
    Daniel McLure and others vs. George Steele and others.
    
      Administration — Intestates’ Estates — Advancement—Accouni of Administrator — Investment—Confederate Bonds.
    
    Grandchildren, whose father died in the lifetime of his father, represent their father in the distribution of the grandfather’s estate, and must account for ail advancements which the father would have been liable to account for if he had survived.
    In reference to advancements, the rights and liabilities of distributees are fixed at the deatli of the intestate; and no subsequent loss of tire property, as by emancipation, can affect those rights and liabilities.
    
      Semble, that an administrator is not chargeable with the sale-bill merely because he so charged himself in his returns to the ordinary. The error can be corrected when he accounts in equity; and the proper mode of making up the accounts is to charge him from time to time as he makes the collections on the securities taken at the sale! Investments in Confederate bonds made in 1863, if otherwise proper, must be allowed.
    A. rvas administrator of the estates of J., R., and W., and as administrator of R. and W. was entitled in equal moieties to the estate of J. In March, 1863, having a large sum of money of the estate of J , he made investments in funds which afterwards became worthless, and credited himself as administrator of W., with four thousand dollars as an investment for that estate. On taking his accounts, it appeared that W.’s estate was .not entitled, at that time, to so large a sum from J.’s estate: Held, that the account must be taken by crediting A., in the first instance, with the whole investment as for J.’s estate, and then carrying to W.’s estate only so much as it was entitled to at the time.
    BEFORE LESESNE, OH., AT YORK, JUNE, 1866.
    The decree of bis Honor, the Chancellor, is as follows:
    Lesesne, Ch.' William McLure died in the year 1859, intestate, leaving, as his heirs and distributees, six children, to wit, Jane, Bobert E., Catharine, (wife of James Galloway,) Margaret, (wife of William T. Bobison,) Caroline, (wife of James McKnight,) and Araminthia, (wife of Joseph Feemster,) and four grandchildren, (issue of a deceased son, James,) to wit, Daniel, Julia, Emma, and Catharine. George Steele administered on-the intestate’s estate, and the bill is filed by the grandchildren against the administrator and children and the husbands of the married daughters for an account, distribution and partition of the estate, real and personal, of the intestate. The cause was referred to tbe Commissioner at June Term, 1861, and now comes up on bis report, plaintiffs’ exceptions thereto, and his report on said exceptions, overruling the same. The defendant, George Steele, is also administrator of the estates of John and Robert MeLure, two brothers of the intestate, William MeLure. The questious to be decided are set forth in tbe exceptions, and will be taken up in their order.
    1. John MeLure died, unmarried and without issue, in the year 1848, leaving a nuncupative will, whereby he gave to William MeLure a plantation, on which William MeLure then resided, and to Robert MeLure, for life, all the rest of his property. Robert administered on bis estate, (no executor having been named in the will,) took possession of the personal estate, and filed an inventory and appraisement of the same, but did nothing more. Robert died in the year 1859, (a few months after the death of William,) leaving as bis heirs and distributees bis nephews and nieces, the defendants ; and the defendant, Steele, administered on his estate, and at the same time administered, de bonis non, on the estate of John. There being no disposition by John McLure’s will of tbe remainder in the property given for life to Robert, the same was intestate property; and the administrator, Steele, accordingly included all the personal property, so circumstanced, in the inventory of his estate. Among said personal property was a negress named Rose, and her children. The plaintiffs’ claim that the said slaves, or the proceeds of the sale thereof, should be administered as belonging entirely to the estate of their grandfather, William McLure. They allege that Rose was purchased by him many years ago, and loaned to his mother, who then resided, and continued to reside until her death, with her son John. That he always claimed her and her increase as his property during John’s life, and soon after John’s death was about to institute legal proceedings against Robert, John’s administrator, to establish his claim, when a parol agreement was entered into between them, whereby it was arranged that Robert should have a life-estate in said slaves, with remainder to William absolutely. Robert McLure had put these negroes in his inventory of the estate of John, and had possession of them as long as he lived The report finds that the negroes in question belonged -to John, and were properly treated as part of his estate; and in making up the accounts of the several estates, William and Robert being the distributees of John, the Commissioner credits one-half of the proceeds of the sale of the negroes to the estate of the one, and the other half to the estate of the other. The Court concurs in the conclusion of the Commissioner, although it does not appreciate the importance of one of the reasons on which he relies, namely, a supposed acquiescence by William in the provisions of John’s will. But the will does not mention these negroes as constituting part of his estate. And I do not think, therefore, that William’s course necessarily implied an acknowledgment of that fact. But I have carefully examined the testimony, and there is, in my judgment, an entire failure of proof to sustain plaintiffs’ allegations.
