
    *Boaz’s Adm’or v. Hamner & als.
    March Term, 1876,
    Richmond,
    i. Executors — Freed Slaves — Liability for Price of.— Testator dies in 1859, and directs all his estate to be sold as soon as convenient. The executor has the personal property appraised on the 81st of November, and sells it the next day. Four slaves, appraised at $3.700, are sold for $4,955, and bought by one of the legatees living in Missouri. This legatee was not present, but the executor, on his reanest, bought them for him. The purchaser executed his bond for the price, but without security; and the executor retained possession of the Slaves until they were Treed l:>y the results of the ■war. The executor and his sureties must account for the slaves at the price for which they were sold ■fay him.
    2. Same — Duty to Take Security for Credit Sales. — It is always the duty of a personal representative to deman d and take good security of every purchaser on credit of property of the decedent, wherever the purchaser may reside, and whatever may he his pecuniary circumstances.
    This was a suit in equity in the circuit court of the city of Eynchburg, brought in September 1866, by Charles H. Hamner and others, three of whom were infants suing by their next friend, against Robert J. Boaz in his own right and as executor of Meshack Boaz deceased, and his sureties and others, to have an account of his administration, and payment of the amount due from him to the legatees of Meshack Boaz deceased. The account was referred to a commissioner, who made his report; and the only question in the cause was as to the liability of the fexecutor for four slaves, purchased by Em-rqfett D. Boaz, who lived in the state of Missouri.
    Meshack Boaz, of the county of Appomattox, died *in 1859, leaving a will, which was duly admitted to probate in the county court of that county at its November term of that year; and Robert J. Boaz qualified as his executor. The first item in the will is as follows: 1st. After toy death, as soon as convenient, I dfesire my executof to advertise and sell my whole festate, both real and personal, on such reasonable credit as he may think best for the interest of my estate, and out of the proceeds of such he pay all my just debts and funeral expenses.
    .The testator then proceeds to give his estate, in five equal parts, to the children of his five children, except one-fifth which be gives to his son Emmett D. Boaz. David Boaz, one of the sons, was dead, and his children lived in Missouri.
    , The executor proceeded promptly to have the property appraised and sold. The ap-praisement took place on the 21st of November 1859, when the four slaves bought by Emmett D. Boaz were appraised at $3,-700; and the sale was made the next day upon a credit of six months, when these slaves were sold at $4,955.
    The executor filed with his answer two letters of Emmett D. Boaz; the first dated October 23d, 1859, in which, after saying he cannot be present at a sale in November, he says, “X would earnestly request you and all the legatees to make such disposition of the blacks as would gratify their wishes and best secure their comfort and happiness. You are hereby particularly desired to buy ariy or as many blacks as may desire to be bought by me, to the full amount of my in-tferest and the interest of David’s children in the entire estate; and in addition to my and David’s children’s interest, you are requested to use $2,000 in buying the negroes belonging to the estate that may 'Mesire to be purchased by me; provided you can make an arrangement to wait for the money for one year, at an interest not exceeding ten per centum per annum. Any legatee wishing to buy any of the blacks, to gratify the blacks, shall have the full and entire amount of my interest and the interest of David’s children in said blacks for one year, by paying such interest ■ as may accrue by law. Buy no negro for me unless they request it.”
    At the sale the executor bo ught for Emmett D. Boaz the four slaves, and retained them in his possession until the terms of sale should be complied with. This, however, was never done: Emmett Boaz gave his own bond for the amount without security; and on the 1st of January 1861 he paid to the executor $550. The balance of the purchase money was not paid; and the slaves, except one that died, were retained by the executor until they were emancipated by the results of the war.
    The cause came on to be heard on the 29th of November 1867; when the court held, that the executor should be charged with the sum for which the said four slaves were sold on the 22nd of November 1859; and made a decree against the executor and his sureties, in favor of the respective plaintiffs and a trustee of the legatees of one-fifth of the estate, for the amount appearing due to them by the report. And directed the executor to render a further account.
    Robert J. Boaz having died, his administrator applied to this court for an appeal; which was allowed.
    Bocock, for the appfellant.
    J. Alfred Jones and Kirkpatrick & Black-ford, for the appellees.
    
