
    SEARCY, Adm’r, vs. HOLMES, Adm’r.
    [CONTEST IN PEOBATE COtJET AS TO ALLOWANCE OE CREDIT FOE NOTES TAKEN BY ADMINISTEATOE ON SALE OF PEOPEETY BELONGING TO ESTATE OF DECEDENT.]
    1. Administrator; measure of diligence and care required of. — If an administrator, in taking the bond or note required in sales, upon a credit, of the personal property of his intestate, acts with such care as a prudent man would take in the management of his own business, this will be sufficient.
    2. Same; what credit entitled to, on settlement. — Upon such administrator’s removal, and on his final settlement, he should be allowed a credit for notes thus taken, although the two securities required by the statute on such notes might have had no more property, real or personal, at the time of their signing said notes, than was exempt by law, unless it appears that the debts secured by said notes have been lost to the estate by the insolvency of such securities.
    3. Same ; fcvrden of froof to show loss. — In such a case, the administrator de bonis non must show both the negligence and the loss of the debts.
    Appeal from Probate Court of Henry.
    Heard before Hon. J. B. Appling.
    Tbe facts are sufficiently stated in tbe opinion.
    "W. C. Oates, for appellant.
    1. Tbe words, “at least two sufficient securities,” in section 2077 of tbe Revised Code, clearly mean sucb security as will render tbe payment of tbe debt reasonably certain. Tbis statute is certainly mandatory. If it were directory merely, then tbe executor or administrator would be governed'alone by bis discretion, and discretion would be tbe only safeguard of tbe interest of minors and other legatees and distributees of estates; for in no case would tbe courts bold sucb executor or administrator responsible for an injudicious or unwise exercise of a discretion with which tbe law had invested him, unless it could be shown that bis conduct was malifide.
    
    Permissive words, when used in a statute conferring rights on third persons or tbe public, should be construed as mandatory and imperative for the purpose of sustaining and enforcing rights. — Ex parte Banks, 28 Ala. 28. But the words of the statute under consideration are imperative, and good faith is no protection against the consequences of a non-compliance with the requisitions of the statute. — Cotton v. Rutledge, 33 Ala. 114 ; Sedgwick on Stat, and Const. Law, 100.
    The law presumed negligence on the part of the administrators, when it was shown to the court below, by an appropriate objection, on account of the insufficiency of the securities taken on the notes, unless they overturned that presumption by proof of their diligence. The proof in the cause shows that no inquiry was made by either of them in reference to the sufficiency of the securities. Is this such diligence as the law requires ? The administrators were not restricted by the statute to personal security. They could have exacted mortgage security on real or personal property. If administrators exercise due diligence, they can, in ninety-nine cases out of every one hundred, obtain sufficient security for all property sold by them, and in this way secure themselves from liability and the estates they represent from loss.
    John M. MoKleroy, contra.
    
    The word “ securities,” in section 2077 of the Revised Code, means personal securities, or sureties. The words, securities, and sureties, are synonymous. — Bouv. Law Diet. The language in sections 2076, 2077, 2089, and 2093 of the Revised Code, shows conclusively that nothing but personal sureties is meant by the word “ securities,” as used in those sections.
    Section 2077 of the Revised Code is certainly mandatory upon the administrator as to the number of tli6 securities to be taken upon the notes or bonds, but the ■stffidency of the securities must -necessarily be left to the judgment and discretion of the administrator. The law never requires of any one an impossible or foolish thing; and it would be impossible for administrators to know certainly, in every instance, whether the securities offered are in fact solvent, and possess more property than is exempt from levy and sale under execution. He has no right to require the persons themselves who are offered as securities, nor any others for them, to testify as to their solvency and property; and if such oaths should be voluntarily taken, they would be extra-judicial, and would not support an assignment of perjury.
    The law regards administrators and executors as trustees in almost every relation they may bear to the estates they represent; and the law will protect trustees, when they act in good faith, as well as the cestui que trust. — Pinckard's Distributees v. Pinckards Administrators, 24 Ala. 250; see, also, 39 Ala. 709 ; 33 Ala. 291; 19 Ala. 438. •
    In Stewart’s Administrator v. Stewart’s Heirs, 31 Ala. 207, ,the court uses the following language in relation to a question similar to the one involved in this case: “ It is not averred that the makers of this note were either solvent, or reputed to be solvent, at the time the note was executed.” This was applied to a question of pleading in the chancery court, when the administrator himself had filed his bill for a final settlement of his intestate’s estate, and he was sought to be charged with the amount of a note taken by him for property belonging to the estate, and which said note, it was averred, “ proved insolvent.” The court properly held, that under the averments of his bill, the administrator must be charged with the note, but the clear implication from the language of the court in relation to it, quoted above, is, that if the administrator had averred that the securities taken on the note were “ either solvent, or reputed to be solvent,” at the execution of the note, and the averment either of solvency or reputation of solvency had been sustained by the proof, then he would have been entitled to a credit for the note.
   PETEES, J.