    The fact of possession in John at the time of his death, and for many years before, is prima facie evidence of property. There is no pretence of proof that William had purchased Rose. The evidence is not uniform, that he claimed her as his property before John’s death, or even afterwards; and the reason assigned for their being in John’s possession having ceased with their mother’s life, and John being an unmarried man, and in better circumstances than himself, his suffering the woman, and especially her children, to continue in John’s service some eighteen years after the mother’s death, and then in Robert’s, as long as he lived, is not consistent with the claim now set up. There is no evidence whatever of the alleged agreement between Robert and William. Tlie exception is overruled, and tbe report confirmed in tbis particular.
    In this first exception, it is also objected that the Commissioner transcended his province in passing upon the question of ownership. The decision of the Court is based upon the testimony accompanying the report, and tbe objection, for that reason, is, in this case, without significance. But, besides that tbe order of reference, made on motion of tbe plaintiffs’ solicitor, directed the Commissioner to “ report any special matter touching tbe issues made by the pleadings, as to whom the negroes and other property belonged, of which the said Robert McLure died possessed,” &c., it was necessary in taking the account, which is also ordered, of the estates of John, William, and Robert, to decide to which of them the proceeds of sale of these negroes should be credited. The Court will here adopt, the words of Chancellor Wardlaw, in the case of Allen vs. Richardson, (9 Rich. Eq_. 55,) “ Where a question of law” {a fortiori, of fact,) “underlies the conclusions the Commissioner is required to report to the Court, it is liis duty, and one exercised in almost every ease, to determine the question, subject of course to review by the Court.” These remarks also apply to similar objections contained in the second,and third exceptions.
    2. More than twenty years before the death of William McLure, his mother-in-law gave .him a negress called Judy, retaining a child of hers named Bill, then two or three years old. Judy very naturally “ made a fuss ” about such cruel separation, and the old lady then said: “ Here, take this child along -with you, I allow him for Robert,” (meaning William McLure’s son, Robert E., one of the defendants in the cause, then an infant of tender years.) The child Bill was accordingly carried away with his mother, and was at William McLure’s residence, working for .him when he became old enough, until the death of the latter in 1859. When the inventory and appraisement of William McLure’s estate was made, Robert E. claimed Bill as his property, and his brothers and sisters contended that he constituted part of the estate of their father. Said negro was not put in the inventory, and Robert E. McLure made an arrangement or compromise with his brothers and sisters, (five in number,) whereby; for the consideration of one hundred dollars, each of them executed a release to him. He also agreed to indemnify the administrator against the claim of the plaintiffs; and, in his answer, offered to settle with the plaintiffs -on the same terms, provided the offer should be accepted at once. The testimony is that Bill would have brought one thousand dollars, if he had been sold when the estate of W illiam McLure was sold. Robert E. McLure lived with his father until he attained manhood, and elsewhere, from time to time, after that, as his business made it necessary or convenient; but it does not appear that he ever kept house during his father’s life. Bill was in the possession of Robert E. McLure from the death of William until his emancipation in.1865. The report finds with hesitancy that Bill was the property of Robert E. McLure at his father’s death. The Court considers the gift to Robert F. McLuré as having been perfect,.and that his father became his trustee. The onus, therefore, rests on the plaintiffs, and it is necessary for them to show that after Robert E. McLure came of age, either he conveyed the' negro to his father, or his father acquired a,title by adverse possession. There is no evidence whatever of a conveyance by Robert F. McLure, or even that the father ever claimed this negro as his property. And not only no facts establishing adverse possession by the father, but no evidence that sufficient time elapsed between the majority of the son and the death of the father to create a title by possession. The exception is overruled, and the report confirmed in this particular.
    3. William McLure gave a negro child, Caesar, to his (deceased) son, James, (plaintiffs’ father,) and the Commissioner has ascertained the value of the negro at the time of William’s death, with reference to his age and condition at the date of the gift, to be six hundred dollars, and has thrown the same into hotch-pot, and charged it against plaintiffs in adjudging their share of William’s estate. It is not disputed that the gift was complete. It is indeed established by plaintiffs’ witnesses, Mrs. Gillespie and Mrs. Miller. But it is urged that plaintiffs claim directly from their grandfather, William, who outlived their father, and are not chargeable with any advancement made to the latter in his lifetime. This is contrary to the plain provisions of the statute (5 Stat. 163, § 3,) and the exception is overruled, and the report confirmed in this particular.
