
    John J. Martin and others vs. Wiley J. Jefcoat, adm’r of Wm. O. Martin.
    
      Executors and Administrators- — Account—Fraud—Negligence.
    
    Where an administrator neglects, in good faith, to litigate a doubtful claim of his intestate, whereby it is lost to the distributees, he is not liable; to make him liable, fraud or negligence must be shown.
    BEFORE JOHNSTON, OIL, AT LEXINGTON,
    JUNE, 1857.
    Johnston, Ch. This suit is brought on behalf of the children of William 0. Martin, deceased, against the administrator of his estate, for an account. On reference to the commissioner, much testimony has been taken; and he has reported against the complainants’ demands. The case comes lip on complainants’ exceptions to the report of the commissioner.
    The material facts, as shewn by the testimony, are as follows: William 0. Martin died intestate in the year 1839, leaving a widow and six infant children. Shortly after his death, the defendant, Wiley J. Jefcoat, being his wife’s brother, administered on his estate. There were in the possession of William 0. Martin, or of his wife, at the time of his death, three slaves, Esther, Hector and Jack. These slaves had been acquired by Mrs. Martin, in the following manner: In the year 1811, her grand-father, John Hoover, by deed, gave certain slaves, and other property, to his daughter, Jerusha Jefcoat. The deed provided that the property should be delivered to Jerusha Jefcoat “instantly after the death ” of the donor — “to have all the above named property, both real and personal forever. Should my beloved daughter, Jerusha Jef-coat, die before her husband, Elijah Jefcoat, then he is to have all the above named property during his natural life, and at his death, the property above mentioned, both real and personal, the heirs of my beloved daughter, Jerusha Jefcoat, is to have the same, without any manner of condition whatever, forever.” Jerusha Jefcoat died in 1818. Her husband, Elijah Jefcoat, survived her, and is still living. John Hoover died in 1832. Upon Hoover’s death, Elijah Jefcoat took possession of the slaves conveyed by the deed, and soon afterwards made a partition of them with the aid of neighbors, reserving a share to himself, and delivering six slaves, equal to each other in value, to the six children of himself and his deceased wife, Jerusha. Among these children was Martha, or Patsey, the wife of William 0. Martin, whose marriage had taken place as early as the year 1828. Esther, the slave mentioned above, was delivered to Mrs. Martin, and her husband at this time. Hector and Jack were children afterwards born to Esther.
    It was proved to have been the general belief in the neighborhood, that the slaves thus delivered to Mrs. Martin did not thereby become the property of her husband. He, himself, at various times, disclaimed title in himself, and represented the slaves as being under the exclusive control of his wife. After his death, Elijah Jefcoat interposed,» and forbid that they should be included in the inventory of the estate, setting up a claim in himself for the benefit of his daughter. The Ordinary of Lexington District, Mr. Fort, advised the administrator not to interfere with them, but to leave them in the possession of the widow, and communicated to him the fact, which he proved on his examination, that he (jhe Ordinary) had heard the opinion expressed by three eminent counsel, that the slaves, under the deed from John Hoover, belonged to Elijah Jefcoat for life.
    The property left by William 0. Martin, exclusive of these slaves, was very inconsiderable. It was absorbed in the payment of a small amount of debts. But the creditors acquiesced in the proceedings of the administrator, and none of them have asked any relief
    Under -the advice which he received from the Ordinary, the defendant did not include the slaves in his inventory; left them in the possession of the widow, and closed his administration.
    Since the death of Martin, the woman Esther has had two more children, named Dave and Clarinda. Mrs. Patsey Martin, the widow, was married, in 1844, to Gabriel Sturkie. Before this marriage, she had sold the boy Jack to Benjamin Jefcoat. Since the marriage, Gabriel Sturkie has resided with his wife and her children at the place previously occupied by her. In 1847, Mrs. Sturkie sold the boy, Hector, to Hilliard Oliver, who paid for him $400 in cash and $110 in provisions. In 1853, Oliver sold Hector to a speculator in Hamburg,' having become alarmed about the title. The other slaves continued in the service of Mrs. Sturkie and her family until 1853. At that time, the defendant, Wiley J. Jefcoat, became alarmed, in consequence of a decree pronounced by Chancellor Wardlaw, in the case of Richard Sturkie and wife 
      vs. Elijah Jefcoat and others, which was supposed to decide, that under the deed from John Hoover, Elijah Jefcoat took an absolute estate in the slaves thereby conveyed, and that upon the partition made by Elijah Jefcoat among his children, the husbands of his daughters became entitled absolutely by virtue of their marital rights. The defendant had before this, in the year 1850, purchased from the administrator of Benjamin Jfefcoat, the slave, Jack, previously sold by Mrs. Martin, , as mentioned above. He now proceeded to take possession \ of the slaves, Esther, Dave and Clarinda, and having obtained \ from the Ordinary an order of sale, including Jack; as well as \the three just named, he sold them all, becoming himself the purchaser of Jack and Dave (by transfer of the bid of another party); Esther and Clarinda were purchased by Wiley S. Jef-coat, to whom the defendant gave a warranty of title. The defendant charged himself with the amount of these sales in his return to the Ordinary.
    But after these transactions, Gabriel Sturkie brought actions of trover against the defendant, Wiley J. Jefcoat, for the boy, Dave; and against Wiley S. Jefcoat, for Esther and Clarinda; and the defendant, in the suit was vouched by Wiley J. Jef-coat, to defend the action brought against him. -And in these actions of trover, Gabriel Sturkie recovered verdicts for the full value of these slaves, which the defendant in this suit has paid.
    Upon the termination of this litigation in the court of law, the complainants have filed their bill, to make the defendant accountable to the extent of their distributive shares (to wit: two-thirds) of the value of the five slaves, Esther, Jack, Dave, Hector and Clarinda, claimed to have been a part of the estate of William 0. Martin, together with hire or interest.
