
    NOVEMBER TERM, 1844.
    Young Berry, Administrator of Thomas Y. Berry, deceased, v. W. B. Parkes, et al.
    Debts due to a decedent are assets, but not to charge the executor or administrator, till he has received the money.
    An executor or administrator may release or compound a debt, and if in so doing he appears to have acted for the benefit of the estate, lie will not be chargeable with it as assets.
    If there be no wilful misconduct or fraud on the part of an executor, he will not be held responsible for loss.
    An administrator compromised a suit, by giving time on the debt claimed, and thereby rendered the debt safe, though previously doubtful. Before the money became due under the compromise, the distributees filed a petition in the Probate Court to render the administrator personally liable, and compel him to pay it over, without waiting till he collected the debt; held, that the administrator was not personally liable.
    In decreeing a distribution at any time previous to the final settlement of the estate, the Probate Court shquld require a refunding bond to be given as a condition precedent to the execution of the decree.
    Error from the Probate Court of Yazoo county.
    The facts are substantially stated in the opinion of the Court.
    
      Charles E. Mount, for plaintiff in error.
    We consider the decree of the Probate Court erroneous.
    1st. In decreeing plaintiff in error to make final settlement.
    2d. In decreeing plaintiff in error to account to defendants in error for their share of the land-note executed in favor of said plaintiff in error by said Douglass.
    3d. In decreeing the administrator to make distribution to the defendants in error, without requiring of them a refunding bond.
    We contend that an administrator is not compellable to make final settlement of his intestate’s estate, until he shall have reduced into possession all the assets of the-estate ; from the derivation of assets, and the signification attached to it in conjunction with distribution, I gather that it must be of a kind fit for distribution, as money or slaves. It is said, “ Debts of all description due to the testator are assets, but not to charge the executor or administrator till he has received the money.” 2 Lomax on Ex’rs and Adm’s, 229, s. 10; Com. Dig. Assets, D. ; JBac. Abr. Ex’rs. H. 2; 9 Leigh, 441. Now as it is shown that the Douglass note, received by the administrator upon a sale of lands belonging to the estate, remains uncollected, and 'among the numerous distributees of the estate is incapable of distribution, from its nature, there can be no final administration decreed unless the .administrator has become chargeable therewith. We think that under no aspect in which this case can be viewed, has the administrator made himself responsible for the Douglass note.
    The material facts of the case as disclosed by the record are, that under an order of the Probate Court of the proper county, a sale of the lands was made on the 3d January, 1837, to one Douglass, who gave his note,'with security, payable 1st January, 1838, and that on the 13th February, 1838, the note was placed in the hands of a competent attorney for collection ; after judgment obtained, an indemnifying bond was given by plaintiff in error to the sheriff, who levied upon negroes which were claimed by Mrs. Bland, and bond was given by claimant, and through press of business the Court did not reach or try the cause at the spring or fall terms in the year 1841. In December, 1841, the attorney, advising that the issue was extremely doubtful, thought it safest to have the judgment already in force well bonded ; upon which was procured a forthcoming bond, with undoubted security, by the administrator agreeing to wait for one half till 1st January, 1843, and the balance 1st January, 1844. Now the earliest time, according to the testimony, that a trial could have been had, was at the spring term, 1842, and then the chance, of success extremely doubtful; but if judgment could then have been had upon the issue for the trial of the right of property in the ne-groes levied upon, the claimant would have had the right to tender a forthcoming bond, which, in the usual and ordinary mode of collection by sheriffs, would have ppstponed the payment-, without the agreement, to the winter or spring of 1843 ; so that, in effect, it results, that the administrator has extended the time of payment bf one half the debt, or Douglass note, ten. or twelve months, with a view effectually to secure the debt to the estate, and to exchange the uncertainty of the law for a certainty.
    1. Executors, administrators and guardians, are regarded generally both at law and in equity as trustees, and the principles governing the latter govern all the former ; hence the plaintiff in error, as administrator of Thomas Y. Berry, is a trustee for the heirs, creditors and distributees, and the Court will do everything it can to protect and assist him. Toller on Executors, 80, note (b) ; 133, note (c) ; Hagthorp v. Hook, 1 Gill & J. 270, 274 ; Ambler, 219 ; 5 Vesey, 843; 1 Madd. Ch. 114. I find in the very excellent treatise of Judge Lomax on Executors and Administrators, recently published, 2 vol. 229, sec. 9, the following ; “ But the better opinion seems to be, that the executor or administrator stands in the condition of a gratuitous bailee, and is not chargeable without some default in him.”
    “Executors and administrators, or trustees acting with good faith and without any wilful default or fraud, will not be responsible Tor losses that may arise.” Thompson v. Brown, 4 Johns. Ch. R. 619, 629. The same principle is fully recognized in Powell v. Evans, 5 Vesey, 839, 843, though there the executor was held liable under circumstances of gross neglect dr crassa negligentia, whereby the debt was lost. Upon' the same principle is the' case Schultz v. Pulver, 11 Wend. 363, which is relied on by counsel for defendants in error, though in that case it does not appear that a loss had accrued, yet-there had been such ci'assa negligentia, that it amounted to a legal loss, as Feltz, the debtor, could plead in bar of a recovery the statute of limitations ; though the case is a hard one, for .the reason in the close of the last paragraph but one, of Senator Tracy’s opinion, yet I cannot but consider the main principle for which I contend ably sustained by the reasoning of Senators Edwards and Tracy, as well as by the decision itself, for it arose and went off on a state of facts and grounds wholly different from this cause, to wit, the neglect of the administrator to sue the debtor, whereby the debt was constructively lost, 3as above stated ; and one of the principal decisions relied on by Mr. Justice Nelson, who delivered the opinion of the majority of the Court, viz., Lawson & Copeland, 2 Bro. C. C. 156, has been overruled and denied to be law in Travers v. Townsend, 1 Molloy, 12 Cond. Eng. Cha. Rep. 244. See also Toller on Executors, marginal page, 427, and note (r), and 426, note (k); 1 Vernon, 474. And it will be perceived in the authorities cited, as well as those hereafter cited,'that an executor or administrator has been only held responsible, where, by his culpable neglect, malajides, wilful default, or fraud, a loss has accrued to the estate.