    4. The fourth exception is in these words: “ Because the Commissioner has allowed the administrator of William McLure credit in his accounts for the sum of four thousand dollars, as invested in Confederate bonds, when there was no evidence of such investment, or at the date of said bonds said administrator had any sum whatever in his hands which by law he was authorized so to invest, instead of applying the same in satisfaction of the debts then unpaid, amounting to over three thousand dollars, or paying over the same to distributees.”
    The Commissioner has not decided the question raised in this exception, but only reported the facts and the evidence. Plaintiff's charge that the investments under consideration were made with Steele’s own money. If this be true, they must be struck out of his account; though it is not perceived how that would benefit the estates, seeing the effect would be to make the administrator chargeable with that amount of Confederate treasury notes, which, like the bonds, are valueless. The administrator, in his sworn account, affirms that these investments were made for the estate, and with its money; and Mr. John A. Brown testifies that he procured Confederate States treasury bonds at Bicbmond for the administrator, with money furnished by him, and which he (the administrator) mentioned at the time to belong to the estate, and to be for an investment for the same. The witness very naturally was unable to state the amount of money furnished by him, or the number or dates of the bonds. The bonds themselves were produced before the Commissioner, and at the hearing, but, being payable to bearer, they contained no intrinsic evidence on the question. It is difficult to conceive how the administrator could have made out a stronger prima facie case, as it was not the usage for the treasurer to give bills of parcels; and in the great rush for bonds at that time, it would not have been practicable, and would doubtless have been refused. It therefore rests on the plaintiffs to establish their charge. These investments purport to have been made, March 16, 1863, and to have been partly in eight per cent, bonds, dated May 1, 1862, and partly in seven per cent, bonds, dated March 2, 1863 — two thousand five hundred dollars of the former, and one thousand five hundred dollars of the latter. It is said that at those dates, respectively, the administrator had not so much money in hands for the estate; but supposing the fact to be so, it-does not reach the question. The bonds were printed; and those of the same denomination carry interest from the same day, and bear the same date; and if at the time of issuing them, any of the coupons appeared to be ovei'-due, they were cancelled, or cut off". Without affirming that it would be conclusive, it is at least incumbent on the plaintiffs to show that there was not funds in hand when the investments were made, March 16th, 1863.
    The Commissioner has exhibited the administrator’s accounts made out in two ways. In the first he charges him with the amount of the “sale-bill,” or account sales, as of the day the purchaser’s notes became payable, (in accordance with a bad practice which prevails generally in this State, and will be noticed more fully hereafter,) and credits himself from time to time with his disbursements. .The effect of this is generally to make the administrator apparently largely indebted to the estate, until, upon final account rendered, he shows the amount of assets uncollected, and takes credit for it. The accounts rendered by this administrator to the ordinary were made out after that fashion. In the second, which was made up lately, and, it may be presumed, under advice of counsel, he charges himself only with the sums actually received. . According to the latter mode of stating the account, there was not any balance in the administrator’s hands when these bonds were purchased; but according to the other mode — the one, as remarked, which was pursued in all the returns to the ordinary — there was at that time a balance of more than fourteen thousand dollars. It is true, there were then unsatisfied claims against the estate to a considerable amount, but a large payment was made on them the same day. The residue of these claims is still unpaid; and it does not appear that the creditors were willing to receive Confederate treasury notes, then greatly depreciated. The ■ Court is of opinion that plaintiffs have failed to make good their charge against the administrator, and that the investments must be allowed as proper credits in his account, and it is so adjudged.
    5. In his first return to the ordinary, the administrator, as before remarked, charged himself with the whole amount of the sale-bill, as of the day when the notes of the purchaser were payable, although many of them are still in his hands unpaid, and some are said to have become valueless by the results of the war. An administrator is chargeable only with moneys actually received, or which, with diligence, might have been received, and the accounts have been restated on that basis. Charging himself indiscreetly, does not fasten on him a liability which the law does not impose; and errors in an account may be corrected at any time while it is unclosed, provided no one suffer injustice thereby. It is only when an administrator fails to render any account, and it has to be made up for him, that he is properly chargeable with the sale-bill. Allusion has been made to the common practice of executors and administrators charging themselves in this manner in their first returns, and discharging themselves in the final returns, to the extent of the notes which may not have been collected. This is contrary to the truth, and wrong; and the Court avails itself of this occasion to say that the- account should be opened and kept in this simple manner :
    
