; and it will be for the appellees’ counsel to shew by what means Taylor and M’Clanahan could compel'Wilson to apply the moneys in his hands to the discharge of that execution.
    2. There is no evidence to shew that the slaves sold for less at Buchanan than they would have done at the courthouse; or that the sale was not properly conducted. And surely the fact that they sold at a forced sale for less than the estimated value of such slaves, and that estimate made twenty, years afterwards, is not a sufficient ground for the conclusion that the change of the place of sale was injurious to the appel-lees.
    3. The amount paid to Wilson’s ex’or was paid under a judgment recovered by him against Taylor and M’Clanahan as surviving executors of Boyd. There is no evidence, and not even a charge of collusion in the procuring of that judgment. Wilson’s account had been regular^' settled by a commissioner of the Court of Pro-ba.t; *and the items of that account are proved by that taken in this case to be correct. It is the mode of stating the account and the charge of interest which produces the difference in the result. And we would be glad to know what authority Taylor and M’Clanahan had to control the commissioner of the Court of Probat in settling the principles on which the account was to be taken.
    4. The Court below directed the administration accounts to be closed in 1822, because the last paj'ment for the lots sold fell due in that year. But the claim of Smith was then outstanding, and we submit the administration account should not have been closed until that was paid.
    5. As to the real estate the act of February 16th, 1825, in relation to the commissions of executors and administrators, does not apply to it; and commissions thereon should have been allowed. Moreover Wilson died within two years after the passage of the act; and actus dei nemeni facit injuriam.
    Brockenbrough, for the appellees.
    1.To shew the principle on which co-trustees will be held liable for each other, I refer to Chambers v. Minchin, 7 Vez. R. 186; Shipbrook v. Hinchinbrook, 11 Vez. R. 252; Hinchinbrook v. Shipbrook, 16 Id. 480; Underwood v. Stevens, 1 Meriv. R. 712; Brice v. Stokes, 11 Vez. R. 318; Bone v. Cooke, 24 haw Bib. 142; 2 Story’s Fqu. 718; Oliver v. Court & als., 8 Price’s Fxch. R. 127; Monell v. Monell, 5 John. Ch. R. 283. From these cases it will be seen that where by an act or agreement of a co-executor or trustee money gets into the hands of the other they are both liable. Here, the executors unite in the sale and the conveyance, and then by agreement among them, Wilson receives the whole proceeds of sale; and therefore upon the principle above stated, they are all liable.
    *But upon the principle admitted on the other side Taylor is liable; for there has been gross negligence on his part in the management of this estate. In a .trust which he undertook, in which infants were interested, he puts the whole fund into the hands of his cotrustee. He permits that cotrustee to retain it for years, without an attempt to have it applied to the purposes of its creation; but stands by, and sees the slaves which had been set apart by his testator for his infant children, subjected to the discharge of those very debts for which the fund in the hands of Wilson was provided. And not yet aroused to attend to the duties of the office he had assumed, he permits the executor of Wilson to recover a judgment against him, and sees the slaves of these infants applied to its discharge, whilst the account settled by Wilson’s ex’or shewed upon its face, that instead of being a creditor, Wilson was a large debtor to the estate of Boyd.
    2. It was proper to close the administration account in 1822. There were two debts paid after that time, but they were not paid out of the fund in the hands of the executor, but by the sale of slaves in the hands of the widow of Boyd; and these debts therefore afford no reason for postponing the close of the administration account. Garrett v. Carr, 3 Leigh 407; Handly v. Snodgrass, 9 Leigh 484.
    3. The question of the commissions is settled by the act, Sup. Rev. Code, ch. 158, § 8, p. 217; and Wood’s ex’or v. Garnett, 6 Leigh 27l. But it is said these parties are trustees and that the act does not apply to them. Trustees stricti juris are not entitled to commissions, and their conduct in the management of the trust confided to them forbids that they should receive them.
    
      
      
        Note by the reporter— During the July and October terms of the Court, there were never more than four Judges on the bench. -Judge Daniel was elected to supply the vacancy occasioned by the death of Judge Stanakd, in December, and took his seat in the Court at the commencement of the January term 1847.
    
    
      
      He had been counsel in the cause.
    
