
    ROBERT FAIRBAIRN against GEORGE F. FISHER.
    The poverty of an executor, which existed at the testator’s death, without mal-administration, or loss, or danger of loss, from misconduct or negligence, will not authorise a Court of Equity to put him under a bond to perform the trust, or, as an alternative, give up the office.
    A misunderstanding between two executors, added to the fact that one is a man of limited means, it not appearing that any detriment had happened to the estate from their disagreement, is no reason why the business should be taken out of their hands, and committed to a receiver.
    It would be improper for a Court of Equity to take part of the estate from one executor and give it to a receiver for him to co-operate with the other executor. A receiver must be of the whole estate.
    Appeal from an interlocutory order of the Court of Equity of Craven County.
    The bill was filed to recover from the executors of Thomas Fairbairn, all the residue of his estate, after paying some pecuniary legacies, which is given to the plaintiff by the will of the said Thomas, and, as incident thereto, to take the property out of the hands of the executors, and put it into those of a receiver. The allegations on which the latter application is based, are :
    1st. That they are both using the means of the estate for their own purposes.
    
      2nd. That an angry hostility has arisen between the two executors, which has resulted, and is likely to result, in detriment to the estate.
    3rd. That the defendant, Fisher, hath not property at all adequate to make good to the estate any amount which he may squander and misapply.
    To show the injury resulting from this dissention of the executors, the bill alleges that the defendant, Fisher, without any pretext or authority in law, seized and caused to be imprisoned, a negro man belonging to the estate, named Daniel, and proceeded to advertise him for sale, whereupon, his co-executor, Williams, filed a bill in the Court of Equity for an injunction to restrain the sale; that by this controversy, the estate was run to costs, and that when it was ended, the estate was subjected to considerable loss, and the plaintiff insists that, as this arose from the dissention of the executors, it affords a ground for taking the administration out of th§ir hands, and he protests that the estate ought not to bear the burden of he expense of this proceeding, but that it should fall upon the executors who caused it; or on one of them.
    With the bill, went out the following order of the Judge of the Court of Equity:
    “ Upon the complainants entering into bond, with surety, satisfactory to the master, in the penal sum of $500, with the usual conditions for injunctions and prosecution bonds, the said clerk and master in Equity, for the county of Craven, will issue writs to restrain the defendants, Williams and Fisher, respectively,, from any further execution of their testator’s will, until they respectively file bonds with snrety, in the master’s office, each in the penal sum of $12,000, with conditions for the performance of any and every decree which may Fe rendered against them, or either of them — either in the progress, or at the final hearing of the cause. In case the said executors neglect, or refuse for twenty days to file such bonds, it is further ordered, that Fred. C. Eoberts, the master, be a receiver of said estate, and that he be charged with the collection and custody of the same, until the further order of the Court of Equity for Craven: And to this end, it is ordered; the said executor or executors, failing or refusing to file the bonds aforesaid, shall, forthwith (at the expiration of said twenty hays,) make surrender, under oath, to said receiver, of the funds, effects and evidences of debt of every description, belonging to their testator’s estate, accompanied by an account.”
    Both'the defendants answered, but as only the case of the defendant, Eisher, is brought up by the appeal, it is necessary to notice his answer alono. He answers and admits that he is not in affluent circumstances, but says he is in good credit as a merchant, and is solvent; that he is in a better condition now than he was when appointed executor; that the office was conferred on him by the testator from the confidence which he reposed in his integrity, and that he has not abused that confidence: that he has not used the money of the estate for his private purposes, except a sum about equal to what his commissions will probably bo; that he has kept a full account of his .administration, and that all the money received by him, has been deposited in the bank of the State, at Newborn, and that he has been prevented, from settling with the plaintiff, because, that he is a stranger, residing in a distant nation of Europe, and has not furnished him with sufficient evidence that he is the individual to whom the legacy is given, and that he has not furnished him with the proper bond to secure him against loss in paying the legacy to him. He answers as to the dissention between him and his co-executor, that it is true an -ill feeling has grown up between them, but that it is not his fault, and he believes that it has grown out of a distrust created in the mind of his co-executor by interested and and designing persons.
    He answers as to the slave, Daniel, that he had been runaway for twelve months; that when the defendant got possession of him, he thought it was the surest, and, probably, the only means of securing the value of him to the estate, to sell him; that the slave was turbulent, and regarded as dangerous in the community, and that the citizens of Newbern objected to his remaining there on account of his dangerous character; that this slave was insolent towards him, and threatened that unless he was permitted to select his owner, he would runaway again; that these were the reasons why he was proceeding to sell him, when he was restrained from doing so by the act of his co-executor, in getting an injunction. He says further, on this point, that the plaintiff sanctioned his course — took the negro out of jail, dismissed the proceedings in Equity, instituted by his, defendant’s, associate, and that this defendant and the plaintiff sold the slave to a trader at a fair price, and they both joined in a bill of sale to-the purchaser. He denies that any detriment has happened to the estate from the disagreement between himself and his co-executor.
    On motion, to dissolve the injunction, and to set aside the order requiring the defendants to enter into bonds, and to have the said bonds delivered to the defendants for cancellation, it was decreed, among other things, that the bond of the defendant, Williams, should be delivered to him; but that, that of the defendant, Fisher,, should be retained; from which defendant Fisher appealed. Other orders were also, made in the cause, from which there was no appeal.
    