    But the case of Schultz v. Pulver, ante, which must be regarded as carrying out a principle of extreme rigor and st'rictissimi juris, and also isolated, can certainly have no application here, as the facts are so . entirely different, and the principles upon which the different Courts came to their conclusions are so very dissimilar. The only analogy that can be perceived, is the hardship in each. In the former, however, there was a neglect to sue the debtor for several years, though there were exculpatory circumstances; in the latter, the case at bar, the opinion and decree of the Court was based upon the supposition that an administrator had no right to compound, compromise with, or extend time to a debtor, — which principle is erroneous, as I shall presently show ; again, there has not resulted a loss to the estate by the agreement giving time. We will dismiss the case of Schultz v. Pulver, and should not have attempted to review' it, were it not relied on with so much confidence by opposing counsel as a case in point.
    In Pirn v. Downing & Stalker, 11 Sérg. & Rawle, 71, it is said by Ch. Jus. Tilghman, that “if it be made out to a reasonable probability, that a debt has been lost by the neglect of a guardian, he is responsible, but not otherwise.”
    In Brown v. Campbell, 1 Hopkins’ Rep. (N. Y.) 233, Chancellor Kent says, “ a trustee acting in good faith and making an investment deemed at the time advantageous, shall not be chargeable, although it results in a loss.” The same principle is decided in 4 Johns. Cha. Rep. 281; and also the same principle in 4 Desaus. S. C. Eq. Rep. 207, cited in argument 4 J. C. R. 624. ,
    In Ash v. Ash, 1 Bay, S. C. Rep. 306, 306, 307, it is said, “ If any damage accrues by his default, he is liable.” The converse of the proposition is equally true.
    Let us apply the foregoing principles and cases to the facts in this cause, and it will be perceived, that there being no wilful default, mala.jides, crassa negligentia, or fraud in regard to the collection of the Douglass note by the plaintiff in error, that he must be exonerated from liability here. But the rule seems to go one step further, that only in case of loss of the debt due the estate, by any change or arrangement, can the ■ administrator be chargeable ; and there being no loss in this case, but additional security obtained, surely there can be no principle found to sustain the reason of the decree of the Probate Court, in charging the administrator with the amount of a note, which is not lost, but amply secured. An executor or administrator must be allowed some discretion and latitude, and not be bound by strict technical rules, or the losses of estates would be great; such seems to be the benign policy of our laws', and not the harsh and strict rules which at one time prevailed, but seem to be fast giving way to the more enlightened and intelligent jurisprudence of the present day.
    2. This brings us to the consideration of another branch of the law, under which it is contended the administrator should be held liable. We insist, if an executor or administrator compromise a debt bona fide for the benefit of the estate, he is not thereby personally responsible. Now, it was contended by the counsel for defendants in error, that the bare compromise, or giving time, would personally charge the administrator. But we think the authorities and decisions do not sustain the position taken. It is said by a most respectable writer, upon review of the decisions on this subject, “ If, however, an executor in releasing or compounding a debt, appears to have acted for the benefit of the estate, he will not be chargeable with it as assets.” 2 Lomax on Ex’rs and A'dm’rs, 230, sec. 12 ; Blue v. Marshall, 3 P. Wms. 381 ; Pennington v. Healey, 1 Cr. & Mee. 402. In the following case it is said, “ Although it is generally true, that the executor, who, by taking an inferior security or unreasonably extending time of payments, brings a loss upon his testator’s estate, shall himself be liable; yet there are many objections to applying that principle to this case. The executor who takes charge of the affairs of a man in trade, must necessarily, on the winding up of his affairs, be allowed a reasonable latitude'of discretion ; and where there is manifest fidelity, diligence, and ordinary judgment displayed, the Court will always with much reluctance enforce the rigid rules, which Courts have been obliged., for the protection of estates, to impose upon the conduct of executors.” Hunter v. Bryant, 2 Wheat. Rep. 42. See also Toller, marginal page 429, notes (p), (q), (r), and authorities cited.
    In 1 Chitty’s Gen. Practice, 632, it is said, if an executor compromise and give time and take a new security, and the debt be thereby lost, he must sustain it. So where an executor, to get rid of a bad tenant, released the' rent in arrear and gave the tenant 'money, in order to obtain possession, and if it appear he has acted bona fide for the best, he shall be allowed both. Same page, cited 3 Peere Wms. 381 ; Toller, 429. Now it is said on page 633, if the executor should release a debt or damages, or take a fresh bond or note to himself, that would be deemed an actual receipt, and charge him ; but the Court will perceive this distinction, that “ the debt or damages” were due to the testator in his lifetime, and by so releasing and taking a security to himself, he converts to his own use, or makes it his own ; while the sale of the lands in the present case, was by an order of the Court, since the death of the intestate : and of course the note, with security payable twelve months after date, according to law and the order of Court, is payable to the defendant; and the arrangement made by him' under the circumstances, must be regarded to have been done for the benefit of the estate, unless the contrary appeared.