    The deed from Hoover presents a question whether, notwithstanding the absolute terms in which the estate is conveyed to Jerusha Jefcoat, a life estate in Elijah Jefcoat does not arise by way of a springing use. I pass by this enquiry, for the present, because with regard to the greater part of the matter in controversy, I think that the complainants are not entitled to recover, even if it be conceded that Elijah Jefcoat, by virtue of his marital rights, took an absolute estate,-as contended on behalf of the complainants. •
    It is the duty of executors and administrators to manage the trusts committed to them prudently, diligently and faithfully. It is essential that they be permitted to exercise a just and reasonable discretion with regard to doubtful claims. They are not bound to litigate every possible question of right; nor, if upon the best consideration and advice, they deem it inexpedient to incur the risks of litigation, are they to be held liable to make good every loss that may possibly ensue, and be placed in the perilous position of gratuitous ensurers. If such were the rigor of the law, the estates of persons deceased would be 'commonly derelict, and widows and orphans would be deprived of the aid and protection which the law aims to bestow upon them.
    Tried by this rule, the defendant is not found to have; offended. He appears to have endeavored to discharge his duty honestly, faithfully, and under advice which he was bound to respect. The intestate himself had disclaimed title in the slaves. Can the administrator be blamed for acquiescing in that disclaimer ? The children of the intestate derive their rights from, him, and cannot complain of that act as an injury, which he himself by his own conduct had authorized. It would have been wrong for the defendant to do otherwise than as he did, in leaving the possession of the slaves to the widow. Her possession, if her children were entitled to a share with her as tenants in common, was their possession and for their benefit. And on her second marriage, whatever possession her husband, Gabriel Sturkie, acquired, remained subject to the same trust. Up to the time, therefore, when the defendant proceeded to take possession of the slaves and sell them, he is not chargeable with any negligence or misconduct. And although it is unfortunate for him that he took possession of the slaves under the apprehension, excited by the decree touching the construction of Hoover’s deed, yet his conduct clearly shews his honest intentions. The strongest proof he could give of such, was his voluntarily surrendering the slave, Jack, previously purchased by him, under the supposition that he was obtaining a good title, and charging himself with the value of Jack, as well as of the other slaves.
    In the subsequent proceedings of the defendant there is nothing to be blamed. There is no evidence whatever to shew any want of diligence, or of earnest effort, in defending '.the actions of Trover. The defendant was defeated by a title against which he could not successfully contend. It may easily be conceived that the plaintiff, Gabriel Sturkie, brought his actions relying on the title under the deed of John Hoover, but on the trial defeated the defendant by evidence of adverse possession. After the defendant has, under compulsion of the law, paid these verdicts to Gabriel Sturkie, can the complainants, with any justice, call upon the defendant to pay them over again the same amount which has been wrested from him when he was struggling to the utmost to save it for them ? I think not. With regard to the slaves, Dave, (now in the defendant’s possession,) and Esther and Clarinda, (now, according to the testimony, in the possession of Mrs. Wiley S. Jefcoat, or of William Knotts,) and also with regard to Hector, (as to which last there is no evidence whatever that the defendant had anything to do with his sale, or removal from the State,) I agree with the commissioner in holding that the defendant is under no liability to account to the complainants, and to that extent the exceptions to the Commissioner’s report are overruled. That report is very full, and can be referred to for any particulars in the history of this case not set forth in this decree.
    But with regard to the slave, Jack, now in the possession of the defendant, Wiley J. Jefcoat, I am not prepared to give any decisive judgment, because the proper parties are not before me who are entitled to be heard before a final decree is pronounced concerning him.
    It is, therefore, ordered and decreed, that so much of the bill in this case as seeks an account from Wiley J. Jefcoat for the slaves Esther, Dave, Hector, and Clarinda, be dismissed, and that the bill be retained for further adjudication- in regard to the slave, Jack; and that as to him,the complainants have leave to amend their bill, by making Gabriel Sturkie and his wife, Martha, defendants thereto, with all proper and necessary charges to assert the right of complainants to distributive shares of said slave, Jack, as tenants in common with the said Gabriel Sturkie and wife.
    The plaintiffs also have leave, if so advised, to seek an account from Sturkie and wife of the money received by them, respectively, on the judgments which have been mentioned, and for the proceeds of any of the slaves sold by them, or either of thém.
    The complainants appealed on the grounds:
    1. Because the slaves in question were the absolute property of the intestate, William 0. Martin, and being in his possession at the time of his death, the defendant, as his administrator, was bound to take possession of them and administer them, and is liable to account to the complainants, the children of the intestate, for two-thirds of their values and hire, and interest thereon.
    2. Because the defendant, in permitting Gabriel Sturkie to dispose of the slave Hector, without any effort on his part to prevent it, or to recover the said slave, and to retain possession of the slaves, Esther, Dave, and Clarinda, until he acquired a title to them under the statute of limitations, was guilty of such gross negligence, as should render him liable to the complainants out of his own estate.
    3. Because the complainants’ exceptions to the commissioners report should have been sustained upon the grounds therein stated.
    