      Dr. The estate of A. B. in ace. with 0. D., exr. or admr. Gr. On the Cr. side enter the items of money actually received, and on the Dr. side -those of moneys paid out, under their several dates; at the end of the year charge commissions on the Dr. side, strike the balance, and carry it forward to the next year’s account. In this exception the plaintiffs insist that the administrator shall remain charged with the whole sale-bill, not because of want of diligence in collecting all of it, but merely for the reason that he erroneously so charged himself. The exception is overruled.
    6. It is not clear to me that Mr. Steele was interested in establishing an interest in the negroes in Eobert MeLure, in contravention of the paramount claim made by some of William McLure’s distributees in behalf of his estate. At any rate, his testimony is hardly pointed at all to that question; and the Court is abundantly satisfied, from other testimony in the cause, that the negroes belonged to John MeLure; at his death, became the property of Eobert for life; and, on his death, were divisible equally between his estate and William’s. The exception is overruled.
    7. This exception is kindred to the sixth, and is overruled for the same reasons.
    8. Besides that, according to the testimony, it was agreed “that the administrator of William MeLure should be credited for the three fi.fa's of Thomas Davis,” the Commissioner’s reasons for overruling this exception arc conclusive, and his report on the exceptions is sustained in this particular.
    It is ordered and decreed that it be referred to the Commissioner to state the administrator’s account according to the views herein expressed, and to report any special matter; and that the parties, or any of them, have leave to apply at the foot of this decree for any orders that may speed the cause.
    The complainants appealed on the following grounds :
    1. Because the Chancellor erred in allowing the administrator of Wm. MeLure credit in his accounts for the sum of four thousand dollars, claimed to have been invested in Confederate bonds — no such investment being authorized by the terms of the Act of 1861; and said administrator, as manifestly appears from his statement filed of collections made and credits taken, in his returns to the ordinary, at no time had any such sum for investment; and such assets as he had in hand should have been applied in payment of the debts, or paid over to the distributees.
    2. Because the Chancellor erred in decreeing that the negroes, Eose and her children, were not the property of William McLure; inasmuch as Eobert McLure, to the sheriff and others, disclaimed having any other interest than a mere life-estate, and William McLure, together with the distributees of Eobert, claimed that said negroes belonged absolutely to him at Eobert’s death.
    3. Because the complainants are not properly chargeable with any sum, as an advancement for negro Caesar, since the emancipation of slaves.
    4. Because the administrator should have been charged with the notes mentioned in Exhibit N of Commissioner’s Eeport, no cause being shown why they were not collected, or any effort made to do so.
    Smith, for appellants.
    