There is but a single question raised on this record. This involves the construction of section 2077 of the Eevised Code, governing the security to be taken on sales of the personal property of decedents by the administrators of their estates. The language of the statute referred to is as follows: “ When the sale is on credit, notes or bonds, with at least two sufficient securities, must be taken by tbe executor or administrator,” — Bev. Code, § 2077.

In this case, it appears that tbe appellees were removed as the legal personal representatives of Bryant Holmes, deceased, and the appellant, Searcy, was appointed administrator de bonis non of said estate, to succeed them. And in August, 1869, said appelleés proceeded to make final settlement of their administration of said estate, in the probate court of Henry county. On this settlement, the said appellees asked a credit for the amounts of two promissory notes taken by them in the course of their administration of said estate, on the sale of the personal property of said deceased. Copies of these notes are given below, as follows:

“ $109 00. — Twelve months after date, we, or either of us, promise to pay Lewis H. Holmes, administrator of Bryant Holmes, deceased, or bearer, one hundred and nine dollars, for value received. February 8, 1868.
(Signed) L. G. Calhoun,
Thomas Craddock,
Frederick Carter.”
“ $383 85. — Twelve months after date, we, or either of us, promise to pay M. E. and L. H. Holmes, administrators of Bryant Holmes, deceased, or bearer, the sum of three hundred and thirty-three dollars and eighty-five cents, for value received.
(Signed) W. J. Stanford,
W. H. Hardwick,
M. K. Wood.”

To the allowance of these notes “ as a credit to said administrators on said settlement, the administrator de bonis non ” and guardian ad litem made objection in writing, “because said notes were given for personal property of said estate, sold by said administrators, who failed to take two good and sufficient securities upon said notes, as required by law.” And thereupon they moved the court to reject these notes and exclude them as credits to said representatives. Upon this objection issue was taken. And the evidence on the part of the appellees in this court, showed that Hardwick, Wood, Craddock, and Carter, the sureties on said notes, were of good reputation as debt paying men, and that the witnesses would have credited them for the amounts of said notes in the transaction of their own affairs, at the date of said notes; that they, said witnesses, thought them good. It was also shown that said Lewis H. Holmes thought said notes good when he took them, but he did not ask the sureties what they were worth, or how much property they had, but he knew that they were generally represented as responsible, and he made no inquiry about them. It was also proven that all of said sureties had gone into bankruptcy, except Wood, and that Stanford had likewise become a bankrupt. The contestants then proved that at the date of said notes, none of said sureties owned or possessed as much property, real or personal, as was exempt from levy and sale under execution by the laws of the State then in force; that no money could at that time have been collected out of them by legal process. This was in substance all the testimony offered on either side. There was no proof that the notes were really insolvent, or that any attempt had been made to collect them and that such attempt had failed. Upon this evidence, the court below overruled the objection, and allowed the credit as asked. To this the administrator de bonis non and said guardian ad litem excepted. It is now insisted that the court below erred in this decision.

Promissory notes or bonds taken by the administrator in chief, on the sale of the personal estate of the deceased, are assets of such estate, and if not collected, they pass to the administrator de bonis non, and vest in him. — Rev. Code, §§ 2233, 2078. More than twenty years ago, this court, after a careful examination of the authorities upon the measure of diligence required of administrators in the performance of their duties, under a statute quite similar in language to that above'quoted, laid it down as a proper rule, that “ if an administrator, or any other trustee, acts within the scope and on the line of his duty, and exercises good faith and ordinary diligence in regard to the property entrusted to his care, he is not responsible, although loss befall the estate by the insolvency of those who may be indebted to it, or who may have possession of the property belonging to it.” — Dean and Wife v. Rathbone, Adm’r, 15 Ala. 328, 334; Stewart’s Administrator v. Stewart’s Heirs, 31 Ala. 207, 316. The words of the statute must be construed in reference to these decisions, and so construed, they require of the administrator to show that he acted with ordinary prudence, and in good faith. Here the proof does not show that he acted otherwise, or that the debts evidenced by the notes mentioned have been lost to the estate, or that they will be so lost. The onus is on the administrator de bonis non to do this, before the adminis^ trator in chief can be charged.— Wilkinson v. Hunter, 37 Ala. 269; Strong v. Wilkinson, 14 Miss. 116; Thomas v. White, 3 Litt. 177; Whitted v. Webb, 2 Dev. & Batt. Ch. R. 442; Deas v. Spann, 1 Harp. Ch. R. 176; vide Willis v. Willis, 16 Ala. 652.

Without a more careful criticism of the above cited statute, we put the decision of this case upon the grounds that the proof does not show that the want of diligence alleged has terminated in the loss of the debts secured by the notes, or that this must necessarily happen.

The judgment of the court below is affirmed, at appellant’s costs in this court and in the court below.  