    This constitutes the important distinction in 5 Price, 419. But if the remarks above cited from page 533, 1 Chitty, Gen. Practice, should be regarded as authority here, we think certainly, and the law bears us out in so saying, that it would be competent for the administrator to exonerate himself, by showing their loss, by accident or insolvency, of the chose in action, or unavoidable delay in collection, which we think the facts of this case sufficiently show.
    But no doubt it will be argued, that the administrator having charged himself, in his interlocutory account, with the sum of $5233.62, it precludes him from denying his responsibilty therefor ■but if the account is evidence against him, the whole must be taken together, and the statement therein contained, that “$5233.62 remain uncollected, and due said estate,” explains and does away the effect of the charge, which, however, is further explained by the fact, that the account appears to have been footed by the clerk of the Court, and the administrator was advised by his attorney that it was proper to charge himself with the whole value of the real and personal estate. It is a rule of law, that where a trustee acts under erroneous advice of counsel, he shall not be .prejudiced thereby : but if I am wrong in this, all interlocutory accounts or decrees, of the Probate Court, may be opened or explained, before final settlement, and any item therein is subject to explanation.
    We cannot perceive, then, upon what defendants in error rest their right to distribution, if our reasoning upon the authorities cited be correct; certainly not upon the score of assets, for it is denied that we have any; not upon the score of giving time to secure a doubtful debt, for the authorities cited certainly show, that an administrator has that power, when done for the benefit of the estate ; and the administrator, being a distributee, interested personally to the amount of one fifth of the proceeds to be realized from the sale of the land, is not to be presumed to be guilty of any fraud or wilful default, where no such charge is {nade in the bill of defendants in error, and the presumption is rebutted by all the circumstances. To compromise a suit for the trial of the negroes levied on, when advised by a competent attorney that the issue was doubtful, from a variety of circumstances, which, if not successful, must have resulted in a claim against an insolvent estate, instead of a judgment well bonded, and secured by giving a little additional time, shows a degree of vigilant and prudent management which must meet the sanction .of this Court; and which course if it had not been pursued, would with more seeming justice have subjected the complainant to the operation of the rule for wilful default, mala fides, and culpable neglect of the interests intrusted to his charge.
    But we will notice another argument urged by counsel for defendants, and dismiss this branch of the case, to wit: u that it was the duty of the administrator to have recovered back the land by as-* serting the statutory mortgage.” We think this is sufficiently an-swere'd by the fact, that the land would not bring more than a third or fóurth of what it sold for to Douglass. It is unusual, and certainly not incumbent upon the administrator to sue for purchase-money, and bring bis bill to foreclose, both at once ; the latter is usually resorted to, upon failure of the former to realize the purchase-money. It is true that you may have your action for the purchase-money, and your bill to foreclose, both pending at the same time ; but the satisfaction of one will suspend the other. But who will say that an executor or administrator is compellable to pursue both remedies, pari passu, or he will be held responsible for neglect ?
    Perhaps if a loss ensues from an extension of time and the agreement entered into, and if the statutory mortgage given by act of 1829 is destroyed, the argument might be urged with more force and correctness.
    But if we are wrong in all our conclusions upon the two errors first above complained of, we are clearly of opinion that upon the third error assigned, the decree must be reversed. In How. & Hutch. Dig. p. 406, sec. 70, the legislature have so plainly required a refunding bond to be given, conditioned to refund, &c., as a condi-tion precedent to a decree for distribution, that we think a decree without such requirement would be manifestly erroneous. But the Hight Court, at its present January session, having given to the act the construction for which we contend, we deem it necessary only to refer to the opinion. The Court say, in the case of Jl. Murdock, ■JLdrn’r v. «á. W. Washburn, et ux., 1 S. & M. 556, “ We have seen that after the expiration of twelve months from the grant of letters of administration, the law permits and makes it incumbent on the Probate Court to compel the distribution of the estate to the persons entitled and praying for same. But for the protection of creditors, as well as the administrator of the estate, it prefixes the condition, that any such distributee shall enter into bond and security, conditioned to refund a due proportion of such distribution to meet any debts of intestate that might subsequently make their appearance, and the costs thereon. ■ The law in no case dispenses with bond of this kind, up to the period of final settlement of the estate ; upon final settlement of an estate, the necessity of such security ceases, and it is no longer required. Neither the administrator nor the distri-butees, nor the Probate Court can be allowed to judge of that necessity or its probability, because the law has assumed to itself to fix a termination of that necessity, and has not stopped short of the final settlement of an estate. . . . Such bond and security being then a prerequisite, a condition precedent to distribution of an estate not finally settled, it must be embraced in a decree of the same.” Here a decree of distribution is ordered without such bond, and is therefore erroneous.
    For all which reasons we think the decree of the Probate Court manifestly erroneous, and respectfully urge its reversal.
    