    
      
      Executors Selling Real Estate Act as Trustees. — In Mosby v. Mosby, 9 Gratt. 612, it is said: “There is nothing in Jones v. Hobson, 2 Rand. 488, nor in Boyd v. Boyd, 3 Gratt. 113, which can affect this case, in my view of it; for, according to that view, it is a matter of indifference whether the land be regarded as a testamentary or as a trust subject; or whether the sheriff, in relation thereto, be regarded as an administrator with the will annexed, or as a trustee. In either case the obligors in the bond are liable. See Douglass v. Stumps, 5 Leigh 392.”
    
    
      
      Executors — Accounts—Settlement of — Forfeiture of Commissions. — The principal case is cited in Southall v. Taylor. 14 Gratt. 285; Strother v. Hull, 23 Gratt. 670. and Whitehead v. Whitehead, 85 Va. 879, 9 S. E. Rep. 10. See foot-note to Turner v. Tnrner, 1 Gratt. 11; Morris v. Morris, 4 Gratt. 295, and mono-graphic note oil “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Co-administrators-Joint Bond — Sureties.—In Morrow Y. Peyton, 8 Leigh 54, it was held that where two administrators executed a joint administration bond each is to be regarded as the surety for the other, and if one commits a devastavit the other is chargeable for his act as surety.
      In Caskie v. Harrison, 76 Va. 93, it is said: “The doctrine laid down in that case (Morrow v. Peyton, 8 Leigh 54) has been again and again recognized by this court. Boyd v. Boyd, 3 Gratt. 112; Cox v. Thomas, 9 Gratt. 319.” The principal case Is also cited for this point in Peale v. Hickle, 9 Gratt. 444; Sands v. Durham, 99 Va. 267, 38 S. E. Rep. 145. See mono-graphic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   ALLFN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as by the will of James Boyd, deceased, the executors were directed, after the *personal assets appropriated to the payment of debts should be exhausted, to sell as much of his lands as would be sufficient to discharge the residue of his debts; and as it appears from the accounts taken in this case, that before any sale of the real estate was made, such personal assets had been applied to the payment of the debts, that the estate was largely in arrear to the principal acting executor, Thomas Wilson, for advances made by him, and that there were still outstanding unsatisfied debts against the estate, it was proper according to the terms of the will to make sale of a portion of the lands; and the trustees Taylor and M’Clanahan were guilty of no violation of the trust confided to them in uniting in a sale rendered necessary-by the condition of the estate, and required by the terms of the will.

The Court is further of opinion, that in this transaction the executors acted as trustees, and as such can be liable only for their respective receipts, unless some circumstances of fraud, or of gross neglect amounting to fraud, appeared in the case. And where, as in this case, the sale was made, and was necessary, to accomplish the purposes of the trust, the proof of such fraud should be distinct and conclusive to charge one trustee for the receipts of another.

The Court is further of opinion, that in this case there is no ground for the imputation of any fraud to either of the trustees, Taylor or M’Clanahan, in acquiescing1 in the payment of the proceeds arising from the sale of the land to their co-trustee, Thomas Wilson; and much less in their omission to call upon him to pay . over such funds to them; if indeed it be competent for one trustee, upon a suggestion of the misapplication of funds by a cotrustee, which were properly in the hands of such cotrustee, to assert any such claim; a point not necessary to decide in this case.

So far from being chargeable with fraud, it was under the circumstances peculiarly proper in the trustees, *Taylor and M’Clanahan, to leave the receipt and disbursement of the proceeds of the land to their cotrustee, Thomas Wilson. He had been the principal acting executor, and as such had promptly disbursed all the personal assets which came1 to his hands, and was largely in advance to the estate. He was personally interested ás a creditor of the estate in the collection of the money arising from the sale of the lands; and from the previous course of administration best acquainted with the condition of the estate. His character was fair, and his fortune apparently ample; and there is nothing to she^y that either Taylor or M’Clanahan knew or had cause to suspect that he had not faithfully applied the funds which came to his hands, except the balance ascertained to be due from his estate, upon the settlement made by his executor with the commissioner of the County Court.

The Court is therefore of opinion, that so much of said decree as charges the representatives of Taylor with any moneys received by Wilson on account of the lands sold was erroneous.

