Dortch v. . Dortch

Settle, J. The material facts are, that in 1854 the defend-, ants became the administrator of L. J. Dortch, who died in that year in Edgecombe county, leaving a widow and three children, who are the plaintiffs in this action. That the plaintiffs removed to and became residents of the State of Mississippi. Some time before the filing of this petition, which was .at Fall *225 Term, 1859, and that the three children, all infants, had no • guardian in this State. That the estate of the intestate, L. J. Dortch, was much involved in litigation, requiring numerous - suits and much delay in its settlement; that the defendant having, money in his hands belonging to the estate, with suits' pending .• against him, which he might be called upon to'answer, and' further, having no one in the State to whom he'could pay the money, invested it by loan to one George "W". Collier, on what is admitted to have been good personal security, but what after-wards became worthless by the results oí the war. That the defendant in 1867, in order to secure this fund, took the note of the said Collier for the same, and secured the note by mortgage on land, which is alleged to be amply sufficient to pay the debt; that in consequence of protracted litigation the Col- ■ lier land has not yet been sold. At Spring Term, 1872, an order was made appointing a-commissioner to state the account of the administration by the defendant. A report was made, and exceptions filed, and the controversy is now narrowed down to a single point which arises upon thair portion of the report, which is as follows : “ It further appearing that George W. Collier was indebted ■ to the estate, (meaning that he had borrowed money belonging ■ to the estate of the intestate, from the defendant,) and'that he became insolvent by the results of the war, and that the administrator took his note on the first day of February, 1867,. secured by mortgage on real estate, which is amply sufficient to secure the payment of said note, the collection of which has-been delayed by much litigation, I report that the sums dire-the plaintiff should be paid out of said note when collected, the-amount of said note being more than sufficient to pay the sums • reported.” The plaintiff excepted to the report of the commissioner, finding that they should be paid out of the proceeds of the Collier note and mortgage, insisting that they were entitled to- *226 an immediate judgment; and his Honor sustained the exception from which ruling' the defendant appealed. The question at once presents itself: Did the defendant act In good faith, and with due diligence in his transactions with Collier?' The authorities cited by Mr. Haywood, in his-well considered brief, establish beyond question : 1. That when an executor or administrator has money of the estate in his hands, and there' are no- reasons why he should retain it, and he has an. opportunity of paying it over to the legatees or next of kin, he should do so, and will not be heard to say that he had loaned it out, for the sake of interest. 2. If there are reasons why he should retain it,- in order to meet the exigencies of his office, or as in our case, to pay debts, if established, or because there was no one here authorized to receive it, he is not only permitted but- encouraged to invest it in interest-bearing securities, for the benefit of the fund. 3. An administrator is not required to insure the estate of his intestate, but he is required to be honest, faithful and diligent. Let us apply these principles to the case before us, The defendant, in the early part of his administration, had ■two reasons for retaining the fund, either of which was snf-•ficient, and -having once invested it, the result is likely to prote ■that he'has been much more fortunate in-his investment, and management of the fund than nine-tenths of those who have had the management of trust funds during and since the war. No one'will say that he ought to have collected depreciated ■currency during the war; and those who have witnessed the ■general wreck of fortunes since the war will hardly believe that one who is about to save all that was entrusted to him, is not both faithful and diligent. "What we have said disposes net only of the main question, 'but also of the exception as to the forty dollars expended orj : account of-the Collier .mortgage. This opinion will -be certified to the end that the Superior *227 Court may inquire into the condition of the mortgage, and h-ave it assigned for the benefit of the plaintiffs, or require the ■defendant to close it, for the benefit of the plaintiffs, as may seem best to meet the 'ends of justice. Ueb Cubiam* Judgment accordingly.