      R. B. Holt, on the same side.
    The decree of the Probate Court is thought to be erroneous :
    1st. In ordering'the administrator to make a^ final settlement.
    2d. In charging the administrator with the amount of the Douglass note before its collection.
    An administrator cannot be compelled to make a final settlement of his administration until he has collected the. debts due the estate, unless they are in a form which would admit of their distribution among those entitled to share the assets. The Douglass note remains uncollected, and , does not admit of division among the numerous distributees of the estate. There can therefore be no final settlement of the administration until its collection, unless the administrator has in some way made himself chargeable with the amount of it. Has he done so ?
    In the first place we think, that, had not the note been collected, the proceeds would have been held by the administrator m" that capacity, and could not have found a place in his administration account.
    It was given for the purchase-money of land sold by the administrator under an order of the Probate Court, made under the statute, upon a suggestion that it would promote the interest of those entitled, &c. The administrator, in making such sale, must be regarded as a special trustee, and not as administrator. He can be esteemed as receiving and holding as administrator, nothing which he cannot administer, as he is sworn to administer the assets which come to his hands first in payment of debts. In acting under this statute, he is bound to make another and different disposition of the proceeds of the land. The language of the statute is merely descriptive of the persons whose interest should entitle them to obtain the order of sale, and not of the character sustained by them under the appointment. How. & Hutch. 418.
    But if I be wrong in this, the administrator was not chargeable with the amount of this note. A note taken by an administrator on a sale of property is not assets until collected. 3 Munf. 198 ; 4 Desaus. 297 ; 1 Stark. R. 27 ; 2 Cowen, R. 808.
    If the complainants had sought to charge the administrator for having taken insufficient security, they should have charged and proved the fact, which they failed to do. Stakes v. Collins, 4 Desaus. 207 ; 1 Stark. R. 27 ; 1 Desaus. R. 557.
    There was no charge nor proof of such laches in the collection of this note by the administrator as would charge him. He is only chargeable with gross and supine negligence. 1 Vernon, 144 ; l Mad. R. 290 ; 4 Ves. 369 ; 2 Mad. Ch. 119, 128 ; 4 John. Ch. R. 619 ; Bryanv. Mulligan, 2 Hill, (S. Car.) 364.
    The record shows that the administrator enforced the payment of this note with the utmost vigor until the agreement to give time. The execution had been levied on property claimed by a third person, and an issue made up to try the right. Owing to the press of business alone, the Court had failed and refused to dispose of the issue during several successive terms. In this the administrator was guilty of no default. While the execution was thus suspended, in Dec. 1841, the administrator agreed verbally with defendants, that if they would execute a forthcoming or delivery bond, with good sureties') he would indulge them, This agreement to give time was insufficient to charge the administrator. Where an administrator accepts a new security in favor of himself individually, in satisfaction of a demand due the estate, he is chargeable, because the new security is a virtual payment of the old. 2 Wms. on Executors, 1107, 1108 ; Toll, on Ex. 424, title “Devastavit.”
    The execution,of the delivery bond, though perhaps induced by the promise of indulgence, was a righuwhich the defendants in the judgment did not derive under the agreement. They could have given it in defiance of the administrator. Nor did it convert it into a debt due the administrator individually. The statutory judgment was still in favor of the administrator in his fiduciary capacity. The time given was not, unreasonable ; the issue could not possibly have been disposed of until the spring term of 1S42,< nor could it probably have been disposed of until a later period. If determined in the spring of 1842, the money could hot have been collected until the fall- of the same year. By the agreement one half of the debt was to be paid only two or three month’s after. In view of the uncertainty as to whom and how the issue would have been determined, and the more perfect security afforded by the delivery bond, the indulgence given by the administrator must be regarded as reasonable and proper, in every way promotive of the interest of the estate.
    If the agreement to give time did not of itself charge the administrator with the amount of the note, the delay which had elapsed in consequence of that agreement, before the bill was filed in the Probate Court, could not have done so. The suit in which the decree was rendered against the administrator was commenced only a few weeks after the agreement was made, and some months before the earliest time at which the money could have been collected, had no such agreement been entered into. There had then, at the time the bill was filed, occurred no actual delay in consequence of the agreement.
    For these various reasons, it is respectfully urged that the decree of the Probate Court is erroneous, and should be reversed.
    
