
    Sarah M. De Treville v. Richard and Edmond Ellis.
    Tbe committee of a lunatic is chargeable for a loss of the rents and profits sustained by his letting out the lands and slaves of the lunatic, without security, to a party who proves to Joe insolvent, unless it appear, that the party was solvent, or in good credit, at the time of his contract with the committee ; and the burden of proof of such matter of discharge is on the committee.
    The rule, that the committee cannot make leases of the real estate of a lunatic, operates no further than to prevent his binding the estate after the determination of his trust; and letting the lands from year to year is no violation of the. rule. oí. diet, per Johnson, J.
    This was a bill for partition of tbe real and personal estate of a deceased lunatic, and for an account from tbe defendants, who bad been his committee. On taking tbe account tbe complainant insisted on charging the defendants with the sum of $1147.50, and interest, for the rent of land, and wages of slaves, of the lunatic, which had been hired by the defendants to William Pope, for the year 1823. The defendants produced a judgment obtained by them against Pope for this debt in 1824, and a Ji.fa. thereon returned nulla bona. The charge was disallowed by the commissioner, who reported, that, in his opinion, the loss was occassioned by Pope’s insolvency, and should be borne generally by the parties interested in the estate; the affairs of which were in great confusion when committed to the defendants, who appeared to have acted for the best. The complainant excepted to the report, and the case was heard upon the exceptions, at Coosawhatchie, in February, 1829, before De Saussure, Chancellor, who overruled the exceptions, and made a decree for the defendants. The complainant now moved to reverse the decree.
    De TreviMíE, for the motion.
    The report and decree, in effect, discharge the committee from all responsibility for the management of the estate committed to them. It is proved that they hired the land and negroes to Pope, for the year 1823 ; and it is held that they are discharged by shewing that Pope was insolvent in 1824. But this is not sufficient. Where trustees act with good faith, and have exercised due diligence they will be protected ; but they are bound to shew that they have done so, and that the loss has arisen from misfortune, and not from negligence. ' Taveau v. Ball, i M’C. Ch. 464. The presumption is always against the trustee, unless it is evident, from the nature of the loss, that it was occasioned by causes against which he could not guard. If Pope was insolvent in 1824, the presumption is, that he was so in 1823. The fact indeed was notorious, and might have been proved ; but the onus probandi was on the defendants. They have offered not a tittle of proof, that Pope was solvent when they hired the lands and negroes to him, or that he was thought to be so by any body. They have not proved that they made any inquiry into his circumstances. They required no security from him, which they were bound to have done under any circumstances. Drayton v. Drayton, 1 Desaus. 566. Finally they neglected the obvious remedy of a distress, and permitted the crop to be removed from the land, without even a demand for the rent.
    
      But there is one other view of the case still stronger. The defendants had no authority to rent the land. Knipe v. Palmer, 2 Wils. 130, 1 Fonbl. c. 2. s. 2. note (o). The Court therefore can regard Pope in no other light than as the agent of the defendants for the cultivation of the land ; and they are responsible for the value of the crop made by him. Wright v. Wright, 2 M’C. Ch. 199.
    R. B. Smith, contra.
    
    Wheie executors, or other trustees, intend fairly to discharge their duty, they are never held liable on slight grounds. Belchier v. Parsons, Ambl. 219, Powell v. Evans, 5 Ves. 843. 2 Mad. Ch. 134. And it is a mistake to say, that the presumption is against the trustee. . Fraud is never presumed; and a trustee is only answerable for fraud, or such gross negligence as is equal to fraud. 2 Mad. Ch. 143. But were there such a presumption, it has in this case been rebutted. The defendants .were appointed in February, 1823, and were consequently obliged to make arrangements for the crop of that year in great haste. They had no time for inquiry; and in addition to this the affairs of the estate were in great confusion. The commissioner from a view of all circumstances was of opinion that they had acted for the best; and his judgment upon this question of fact, sanctioned as it is by the decree of the Chancellor, is conclusive.
    It is urged that the defendants ought to have distrained; but they could not distrain until the rent was due, and then there was nothing to distrain. When the rent became due, they lost no time in demanding the rent, and suing the debtor to insolvency. They could not do more.
    None of the cases cited affect the present decree. Taveau v. Ball, 1 M’C. Ch. 464, is a case for the defendants ; and Wright v. Wright, 2 Id. 199, is so entirely different in its circumstances, as to have no application. Drayton v. Drayton, 1 Desaus. 566, is more in point; but that was a case of sale, besides which, it was one where executors had by their advertisement required security, and then neglected, to take it.
    With regard to Knipe v. Palmer, 2 Wils. 130, and the passage cited from Fonblanque, it will be obvious on referring to them, that the rule there laid down, amounts to no more than this, that the committee cannot bind the lunatic by making leases. It is laid down that the committee possesses every power necessary to the ProPer management of the estate ; and hiring lands and negroes from year to year, is in this country, absolutely essential in many eases to rendering them productive. Without it, they would frequently be merely a burden.
    