      4. Because the defendant sold the slaves, Esther, Clarinda, Dave, and Jack, under an order of the Ordinary procured by him, without any necessity or sufficient reason, there being no debts against the intestate requiring it, whereby the complainants were deprived of their remedy against the specific property.
    
      Fair, Boozer, for appellants.
    
      Bauskett, Gregg, contra.
   The opinion of the' Court, by

Dargan, Ch.

On the death of Wm. 0. Martin, in November, 1839, he had in his possession three slaves — Esther, Hector, and Jack. Two children of Esther — Dave and Clarinda— were born after Martin’s death. Besides these negroes, the estate of the deceased was very small, not more than $66. Wiley J. Jefcoat became the administrator, and duly administered the small fund which came into his hands, and there is no controversy about that.

The litigation relates to the negroes. The administrator, in the honest and confident belief that the negroes did not belong to his intestate, did not reduce them to his possession, or set up any claim to them. The negroes were, undoubtedly, the property of Wm. 0. Martin. It will be appropriate, on this occasion, briefly to show in what manner, or by what title, Martin became possessed of them. He got them by his wife, Patsey Martin, who received them from her father, Elijah Jef-coat. The latter derived them under the deed of one Hoover, who, reserving to himself a life estate, conveyed the ancestors of the negroes in question to his daughter Jerusha, the wife of the said Elijah Jefcoat, in terms which he supposed would give his daughter a life estate, and at her death a life estate to Elijah Jefcoat, if he was the survivor, with a remainder, at his death, to the children of his daughter Jerusha, of whom Patsey, the wife of the intestate, was ,one. This was the disposition which the donor intended, and thought he had accomplished. But the deed was couched in language that, after the termination of the donors life estate, would give Jerusha Jefcoat an absolute estate, upon which the marital rights of her husband, Elijah Jefcoat, attached; investing him with an absolute estate. But the parties all thought differently, and acted in conformity with their construction. Elijah Jefcoat himself, believing that he had only a life estate in the negroes, and that after his death, his children by his first wife, Jerusha, would be entitled to the negroes, as purchasers, under the deed of Hoover, made a compromise with them, by which he / was to retain three, and the rest were to be divided, presently, among the children of his wife, Jerusha. It was in this way that the intestate, in right of his wife, became possessed of the negroes in controversy, they being her share in the said division. This was in the year 1832. The intestate did not claim any right to the negroes. He said he had nothing to do with them. There was a great deal of evidence on this point, which impresses my mind with the conviction that William Martin, in his life time, and up to the day of his death, honestly believed that he had no right or title to the negroes, and disclaimed any such right. At the appraisement of the estate, old Mr. Elijah Jefcoat appeared and set up a claim to the negroes as his own, during his life, and after his death for his daughter, Mrs. Martin. It was also in proof, that it was understood not only in the family, but in the whole neighborhood, that these negroes were not Martin’s, but that they belonged to his wife; with much more evidence to the same effect. Upon no proper construction of the deed of Hoover, could such an opinion be supported, particularly after the division. But there was much in the terms of Hoover’s deed, calculated to mislead the common, uninstructed rnind, and by which one unlearned in the law might arrive at anything but the right construction. He consulted with the Ordinary, and was instructed by him to leave the negroes where' he found them, and he told the administrator that he had consulted with three of the most eminent men then at the bar, who gave it as their opinion that, under the Hoover deed, Elijah Jefcoat had a life estate in the negroes. Thus advised and instructed, the administrator forbore to include the negroes in his returns, or to set up any claim to them. He left the negroes where he found them, that is, in the possession of the widow of the intestate, who, in 1844, married one Gabriel Sturkie.

