
    Michael Bailey et al. vs. Richard Dilworth, Judge of Probate of Monroe County, use of John B. Hunter et al.
    Executors and administrators are bound to the exercise of such prudence and caution in the administration, as a judicious man, looting' to his own interests, would exercise in regard to his own affairs.
    They may compound debts, or enter into arbitrations, and these acts will be upheld, if they are fair, beneficial to the estate, and free from fraud, negligence and misconduct.
    If, therefore, executors or administrators collect debts in bank paper not - strictly at par, when the best interests of the estate require it, and when nothing better can be done, their conduct will be sustained; but in such case it will be their duty to convert the funds so received into something less perishable, with as little delay as possible.
    Where a decree of the probate court is rendered, confirming and allowing the final account of an executor and administrator, by which the executor is brought into debt to the estate in a s pecified sum, in dollars, without distinction of currency, constitutional currency will be thereby intended; and in an action on such executor’s or administrator’s bond to recover the amount so decreed, it will be competent for the executor or administrator to show that in good faith he collected depreciated paper of local state banks, when it was the very best he could do for the estate; and that the balance of his final account against him was for this depreciated paper; the decree of the probate court being for so much money, was final and conclusive between the parties until reversed, and could not thus incidentally be rendered of no value by the circuit court.
    
      Where an administrator has collected the debts due his intestate, in depreciated bank notes, he should report fully his proceedings to the probate court, that, that court may make such allowances to him as the circumstances warrant, and may render a decree accordingly; if he omit to do so, and allow a decree to be rendered against him in the probate court for the full amount of the money thus received, it will be too late for him afterwards to attempt a defence thereto, when sued on his bond for the money thus decreed against him.
    In October, 1840, the probate court confirmed the final account of an executor, by which he appeared tó be in debt to the estate in the sum of $4,000 ; and, in January, 1841, the court entered a decree against him to pay the money, upon which the executor paid to the clerk of the probate court the amount of the decree in the notes of different banks much depre. dated; the executor being afterwards sued on his bond for the amount of this decree, offered to prove this payment to the probate clerk ; held, that being made to an officer who had no authority to receive it, it could have no influence on the case.
    In error from the circuit court of Monroe county; Hon Francis M. Rogers, judge.
    Richard Dilworth, judge of the probate court of Monroe county, for the use of John B. Hunter, guardian of the person and estate, real and personal, of Joseph John Kirk, infant son of John Kirk, sued Michael Bailey, Elisha D. Prewett and Kirk Prewett, upon their bond for the faithful discharge by Bailey of his duties as executor of the last will and testament of John Kirk. The principal breach assigned was the non-payment by Bailey of the distributive share of Joseph John Kirk, in the sum of $3,889.75, decreed by the probate court, at its January term, 1841, to be due by the executor. The plea of payment and other pleas were filed, but it was agreed between counsel, that under the plea of payment any legal matter of defence might be given in evidence as if specially pleaded.
    A trial was had and verdict rendered for the plaintiff for $2,411. The defendants moved for a new trial, which was refused, and they embodied the evidence in a bill of exceptions.
    On the trial, the plaintiff read to the jury the final account and settlement of Bailey, as executor, made with the probate court at its October term, 1840, which showed a balance against the executor of $4,283.42, and concluded in this way: “The above settlement shows a final settlement of the administration of the estate of John Kirk, deceased, by M. Bailey, Esq., made 7th October, 1840. M. Bailey, EPr.
    
    
      ¡State of Mississippi, Monroe county; Probate Court, October term, 1840.
    Examined, ordered to be recorded and filed.
    R. DilwoRth, Judge of Probates.”
    The plaintiff then read the final decree of the probate court at its January term, 1841, as follows, viz.: “ This day again came Michael Bailey, executor of the estate of John Kirk, deceased, and John B. Hunter, and Jane Amanda, his wife, late Jane Amanda Kirk, now wife of said John B. Hunter, and William Smith, the guardian of Joseph John Kirk, infant son and only child of the deceased John Kirk, whereupon, after hearing of the parties, the court is of opinion that the said Michael Bailey, as executor, holds three thousand eight hundred and eighty-eight dollars and seventy cents, after the payment of all the debts, besides some uncollected debts, which were returned desperate and due the estate of John Kirk, which will more fully appear by reference to the settlement made at the last term of this court, and the vouchers then filed.
    “It is therefore adjudged, ordered and decreed, that the said Michael Bailey, executor as aforesaid, pay to the said John B. Hunter and wife, one moiety of the said sum of three thousand eight hundred and eighty-eight dollars and seventy cents, and the other moiety to the said William Smith, the.guardian of the said infant distributee. Whereupon the said Michael Bailey, Esq. as aforesaid, paid into the hands of the clerk the sum of three thousand eight hundred and eighty-eight dollars and seventy cents, in the bank bills of the Mississippi Union Bank, and in the bills of the Aberdeen and Pontotock Railroad and Banking Company, and twenty dollars in Brandon and real estate, in satisfaction of the above decree; which the said John B. Hunter and wife, and William Smith, guardian as aforesaid, refused to receive, and thereupon the said Michael Bailey offered to prove that he had received and collected said bank bills in the course of the administration of said estate; which was objected to and sustained by the court, to which opinion of the court in sustaining said objection, and in refusing to hear said testimony, the said Michael Bailey excepts.” This decree was duly certified.
    The defendant objected to the reading of this evidence, but the objection was overruled.
    The defendants, by their counsel, then introduced the Hon. Samuel J. Gholson as a witness, by whom they offered to prove that he had acted as the counsel of the defendant, Michael Bailey, to instruct him in the proper discharge of his duties as administrator as aforesaid, and the defendants also offered to prove by him, that during the administration of Kirk’s estate from the general embarrassed condition of the whole country, and the civil officers everywhere yielding to the public feeling, and refusing to sell property for anything but the currency furnished by the banks of the state of Mississippi, he, as defendant’s counsel, advised him to take in payment of the debts due to the estate, the notes of the Aberdeen and Pontotock Railroad and Banking Company, and the notes of the Mississippi Union Bank, which were at that time at a discount of from four to five per cent, below specie; that the best interests of the estate demanded that he should take that course, it being the best that could be done at the time, it being utterly impossible to collect specie. The defendant further offered to prove by Gholson, that the amount of the decree had been collected of persons in failing circumstances, upon debts created by Kirk in his lifetime, but the court refused to allow the testimony to be introduced on the ground that the questions had been already litigated and determined in the probate court.
    The defendants offered to prove similar facts by George Wightman, but was not allowed to, and also offered to read to the jury the notes of the different banks offered in payment by the defendants ; this was also refused.
    The plaintiff asked the court to instruct the jury that if they believed from the evidence, that the probate court made a decree, and ordered the sum of money therein to be paid to the plaintiff, they must find for him, unless they believe from the evidence the money has been paid. This was given.
    