The Court is further of opinion, that so much of said decree as charges the executors, Wilson and Taylor, with a devastavit, on account of the supposed sacrifice of the slaves at the sale made by the deputy marshal or sheriff in Buchanan, is also erroneous. As to Taylor, because if his cotrustee Wilson, then had funds arising from the sales of the land in his hands, his failure to apply them to the discharge of the execution, was no default in Taylor; nor could it prevent a creditor from levying upon and selling the assets of the estate; and erroneous as to Wilson because the securities in his executorial bond were not responsible for his acts as trustee. They were bound for the application of the assets to the payment of the debts, and they were so applied. The failure of the trustee to relieve the assets by the application of the funds in his hands, was a breach of duty as trustee, but not a devastavit as executor.

*The Court is further of opinion, that there was nothing in the circumstances attending the sale which would justify a speculative charge against the defendants, either as executors or trustees; as the property seems to have been publicly and fairly sold, under an execution properly levied thereon.

The Court is further of opinion, there was error .in so much of said decree as charges the said Taylor’s representatives with the sum of 792 dollars, with interest from 14th August 1832, till paid, on account of the sale of slaves, to satisfy the judgment rendered in favour of Thomas Wilson’s ex’or against the surviving executors of said Boyd. There is no suggestion that said judgment was collusively obtained, or that the surviving executors knew or suspected that they were entitled to a greater credit than the balance appearing to be due from said Wilson’s estate, upon the settlement made by his executor, of the transactions of said Thomas Wilson, as executor of said James Boyd. And although upon a restatement of the accounts, upon different principles from those adopted by the commissioner of the County Court, it appears the said Thomas Wilson would have been in arrear as trustee, and should have applied the true balance in his hands, to the payment of Smith’s judgment, his failure so to do was a breach of trust for which he was personally responsible, but not responsible as executor, so as to render his securities, including his coexecutors, liable on the official bond as for a devastavit. So that in no aspect could such charge be made against said Taylor solely, as by the, decree was done, or jointly with the other obligors in the official bond.

The Court is further of opinion, that there is error in so much of said decree as disallows the executor of Thomas Wilson commissions on the assets of the personal estate administered by said Thomas Wilson; although no actual settlement was returned within two *years and six months after the passage of the act of February 16, 1825. As it appears the executor died within less than two years after the passage of the law, the omission of his representative to procure a settlement within the time limited, should not deprive his estate of a valid claim, according to the principles established in the case of Turner v. Turner, 1 Gratt. 11. But commission was properly disallowed to said Wilson upon the trust fund, as he was guilty of a gross breach of trust in not applying the funds in his hands to the payment of the debts, and so subjecting the estate to great loss.

The Court is further of opinion, that there was error in disallowing to the representatives of Taylor his commission on the money received and disbursed by him as trustee; the case of a trustee not being embraced by the terms of the law, and there being no such violation of his duty as trustee in the application of the funds received from the sales of the land, as should be visited with the loss of commissions. But commissions on the personal assets administered by him were properly disallowed, as he failed to have a settlement of his exec-utorial accounts made out and returned within the time prescribed by law.

The Court is further of opinion, there was error in so much of said decree as directed the administration account to be closed,- and the account settled on the principles of ordinary debtor and creditor, before the debts outstanding- had been ascertained to be due from the estate: and that the period at which the judgment was rendered in favour of Smith against the executors, was tiie'proper period at which the administration account should have been closed.

The Court is further of opinion, there is no error in so much of said decree as overrules or sustains other exceptions not conflicting with the principles hereinbefore declared.

*It is therefore adjudged, ordered and decreed, that so much of said decree as is hereinbefore declared to be erroneous, be reversed and annulled, and that the appellants recover of the appellees their costs by them expended in the prosecution of their appeal here.

And this cause is remanded, with instructions to recommit the accounts to a commissioner, to restate, audit, and settle them according to the principles aforesaid; and with directions to settle the accounts of the executors separately, so far as respects their administration of the personal estate, excluding therefrom all items of charge growing out of the land fund. So that, if upon such settlement of their accounts of their administration of the personal assets any balance should be ascertained to be due from them, or either of them, in their character of executors, a decree may be pronounced against them or their representatives, and their coexecutors and securities in the joint official bond. And also that he state an account with each executor as trustee, in respect to the proceeds arising from the sale of the land; so that if upon such settlement, a balance should be ascertained to be in the hands of either of the said trustees, a decree may be pronounced against such trustee or the representatives of such as are dead, for the amount so ascertained to be due by such trustee individually.  