      MeRae and Iluldbard, for the plaintiff.
    
      Saugkton and B. F. Moore, for the defendant.
   Burkin, J.

As the defendant appealed only from that part of the. order which refused his motion to deliver up the bond which he had been required to give, and ordered it to be-retained, the Court does not consider any other question that might be made on other parts of the order. On that, the Court is of opioion, there is error. The effect of the order is, to lay the executor under bonds for his administration of the estate, and the performance of the decrees in the cause, as the alternative of having the estate taken out of his hands,- and put into those of a receiver. We think this is not a case for the appointment of a receiver. There does not appear to be any change, for the worse at least, in the property or credit of the executor, since the death of the testator, or even the making of his will. The mere poverty of the. executor, doesmot authorise the Court, against the will of the testator, to remove him by placing a receiver in his place. There must be, in addition, some mal-administration, or some danger of loss from the misconduct or negligence of the executor, for which he will not be able to answer by reason of his insolvency. That seems to be the well-settled rule. Now, the affidavit of the plaintiff, to his bill, is the only evidence to any of those points, and the bill is framed, mostly, upon the information of others, and not upon the personal knowledge of the plaintiff. But, both with respect to the general charge, as to the meanness of the defendant’s circumstances, and the few particular allegagations of negligence or mismanagement, the answer of this defendant is full and precise in the negative. It is clear, that, with regard to the slave, whom the defendant imprisoned for the purpose of selling, and was only restrained from selling, before much expense had been incurred, by the acts of his co-executor, his conduct was that of an honest and careful executor. He did just whathe oughtto have done. ITe denies directly, and positively, having appropriated any of the assets to his own affairs, or to have used, in any wajr, any portion of them, except small sums within the amount of the usual commissions allowed by law to an executor. Even to that extent, the Court does not approve of an executor’s applying the funds for his own benefit. But it is certainly not such a devastavit as authorises an inference, that the estate is in jeopardy, or will not be faithfully administered, and duly accounted for. The answer, indeed, states that most of the funds of the estate, which had been collected, were in deposit in one of the banks in Newbern, where the parties are now residing; so that, if it were not true, it might easily have been sliowm by reference to the bank, and the affidavit of one of its officers. The only pretext for a receiver, as far as the case appears in these proceedings, is the misunderstanding between the two executors. But that is not sufficient of itself, or in connection with the limited circumstances of the defendant, Fisher. It does not appear by the fault of which of them it has arisen. But if it did, it would be a novel proceeding, not to appoint a receiver for the estate, but only for the part of it in the hands of one executor, leaving the other to administer the other part in the name of himself and his co-executor, as has been done here by the consent of the plaintiff, by discharging Williams from the bond, which he gave, by way of superseding the order for a receiver. Considering the bill and answer as affidavits, the Court does not consider any thing in the past course of Eisher, or any hazard to the estate to be justly apprehended for the future, for which a receiver ought to have been appointed, or he put under bond in place of appointing a receiver. Indeed, the very fact that he has been able to give a satisfactory bond, in the heavy penalty of §12.000, to perform the decree, furnishes the strongest evidence that the plaintiff’s apprehensions of his insolvency or suspicions of his integrity, were unfounded.

So much of the decree, as was appealed from, must, therefore, be reversed, and the bond given by the appellant, can-celled or surrendered up to him; which will be certified to the Court of Equity. The appellant is entitled to costs in this Court.

Per Curiam, Order below reversed.  