Jerusha Sturkie, one of the children of Jerusha Hoover, who had intermarried with Richard Sturkie, for some reason, was left out in the division of 1832. In 1850 Elijah Jefcoat \ was about to emigrate to Alabama, Richard Sturkie and wife, '.believing that they had an interest in the negroes by way of 'remainder under the deed of Hoover, to fall in on the death of Elijah Jefcoat, filed against him a bill, in the nature of a bill quia timet, asking for security that the negroes should not be removed, and for the usual remedy in such cases. This case, in 1852, came on to be heard before Chancellor Wardlaw, who decided “that upon the death of Hoover,” (who had reserved to himself a life-estate in the negroes,) “ the estate became absolute in Elijah Jefcoat.” Then, for the first time, those parties became enlightened as to their true rights and interests under this deed and the partition. Then it occurred to the administrator that if Elijah Jefcoat was the absolute owner of the negroes, the division which he made in 1832 was valid, and could not be gainsaid.

The administrator now endeavored to retrieve his former error. He acted vigorously. He seized the negroes, that up to that time were in the possession of Gabriel Sturkie, retarded them to the Ordinary; procured from that officer an order for their sale, and did actually sell them, charging himself in his accounts with the proceeds of the sale and returning the same to the Ordinary. In this sale he also included one of the negroes, which he had purchased at a sale made by the administrator of Benjamin Jefcoat, which shews in a strong point of view the integrity of his heart. At the sale, he bought one of the negroes himself and sold two to Wiley S. Jefcoat, for fair prices, with which he charged himself, as has been stated. But his awakened energy was too late. Sturkie brought actions at law for the negroes which had been taken from him, and recovered verdicts for their full value. These verdicts with the costs of suit have been paid by the administrator.

This suit has been instituted by the children of defendants’ intestate, or by some of them for an account of W. 0. Martin’s estate, and the object is to charge the administrator for the value of the negroes, which belonged to the estate of his intestate, and have been lost in the manner stated. The question for the Court is, whether under the circumstances he should be held accountable.

The negroes,, as I have already said, were unquestionably the property of the intestate. The error of the defendant was in leaving them in the possession of Sturkie so long, that he acquired a title to them by adverse possession and the statute of limitations.

A great deal of discretion must necessarily be vested in executors and administrators, as to embarking in litigation on behalf of the estates they represent. Certainly, no legal obligation or rule obliges them to litigate for doubtful claims.' If they litigate in good faith, they will be reimbursed for their expenses. If they do not litigate, in an attempt to make them liable for non-action, the question will be whether they acted in good faith. “An executor or administrator is not bound in all cases, and under all circumstances to litigate his testator’s or intestate’s title to goods found in his possession at the time of his death, but which are claimed by other persons. He is entitled to exerc.ise his discretion on the question of property, and if he surrender the goods, he cannot be made liable for the value, except upon proof of negligence or fraud.” Chap-pell vs. Brown, 1 Bail. L. 528.

The error ,of this administrator consisted in leaving the negroes in the possession of Sturkie until he acquired a title by the statute of limitations. After he discovered the right of his intestate he acted with a great degree of energy. For his original error I think he is excusable. He did not take into his possession property, the title to which his intestate disclaimed. This disclaimer was in consonance with the general opinion of the neighborhood. He sought counsel from a quarter on which he might well suppose he could confidently rely. He was instructed by the Ordinary to let the negroes alone. The Ordinary professed to have founded his opinion upon the advice of three eminent men of the law. Indeed, • if the rule which I have cited is not to be reversed, and the \ administrator is not to be made liable in all cases where the right to property in his intestate’s possession at his death, is contested and he fails to bring or stand a suit, the defendant is to be excused. Not to hold him excusable would be to deny ' him any discretion. He committed an honest mistake. He acted throughout in good faith. He vigorously endeavored to retrieve his error, but failed. And this was done at a sacrifice of his own interest.

It is ordered and decreed, that the circuit decree be affirmed and the appeal be dismissed.

Dtjnkin & Wakdlaw, CC., concurred.

Appeal dismissed.  