Tayloe v. . Tayloe

MekrimoN, C. J. after stating the facts: It appears by the record that.each of the parties waived his right to trial by a jury. It was thus consented by the parties that the Court might find the facts, and we are not at liberty to review the findings of fact by a tribunal thus selected by the parties. Moreover, it is stated in the case settled on appeal that the facts as stated by the Court, “during the argument before his Honor, were admitted by both the plaintiff and defendant to be true, and the Court so finds.” This statement is part of the record, and wé must accept and act upon *73 the record as it comes to us, as duly certified, by transcript. It was therefore wholly unnecessary to send up the whole or any part of the evidence upon which the Court based its findings of fact. The appellant insists that the Court improperly charged him with the face value of the stock of the Institute mentioned, because, first, he purchased the same at a sale thereof made by him as allowed by law, and accounted for the sum of money bid, and paid for it in good faith, and with the view to benefit the estate of which( he was administrator; and, secondly, that the “stock had no pecuniary market value whatever, and the defendant acted in the matter in good faith and, as he believed, for the best interest of the estate.” Very certainly, the appellant had no right to purchase the stock of himself at his own sale, made in pursuance of an order of the Clerk of the Superior Court allowing a sale of such stock, as he undertook and purported to do. To say the most for him, such sale was voidable at the will of the next-of-kin (of whom the appellee is one), and interested creditors An adihinistrator cannot purchase property at his own sale, even in good faith, fairly, and for a fair price; certainly, he cannot in any case, without the sanction or rati-ficationinsomesufficientway manifested of those interested. This rule is well settled and founded in reason, justice and sound policy. For convenience of reference, we here cite several cases more or less in point, and stating the reason and grounds of the rule. Ryden v. James, 1 Hawks., 497; Cannon v. Jenkins, 1 Dev. Eq., 426; Villines v. Norfleet, 2 Dev. Eq., 167; Ford v. Blount, 3 Ired., 516; Tate v. Dalton, 6 Ired. Eq., 562; Stewart v. Rutherford, 4 Jones, 483; Robinson v. Clark, 7 Jones, 562; Roberts v. Roberts, 65 N. C., 27; Froneberger v. Lewis, 70 N. C., 456; Froneberger v. Lewis, 79 N. C., 426; Howell v. Tyler, 91 N. C., 207. *74 It does not appear that the appellee in any way sanctioned, assented to or ratified the sale in question. He was not bound by it, and he has the right to avoid it. It must be treated as wholly ineffectual for the present purpose. If the appellant had sold the stock ata fair sale and in good faith-, under the order of the Clerk of the Court, to some person who might purchase the same and who b'id and paid less than the real value of the property, he would be chargeable only with the sum of money he so received; but he chose not to make an effectual sale, thinking and believing he ought not to allow a great sacrifice of the stock. But this did not justify him in afterwards virtually giving it to the association, as he did do. It was not his. There had been no sale of it, and he was bound, as administrator, not simply to exercise good faith, but as well to observe reasonable care and prudence in the disposition of it. An administrator is not an insurer, but he is required to observe good faith and ordinary care. He must honestly and faithfully intend to care for and promote the just advantage in all respects of the estate for the benefit of those interested in it. But this is not sufficient. Pie is further bound to exercise reasonable prudence and care. What is such prudence and ordinary care must depend more or less upon the condition and circumstances of the matters and things to be done or disposed of in the course of administering the estate. However honest an administrator may be, and however much he may desire to protect and promote the estate with which he is charged, he is required to use such ordinary diligence, care, foresight and circumspection as an ordinary sensible and prudent man would do, under the like conditions and circumstances, as to his own property and affairs. Nelson v. Hall, 5 Jones’ Eq., 32; Patterson v. Wadsworth, 89 N. C., 407, and numerous'cases there cited; Torrence v. Davidson, 92 N. C., 437; Grant v. Reese, 94 N. C., 725; Green v. Rountree, 88 N. C., 164, and the cases there cited. *75 In this case the Court finds that the appellant acted “in good faith and, as he believed', for the best interest of the estate”; but it finds further “that the stock was solvent,and could, by due diligence, have been collected in full,” and hence it charged him with the face value of the same. It finds that he was honest; that, however, he was not reasonably diligent, prudent and careful; that he disposed of the stock unlawfully and for a sum of money greatly less than its value, to the appellee’s injury. And surely the facts as found show that the appellant was chargeable with gross negligence. The property of the Institute was worth from $20,000 to $25,000. It owed debts to the amount of $10,500. Its capital stock was $10,500. The appellant treated $1,000 of the stock in his hands as worth but $103, and accounts for only that sum. He failed to dispose of it as the law directed, as he should have done to relieve himself from liability. The Court finds that it is worth the sum specified in the certificate. Hence, clearly, the appellant was properly charged with that sum. Judgment affirmed.