Moore v. . Eure

Davis, J., (after stating the case). The single question presented for our consideration is as to the liability of the defendant administrator for the loss sustained by the failure of the Exchange National Bank. The case shows, and it is conceded, that ■ the defendant acted in perfect good faith, but the counsel for the plaintiffs insist: *15 1. That it was the duty of the defendant when the receiver Vaughan declined to receive the money to “take proper steps to make him do so, or pay the amount into the Clerk’s office, in discharge of his obligation, in accordance with the provision of The Code, § 1543.” This is authorized by the statute, but it is not required— the statute is not mandatory — it only declares that “ it shall be competent for any executor, administrator or collector, &c., * * * * to pay into the office of the Clerk of the Superior Court,” &c. It is not made his duty to do so, and there may sometimes be reasons for not doing so. 2. It is further insisted for the plaintiffs that the defendant committed a devastavit in carrying the money out of the State and beyond the jurisdiction of our Courts, and to sustain this position Collins v. Gooch, 97 N. C., 186; Lucas v. Wasson, 3 Dev., 398; Pitt v. Petway, 12 Ired., 69; Wicker v. Grim, 80 N. C., 343; Strauss v. Crawford, 89 N. C., 149; Havens v. Lathene, 75 N. C., 506, are cited and relied on. The case of Collins v. Gooch is unlike this. In that case the receiver was acting for minors under the appointment of the Court, with duties clearly and well defined in the order appointing him. While no intentional dereliction of duty was imputed to him, for it appeared that he acted in perfect good faith, yet the order under which he was acting made it his duty to make annual returns to the Court to be passed upon and audited, in the cause thus pending, by the presiding Judge. This he failed to do. He was, as was said by the Court, a quasi guardian; and it was further said, that if he had reported the deposit, as it was made his duty to do, and been sustained by the Court, he would have been protected. The other cases cited by the counsel for the plaintiff (except the last) are cases in which it is held that one tenant in common of personal property cannot carry the common property beyond the limits of the State without the consent of his co-tenant; and if he does so, it is a conversion *16 for which an action will lie. Tenants in common have an equal right to the possession of the common property, and we fail to see the analogy between the cases cited and that before us. The administrator is appointed by the Court, and is required to take an oath and give the bond required by law, and a non-resident who does this is not included in the disqualifications of The Code, §1377. Administrators, whether resident or non-resident, are required to give bond, and so are executors who reside out of the State — The Code, § 1515— and these bonds are for the protection of those interested in the estate committed to their charge against loss resulting from bad faith or negligence. Good faith and the use of ordinary care and reasonable diligence are all that can be required of executors and administrators, whether resident or non-resident. They are not insurers. DeBerry v. Ivey, 2 Jones Eq., 370; Nelson v. Hall, 5 Jones Eq., 32. Even guardians,'whose duties in regard to investments are prescribed, while held to the highest degree of good faith, are not bound as insurers. Covington v. Leah & Wall, 67 N. C., 363; Atkinson v. Whitehead, 66 N. C., 296. The “ hard rule upon public officers,” enunciated in Havens v. Latham, has never been held to apply to executors and administrators. There is no error. Affirmed.