      The defendants asked the court to instruct the jury, that unless the plaintiff has shown an order or decree of the probate court, directing the bond of the executor to be put in suit, they must find for the defendants as by way of nonsuit. This was refused.
    Exceptions being signed, this writ of error is prosecuted.
    
      Reuben Davis, for plaintiffs in error,
    and Harris and Harrison, for defendant in error, made the following agreement in this court:
    “ It is intended to submit this case upon the single point, as to whether the defence set up in the court below, as detailed in the testimony of Samuel J. Ghdlson and George Wightman, and excluded by the court, was a bar to the action; and whether the action of the court of probates upon the subject was exclusive, or final and conclusive until reversed by due course of law. It is the wish of both parties to have the case settled upon the merits, and to avoid all matters of delay.”
    
      Harris and Harrison, for defendant in error.
    The court below properly excluded the testimony of Gholson and Wightman.
    1. Because the action of the probate court was final and conclusive between the parties, until reversed by due course of law. 1 How. (Mi.) Rep. 450; 5 Ibid. 736; 1 S. <fc M. 130.
    2. The circuit court had no jurisdiction over the questions attempted to be raised upon the testimony offered, the jurisdiction of the probate court being exclusive upon all matters confided to it by the constitution.
    3. The facts proposed to be proved constituted no legal or valid defence to the action, and could have been given in evidence under no plea known to the books.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action in the circuit court of Monroe county upon the bond of Bailey, as executor, against him and his sureties. The amount due from him, had been ascertained by a final settlement with the probate court, which had been examined and allowed. This settlement showed him in debt to the estate nearly $>4000, and the indebtedness was stated in general terms, without reference to any particular kind of funds. The probate court made a decree against the executor for the amount ascertained to be due, when Bailey paid the amount to the clerk of the probate court in bills of various banks and banking associations, then much depreciated. These the parties interested refused to receive. The executor then offered to prove that he had collected these bills in the course of administration, but the court rejected the testimony. The final account was received and allowed, at the October term, 1840, of the probate court; and the decree for the payment made at the January term, 1841, when for the first time the attempt was made to pay in depreciated paper.

Upon the trial in the circuit court, the defendant offered to prove that he had collected the debts due to the estate in the currency furnished by the banks of the state — that he had done so by the advice of distinguished counsel — that the debtors were many of them in failing circumstances — that the civil officers of the country refused to sell property for anything but the local currency, and that he received the notes as the best that could be done under the circumstances. This evidence was rejected by the court below, and the illegality of this exclusion is the matter assigned as error.

An executor or administrator represents the deceased. The most exact good faith is required of them, in all their transactions in regard to the estate. They are moreover bound to the exercise of such prudence and caution in the administration, as a judicious man looking to his own interests, would exercise in regard to his own affairs. They may compound debts, or enter into arbitrations, and these acts will be upheld, if they are fair, beneficial to the estate, and free from fraud, negligence or misconduct. Kee’s Executor v. Kee’s Creditors, 2 Grattan’s Rep. 116; 2 Lomax Ex. 291-5; 5 Humph. Rep. 524. They partake of the character of bailees, and their acts in many respects are regarded in the same light. It hence results, that if they collect debts in bank paper not strictly at par, when the best interests of the estate require it, and where nothing better can be done, their conduct will be sustained. But then it would be their duty to convert the funds so received into something less perishable in a reasonable time, and with as little delay as practicable. But while we recognize these rules for the conduct of executors and administrators, we do not think the appellants are in a situation to invoke their aid. The account rendered to the probate court, and which was ratified and confirmed by it, was for dollars in numero, without distinction of currency. The decree rendered by the court was of the same character. There was the place to make this defence.

This court has often decided, that the decrees of the probate court, where it has jurisdiction, are conclusive until reversed. To hold that a decree for dollars, means not constitutional currency, but the depreciated issues of worthless'banks, would virtually set aside this whole doctrine. The consequence would be, that while the circuit court could not directly revise the decree, it might incidentally render it of no value.

Had the account, as exhibited in the probate court, disclosed the true state of facts, that tribunal could have made such allowances to the executor, as the circumstances warranted, and have rendered a decree for what was right. It would have the same powers in this as in other matters of account.

To have suffered the testimony offered to go to the jury, would likewise have been against the rule, which excludes parol evidence to explain records, or other-written instruments.

The payment or offer to pay to the probate clerk, can have no influence in the case, because that officer had no authority to receive the amount.

The judgment is affirmed.  