      
       Duty of Executors to Take Security for Credit Sales. —This duty is imposed by statute. Va. Code, § 2651. See also, 3 Min.Inst. (2d Ed.) 578; Barton’s Ch. Pr. (2d Ed.) 718; Cogbill v. Boyd, 77 Va. 450; Southall v. Taylor, 14 Gratt. 269; Miller v. Holcombe, 9 Gratt. 665.
    
   Moncure, P.,

delivered the opinion of the court.

-The court is of opinion that thfe circuit court did not err ‘‘in holding the executor chargeable with the value of the slaves, John, Frederick, Polly and Sally, and with interest thereon.” It was the plain duty . of the executor to sell them. The first clause of the will expressly declares, that “After my death, as soon as convenient, I desire my executor to advertise and sell my whole estate, both real and personal, on such reasonable credit as he may think best .for the interest of my estate, and out of the proceeds of such he pay all my just debts and funeral expenses.” Accordingly, very soon after the probate of the will and the qualification of the executor, and during the same month, to wit: on the 22d day of November 1859 he sold the slaves at public auction on a credit of six months, when Emmett D. Boaz, residing in the state of Missouri, one of the sons, and five residuary devisees and legatees of the testator, and also testamentary guardian of the children of David Boaz, a deceased son of said testator, the said children, also residing1 in the said state, became the purchaser of the said slaves, through the agency of the said executor, at the price of $4,955. It was the plain duty of the executor to demand and take of the purchaser bond with , good surety for the purchase money. That the purchaser was a man of ample means, if he really was so (though that fact does not appear from the record), makes no difference. It would make none if the purchaser had resided in the state of Virginia. It is always the duty of a personal representative to demand and take good security of every purchaser on credit of property of the decedent, wherever the purchaser may reside, and whatever may be his pecuniary circumstances. That the purchaser resides abroad, if it be not a reason for increased strictness in this respect, is certainly no reason for the ^contrary. When therefore the purchaser in this case failed to comply with the terms of sale, by giving bónd with good security for the purchase money, in a reasonable time after the sale, it was the plain duty of the executor to resell the slaves at the risk and loss of the purchaser. Had he performed this plain duty the estate would have sustained no loss by the transaction, but would have realized the full market value of the slaves at that time. Suppose the executor, though required by the will to sell the testator’s whole estate as soon as convenient after his death, had not sold the slaves at all, but retained them as his testator’s estate, until they perished in his hands by the result of the war, would he not have been clearly liable to the estate for their value at the time when they ought to have been sold? Was not that in effect the very course which he pursued? To retain and hold the slaves themselves as security, in lieu of that which the law made it his duty to demand and receive, was no legal equivalent therefor. Slaves were a precarious security at best, and especially at that time. They were always liable to loss by sickness, death and running away, and their intrinsic value daily diminished, until, in consequence of the late war, it was wholly destroyed. In that way the value of these slaves was destroyed, and the loss of that value has thus plainly resulted from the neglect of the executor. His liability to indemnify against the consequences of that loss such of the legatees as had no agency in bringing it about cannot be denied. That he was influenced by kind and humane feelings in what he did cannot alter the case. It may excite our sympathy for him, and our regret at his loss, but right and justice must still be done by us, and we must administer the law as it is written. Men may do what they please with their *own, and may justly be commended for their liberality in so dealing. But when they undertake to execute a fiduciary trust for others, and especially infants and others under disability, they must take care to proceed according to the rules of law and equity. It can require no citation of authority to sustain these principles with which we are all familiar.

The court is further of opinion that the circuit court did not err “in fixing the value of said slaves at the price at which they were sold at the executor’s sale, instead of the sums at which they were appraised at the appraisement the day before.” The presumption is, that they were sold for no more than their market value, and that if they had been resold at the loss and risk of the purchaser, on his failure to comply with the terms of sale, they would have brought the same, or nearly the same, price; and at all events the loss would have been made good by the first purchaser.

The court is further of opinion that the court did not err “in decreeing payment of the shares of the minor plaintiffs directly to them, instead of to their guardians.” The effect and object of the decree, which is merely interlocutory, was to settle the rights of the parties, or some of them. Of course the money will not be paid into the hands of infants; and the court below can yet make any order on that subject which may be necessary to ensure the payment of the money into proper hands. If the appellant has any interest in that question, he might have guarded his interest by a prop.er motion to the court below before he brought the cause here, and he may guard it by such a motion after the cause goes back.

This court is of opinion that there is no error in the decree of the court below, and that it ought to be affirmed.

Decree affirmed.  