      
      
         Judge Nutt was unable, from indisposition, to take his seat on the bench at any time during the present, or the succeeding term, and died towards the close of the latter. His place was occupied during a part of the present term' by Judge Richakdson, and during the whole of the succeeding term by Judges Evans, and O’Neall, alternately. Vide 1 Bailey’s .Law Reports, 373.
    
   Johnson, J.

The object of this bill was, in part, to obtain an account from the defendants of the rents and profits of the estate of the lunatic committed to their management; but the report of the commissioner, on which the Circuit Court decree is founded, is so barren of facts, that the Court has felt at some loss to see the application of the questions that have been raised here, or to form any judgment as to the merits of the case. The report consists rather of a deduction from facts, than of facts themselves. It states, for instance, that at the time the defendants took possession of the estate it was in great confusion ; and that in renting the lands, and hiring the negroes, the committee acted for the best: and if this be true, it may be that the loss ought to be borne by the estate; for the rule very clearly is, that the defendants ought not to be charged, unless they have been guilty of some degree of negligence. But I cannot consent to lend my sanction to a judgment, without being able to see that it is founded in light; and more especially where, as in this case, there is great reason to suspect that too much indulgence has been shown to the defendants, and that in carrying into effect a rule intended for the protection of trustees, and others acting in a representative character, injustice may have been done to the complainant. Thus it is said, that the estate was in confusion, and that the defendants in hiring the lands and negroes to Pope acted for the best: but the object of appointing a committee was to reduce the estate to order; and the act of letting the lands and negroes, was a single act, in which I can conceive of no insurmountable difficulty : and if Pope was, as the evidence seems to indicate, insolvent at the time, it would be difficult to persuade any one, that trusting him for that amount was acting for the best. It may be, that the facts justify the conclusion at which the commissioner has arrived ; but they do not apppear in his report, and the inference necessarily is, that they do not exist. The decree of the Circuit Court must therefore be reversed, and the case referred back to the commissioner to ascertain the facts.

It does not appear from the report of the commissioner that any evidence was offered as to the solvency, or insolvency of Pope, at the time that the defendants trusted him ; and one of the questions here raised is,-whether the proof on the subject ought to have come from the complainant, or the defendants. The fact being ascertained, that the defendants were in possession of the lunatic’s estate, prima fade they were bound to account for the rents and profits, or to show some reason why they should not. If under the best management the estate had proved unproductive, that would have been sufficient; or, as more directly applicable to the case, if they had shewn that they had trusted it to one in good credit, but who ultimately proved insolvent, that might have proved sufficient. But I take it as an universal rule, that where the presumption of liability attaches, it is incumbent on him to be charged to show matters of excuse. He who alleges the affirmative of any proposition is bound to prove it, for the obvious reason, that the mode of proof is more simple and direct; and this, although it may imply a negative, instances of which aré given in the hooks, more especially, where, from the circumstances, he who seeks to support his cause must be supposed to be cognizant of it. 1 Stark Ev. 376, 7, 8, Dickson v. Evans, 6 T. R. 57. The possession of the lunatic’s estate per se, rendered the defendants liable to account for rents and profits. If thatfact, and nothing else, had been proved, there cannot be a doubt, that they would have been hound to pay the value; for indulgent as the law is to persons acting in a fiduciary character, it is not charitable enough to presume that they have properly disposed of a fund, without any account from them. They allege the affirmative, then, when they offer matter by way of excuse ; and to whom can the circumstances be so well known as to those who were the principal actors % Surely not the lunatic, nor those who claim under him, and who, at the time, may neither have had, nor felt ah^r interest in it. On every principle then, the defendants were bound to furnish the proofs.

In the present state of the case, the Court have not thought proper to decide upon the question raised, whether the defendants had, or had not, the right to lease the lands of the lunatic; hut I will observe, passingly, that I incline to think, that upon investigating that doctrine, it will be found, that the only restraint imposed upon the committee -operates to prevent their binding the lunatic a^ter his restoration, and that letting out the land from year to year, is no violation of the rule. Without this power it is not difficult to imagine a case, in which they would not only be very unproductive, hut a charge : and I can conceive of no motives of public policy, which would prohibit it. It is therefore ordered, and decreed, that the decree of the Circuit Court be set aside, and that the case be referred back to the commissioner, to ascertain the facts agreeably to the foregoing rules, and that he report thereon to the Circuit Court.

Colcock, J. concuned.

Richardson, J.

sitting for

Nott, J.

I am of opinion that the case ought to be sent back, although I Jo not wish to express any opinion on the other points.

Decree reversed.

The right of the complainant to partition of the lunatic’s estate depended upon the construction of a limitation over contained in the will of his father, and was settled by the decree on a former appeal in this case. The judgment of the Court on that occasion, and the opinions delivered, in two other cases, involving analogous questions, have been frequently referred to ; and as they have not hitherto been reported, they' are here subjoined.  