      Wilkinson and JWiles, for defendants in error.
    It may be that the counsel for the appellant are right in the position they take, that a Court of Probate has not jurisdiction in a cause instituted to compel an administrator who has sold land under an order of the Probate Court, to pay over the proceeds of sale to the persons entitled. Still the conclusion which they would deduce from the admission, is by no means a sequitur. The appellant assented to the consideration and determination of the cause by the Court. He went further ; he first blended his assets as .administrator with his assets of trustee for the sale of the land ; and afterwards, when the Probate Court was asked by the appellees to enforce from him a payment of the amount which was shown to be due by his own account, he does not object by demurrer, plea, or answer, to the Court taking jurisdiction of the cause, but acquiesces in it. It is therefore insisted, that this objection comes too late now. See 2 Caines, Cases in Error, 40, 56, Ludlow v. Simond ; 2 J. C. R. 369, Underhill v. Van Cortlandt.
    
    To the objection, that the decree of the Court have required of the distributees the tender of a refunding bond before they could call for the payment of their shares, we would oppose the same answer. If the bill did not allege it, appellant should have demurred, or have set up the failure of complainant to make such allegation in his answer. Such an objection comes too late at the bearing of the cause.
    But in point of fact, this is no objection. To that part of the decree which requires appellant to pay to the distributees what the land sold for, it,is clearly no objection, as the creditors of the estate could in no event claim any part of this fund after payment of it to the distributees. The Court will observe that there are in Missis-. sippi two statutes authorizing the sale of lands by an administrator'— one of them for the payment of debts of the deceased ; the other, for purposes promotive of the interests of the heirs. In proceedings under the first, a refunding bond may lawfully be required as a condition precedent to the payment of a distributive share ; but in proceedings under the last, it is believed that such a condition cannot be insisted on. Suppose the estate of an intestate not to be reported to the Court as insolvent by the administrator (and such is the case at bar), the realty of the deceased descending to his heirs, can never be subjected to the payment of his debts, and the purchase-money for which it may be sold, under this clause of the statute, can never be applied to the payment of his debts, but by the very words of the act must be paid to the heirs. Where, then, is the right of the administrator to insist, under such circumstances, on a refunding bond ?
    But another objection rrjay present itself; part of this decree is for money received by the administrator as administrator. Can a refunding bond be insisted upon as to this part of the decree ? We answer, under the circumstances of this case, No. The case of Judge of Probate v. Thompson, reported in the 2d volume of Howard, page 808, declares, that in an action on an administrator’s bond by a distributee, it must be averred in the declaration, that the debts are paid, or a refunding bond must be tendered. This is too evidently law, to authorize an attempt to demonstrate it to be so; and it is in effect averred in the bill, and admitted in the answer in this cause, that all the debts of the deceased had been paid before the bill was filed. The Court is requested to inspect the record, by which we think it, appears by necessary inference from the pleaxlings, that the debts had all been paid previous to the filing of the bill. So much for the objection, that the decree which is sought to be reversed does not require the tender of refunding bonds.
    The jurisdiction of the Court having been admitted by the par-lies, and the necessity of a tender of refunding bonds proven not to exist in this cause, the only question which remains for examination is, whether a sufficient time had elapsed between the sale of the lands and the filing of the bill to authorize a call upon the trustee for an account of the proceeds of the sale ? We think that the lapse of six years is sufficient time to authorize such a call, and that the administrator has made himself by his laches, and by his change of the securities originally taken for the payment of the purchase-money, personally responsible for the debt. See Caffray v. Darby, 6 Ves. 487 { Schultz v. Pulver, 11 Wend. 365.
    