      Williams, contra.
   The opinion of the Court was delivered by

Inglis, A. J.

This Court concurs in the conclusion attained by the Commissioner, and affirmed by the Chancellor, that upon the evidence, the negroes, Eose, and her descendants must be held to have been the property of John McLure, and that at his death, they passed under the provisions of,his will to his brother Eobert for the term of his life, and there being therein no further disposition of them, the unbequeathed reversion was in John’s personal representative, aDd upon Eobert’s death, was to be distributed as- intestate property between tbe personal representatives of William and of Robert respectively in equal shares. The reasons assigned by the Chancellor for his judgment in this particular are satisfactory to this Court, and it is not deemed necessary therefore, to add anything to what he has said.

The fact that the negro Caesar, was given by William McLure to his son James, is not disputed. James after the date of the gift, died in the lifetime of his father, and his children the present plaintiffs, are therefore, it is said, claiming directly from their grandfather, and as heirs and distributees, under the statute, to him. But according to the express terms of the statute they take by representation; stand in the place of their father, and “ take the share to which he would have been entitled, had he survived the ancestor,” William, (A. A. 1791, § 1, par. 255, Stat. 162,) and they must take it as he would have taken it. As fhus representing him, they have an election to come in and participate in the distribution of their grandfather’s estate, or to stand out at their pleasure. (Hamer vs. Hamer, 4 Strob. 124.) But if they elect to come in, the requirement of the statute is positive. No Court has any power to relieve them from this obligation ; it was fastened upon their father when the gift was made, and the subsequent loss of the property could not discharge it. The case presented does not call for more than this. It is said in McCaw vs. Blewitt, (2 McC. Ch. 90). By hotch-pot is meant, that each child is to draw at the death of the parent an equal proportion.” (See Ison vs. Ison, 5 Rich. 15.) And in Manning vs. Manning, (12 Rich. Eq. 428,) this Court said: “The period for fixing the rights of the parties is the death of the decedent.” In the final adjustment of the distribution other questions may arise. It is not intended here to conclude them. The judgment of the Chancellor on the point made in the third ground of appeal is affirmed.

The defendant, Steele, must, of course, account for all the assets of each of the estates which he undertook to administer. If he converted the specific assets or any of them into securities, he must account for the proceeds of such securities as he realized them by collections. Such as having failed to collect, he still holds, he has a right to turn over to the distributees in his own discharge, (if they insist upon present distribution,) if he can justify his failure to collect them, by showing reasons for retaining them in specie, sufficient in law for this purpose. Eor loss resulting from any want on his part, of reasonable care and diligence in taking these securities originally, or letting them lie inactive subsequently, he is of course, responsible. But this question made in ihe fourth ground of appeal, has not yet been concluded by any judgment in the case. On the contrary the Commissioner says in his report: “ He ” (the administrator) “ should proceed with all due diligence, to collect the outstanding debts due to the said estates, and satisfy the existing demands against the same.” When he shall have completed his administration to the extent of paying all demands of creditors so far as the assets will extend, and the residue is ready for distribution, the question of his ultimate liability for any of these securities then remaining uncollected, will perhaps arise for final adjudication. The claim made by the plaintiffs on the circuit, seems to have been that the administrator should be charged with the whole sale-bill, merely for the reason that he had according to a very common error, so charged himself in his returns, and not , that the uncollected • securities taken at the sale, as otherwise forming part of the assets, should be charged against him, because of want of proper care and diligence in taking or collecting them. The Chancellor properly disallowed the claim as made. That which is now preferred in this fourth ground of appeal, stands open for further adjustment.

• The account of the administration of the defendant, George Steele, made up by the Commissioner, and contained in the brief, very clearly shows that, prior to the 1st April, 1863, his collections in money from the assets proper of the estate of William McLure were very small, and wholly inadequate for the payment of debts; so much so that, for this purpose, it was necessary to transfer moneys from his collections on account of John McLure’s estate, to one-half of which, in any event of the then impending controversy, William McLure’s estate would be entitled. It is quite manifest, therefore, that the administrator did not, at any time during the month of March, 1863, have funds of William McLure’s estate proper, for investment in Confederate bonds or otherwise. It - is equally clear, however, from these accounts, that prior to the 1st April, 1863, the defendant, George Steele, who was also administrator of the estate of John McLure, had made large collections in money from the assets of that estate, amounting in all to something more than $11,000. A large part, if not the whole of these collections, were the proceeds of the sale of Rose and her descendants. The great controversy of the suit then pending, and not until now finally adjudicated, was, whether the slaves were the separate property of William McLure’s estate, or were the estate of John McLure, to only one-half of which William’s estate was entitled. The answer of the defendant, Steele, is not before this Court, but it appears from the testimony, that during the lifetime of William and Robert, he, as the friend and creditor of both, advised them that in his opinion,, the estate of each would, after Robert’s death, be entitled to one-half of these slaves. The existence of this controversy was a sufficient reason why the administrator, Steele, should retain the moneys collected for John McLure’s estate, undistributed, or at least, one-half of them. No question has been made touching the administrator’s care and diligence in collecting the sale notes and other asssets of John McLure’s estate, when he did and in the currency in which they were paid. Having certainly more than $5,500, of the money so collected in his hands, which he could not safely apply in a course of administration, it was his duty to invest such otherwise idle money, and the particular form of investment in Confederate bonds, was in conformity with his duty, as has been now repeatedly held by this Court. The testimony is quite satisfactory that such investment, of $5,500 in all, was in fact made, “ on account of the estates of William and Robert,” but there is no testimony proving what proportion of this sum was invested for the separate estate of each. An investment of the funds of John McLure’s estate would in effect be an investment for the several estates of William and Robert, in some then unascertained proportion, in any event of the litigation,' if there was any estate of John other than the slaves in dispute. That the defendant, Steele, had in his hands for investment of the moneys of John McLure’s estate, during the month of March, 1863, so much as $5,500; that he invested that sum of such moneys in Confederate bonds during that month, and that under the circumstances this was a proper investment, this Court is well satisfied. But the very cause which detained this fund undistributed in the administrator’s hands, and constituted the occasion for its investment, forbade his undertaking in advance virtually to decide the controversy, by carrying to the credit of, and investing for William McLure’s estate, a larger share than one-half of such moneys. As the event has proved that only one-half of those moneys belonged to AYilliam’s estate, as the case then stood he could not in a due course of administration have transferred more than one-half to that estate. It is difficult to understand why, entertaining the opinion which he did, he would have done so. If, therefore, he did what he only ought to have done, or could have done, the figures demonstrate that he had not at any time during March, 1863, in hand for William's estate, including its half of John’s moneys theretofore collected, for investment, more than $1,800 or $1,900. He could not therefore have invested $4,000 of the moneys of William's estate in Confederate bonds in March, 1863.

An account of the defendant, Steele’s, administration, of John McLure’s estate, should have been made up by the Commissioner, and in that account the defendant should have had credit for the whole investment of $5,500 in Confederate bonds in March, 1863, and that account should have been carried on to the closing of the controversy between the two estates of William and Robert, by the present judgment of this Court, against the exclusive claim of these plaintiffs, on behalf of William’s estate, to the whole proceeds of Rose and her descendents, and the balance found in the administrator’s hands upon the closing of that account should be divided in equal shares between the two estates of William and Robert. The accounts of the administrator of each of these latter estates, limited to the proper assets belonging to it, (independent of John’s estate,) and the payments on its account should also be made up to the same time. In this way the whole will be properly adjusted according to the rights of the parties.

It is ordered that the Commissioner restate the accounts in conformity -with this opinion. With this modification, the circuit decree is affirmed.

Dunkin, C. J., and W ardlaw, A. J., concurred.

Decree modified.  