      C. E. Mount, in reply.
    1. Consent or acquiescence cannot give jurisdiction where it clearly appears the Court decreeing-or rendering judgment had not jurisdiction ; and although it is the, duty of the party .objecting, to do it at the earliest stage, yet it has been expressly held in Tennessee, that a discovery of want of jurisdiction may be, urged at any time. Decrees made in the absence of jurisdiction are coram non judice, and void. The authorities cited from 2 Caines’ Cases in Error, and 2 Johns. Ch. R., do not carry the rule as far as contended for by counsel for defendants in error.
    2. The condition of the refunding bond from the administrator, required in such sale as the present, is, that he will apply the proceeds in such manner as “ they would have descended, been applied, or appropriated;” which, coupled with the fact that the suggestion for the sale under the statute of 1830, H. & H. p. 418," may be made by any person interested in the estate of the intestate, seem to warrant the conclusion that the proceeds would be subject to payment of debts.
    
      Non constat, whether a creditor, heir, or distributee made the suggestion, and had the sale directed, and it is believed that either might.
    It is true that the bill states, that the estate is settled, but the answer denies that, and we think that the Court cannot indulge in a presumption or inference, where, by the authority cited, 2 How. R. 808, the averment must be positive.
   Mr. Justice Clayton

delivered the opinion of the Court.

This was a petition filed in the Probate Court of Yazoo county, by the distributees of Thomas Y. Berry, deceased, against the plaintiff in error, who is the administrator. The object was to recover their distributive share, as well of the personal estate, as of some real estate which had been sold by the administrator under an order of the Probate Court for that purpose. There appears to be no dispute as to the personalty, except whether-the Court in its decree should have required a refunding bond to be given.

As- to the proceeds of the land, there is more controversy. It was sold upon a credit. The purchaser died insolvent, before the note became due, and suit was instituted upon it as soon ás it could legally be done. After judgment, the execution was levied upon some slaves, which were claimed by a third person, and a bond given to try the right of property. From the large amount of business in the Court, several terms elapsed without a trial of the issue. In this state of things, by the advice of his counsel, who regarded the result as very doubtful, the administrator made a compromise with the parties, and agreed to extend the time of payment upon receiving ample security for the debt. This was done, and the debt thereby rendered safe, though previously doubtful. Before the day arrived, at which the debt became payable under this new arrangement, this petition was filed with a view to make the administrator liable individually for 'entering into this agreement; in other words, to^ charge him for the amount for which the land sold, and to leave him to collect the1 debt hereafter. The administrator insists that he is not liable, until the money is collected. The Probate Court decreed, that he should account and pay over immediately, and the case comes up from that decree. Fhom the testimony, there is no doubt that the administrator acted in good faith, and the debt was probably saved by the change of security. The statutory mortgage was not resorted to, because the land had so far depreciated in value, that it would not have brought more than half of what it sold for in the first instance.

Debts due to a decedent are assets, but not to charge the executor or administrator, till he has received the money. 2 Lomax, Ex’rs, 229 ; 9 Leigh, 441. The executor may release or compound a debt, and if in so doing he appears to have acted for the benefit of the estate, he will not be chargeable with it as assets. 2 Lomax, 230; Blue v. Marshall, 3 P. Wms. 381. This is the rule in equity, though at law a more strict doctrine seems formerly to have prevailed. Toller, 425, 428. Without undertaking to decide how far this strict legal rule would now be enforced in an action for a devastavit, we are in this proceeding in the Probate Court led to adopt the principles which prevail in equity. The rules which there govern the conduct, and regulate the liability of trustees and executors, are framed with a view to secure good faith and correct dealing upon their part, but not to visit upon them any extreme measure of liability, lest good and prudent men should thereby be deterred from undertaking any trust. Chancellor «Kent lays down the rule, “ that trustees acting with good faith, are to be treated with liberality and indulgence. If there is no wilful misconduct or fraud on the part of an executor, he will not be held responsible for loss.” Thompson v. Brown, 4 Johns. Ch. R. 629. See also Brown v. Campbell, Hopkins’ Ch. R. 233. Other cases hold, that “the executor or administrator is liable for negligence, and that it is necessary to exact from them the same diligence and attention to the business they have'voluntarily assumed, which every discreet man would bestow upon his own.” Shultz v. Pulver, 11 Wend. 368; Caffray v. Darby, 6 Ves. 494. Probably this extension of the rule leaves it lenient enough, and gross negligence as well as bad faith should be holden to create liability. Indeed, gross negligence often amounts to bad faith and fraud.

These rules seem plain, yet their application to particular cases may often prove the source of embarrassment. In this case, however, there exists no such difficulty. There has been no bad faith, no wilful misconduct, and no negligence. On the contrary, there has been a degree of diligence and vigilance in the management of the estate, equal to what most men, however discreet, bestow upon their own affairs. The act complained of appears beneficial, rather than hurtful, to the interests of the distributees. If the administrator had failed to make the arrangement, when it was in his power, we should, under the circumstances, have deemed that there would then have been better ground to make him liable than now; because there would have been negligence in securing a debt,, when he had it in his power to do so.

In our view, the conduct of the administrator in this instance was not such as to render him personally responsible, at least for the present, for the amount for I which the land sold. If after the new instalments have fallen due, it should be made to appear that the debt was lost by this arrangement, then the case would assume an entirely different aspect.

It has already been 'decided by this Court, that in its decree for„ distribution, at any time previous to the final settlement of the estate, the Probate Court should require a refunding bond to be given as a condition precedent to the execution of the decree. Murdock v. Washburn, 1 Sme. & Marsh. 547.

The decree will be reve'rsed and the cause remanded. So far as relates to the sale of the real estate, and to the attempt to render the administrator personally liable therefor, the petition will be dismissed without prejudice to any future proceeding. For all other purposes the bill may be retained for farther proceedings.

Decree reversed.  