In re the Estate of Millenovich

By the Court, Lewis, 0. J.: This matter comes before this Court upon an appeal from a decree of the District Court settling and allowing the final accounts of Marco Medin, the executor of Millenovich, deceased. Upon the hearing in the Court below between the contestants and the executor, several items were stricken from the account; but it is claimed on behalf of the heirs that there are many others settled and allowed which should have been stricken out. The objection to these items will be presently noticed, but it may be well to observe in the outset that whilst the law closely scrutinizes the acts of executors and administrators, and requires.the utmost good faith from them in all their transactions with or on behalf of the estate, it — 177 — does not require infallibility of judgment, nor rigorous accountability for every mishap which may occur during the administration. When the law requires a thing to be done, and has not plainly marked out the manner in which it shall be performed, the executor or administrator is required to exercise not only the utmost good faith but also ordinary prudence and judgment in its execution. But when it has already pointed out a certain course to be pursued, that course must be strictly followed. If the executor in the conscientious and judicious discharge of his duty, sustains a loss by reason of unfortunate circumstances, and not by reason of any violation of a positive requirement of law, he should not be held to strict personal account for such loss. “ If the administrator has acted for the benefit of the estate, used proper diligence, and acted with ordinary care and circumspection in the discharge of his trust, he ought not to be held answerable for the losses which could not have been foreseen, and which ordinary precaution could not guard against.” (1 Scammon, 75.) In the discharge of fiduciary duties a person is not held accountable for those mischances which ordinary prudence could not have averted. But for the consequences of rashness, imprudence, or bad faith, he is held most rigorously answerable, for although the law is indulgent to those whose acts are guided by good motives and ordinary prudence, it abhors fraud, bad faith, and feckless imprudence. Suppose, however, the law points out a certain course to be pursued by an executor or administrator, and that course is disregarded, what is to be the consequence V One thing is certain: he should be held to answer for any loss which the estate may suffer thereby. No plea of good faith, or the exercise of prudence, will avail him as a defense in such case against.the claim of the estate for indemnity or accounting. If he disregard the law he is answerable for the consequences, notwithstanding he may have been actuated by the best of. motives. We do not, however, wish to be understood as holding that every violation or disregard of some requirement of law will subject the executor to the imputation of mismanaging the estate, and so subject.him to a deprivation of his just commissions or compensation for the services performed by him. If, for example, he should in good faith do an act without an order — 178 — of Court, which the law declares shall not be done without such order, and if the act were one which the Court would have approved or ordered done, and no injury has resulted from his action, he should not be chargeable with mismanagement of the estate. In every such case, however, the executor renders himself liable for any loss which may be sustained by reason of the irregularity of his proceeding. Nor should the Court always compel the executor to undo the act simply because it was done without an order previously obtained. The interest of the estate should alone be considered in such case. If it would be for its benefit to have the act of the executor set aside, that course should be pursued; but if not, it should be approved. “ It is a rule in equity,” says President King, in Norris v. Fisher, (2 Ashmead, 424) “ that if an executor does without application what' the Court would have approved on. application, he should not be called to account and forced to undo that, merely because it was done without application.” And this is a rule equally applicable in the Probate Court in every character of proceeding. It should, therefore, be borne in mind that irregularities which have not been prejudicial to the estate should in no wise influence the Court in the settlement of accounts. The main inquiries are generally, whether the accounts are just and legal claims against the estate, and whether the executor has managed its affairs with good faith and ordinary prudence. Beyond these it is generally unnecessary upon the settlement of accounts to extend investigation. It is claimed by counsel for the heirs, however, that many of the items of the final account presented by the executor Medin are unjust and exorbitant, and that he is chargeable with gross mismanagement of the estate. And the first complaint made is, that the appraisers of the estate were not, as by statute they are required to be, disinterested parties. Whether they were or not is a question not necessary to be determined in this proceeding, for whether so or not, cannot affect the executor’s right to have his just accounts settled and allowed. It was not the executor’s duty, but the Court’s, to select the appraisers. (Stats. 1861, 201, Sec. 108.) The failure on the part of the Court to appoint proper persons, certainly does not subject the executor to any imputation — 179 — of wrong. Hence, all that is said with respect to the appraisers being interested parties can have but little bearing upon the real questions to be determined by this Court. That the failure of the Court to appoint disinterested persons to act as appraisers, is no reason why the éxecutor’s account should not be settled and allowed, if just and correct, is' a proposition almost self-evident. And another complete answer to what is said upon this point is, that the proof i@ satisfactory to us that the property sold was appraised at what it was worth, and sold for its full value in the market. . The first item of expenditure in the account which is complained of is that for repairs upon certain buildings, and improvements of certain real estate, owned by the executor and the deceased in his lifetime as tenants in common. It does not seem to be claimed that the executor had not the right to make these improvements; and the only objection which is made to this item is that it is exorbitant. Whether it is so, is the only question to be decided by this Court. The sum of money expended for these purposes amounts, in the aggregate, to three thousand one hundred and forty-one dollars, and as the deceased was the owner of an undivided half only, but half of this' sum (fifteen hundred and seventy dollars) is charged to the estate. It can hardly be doubted that this sum was paid by the executor for the improvements. But witnesses on behalf of the contestants, who made an estimate of the value of these improvements, testified that they should not have cost over about twenty-seven hundred dollars. The difference between this estimate and the amount expended by the executor was about four hundred and forty dollars on the entire improvements — or, two hundred and twenty dollars on the estate’s proportion of the cost. From this item in the account, it is, therefore, contended, should be deducted two hundred and twenty dollars. This difference between the estimate and the amount charged in the account by the executor is certainly not very damaging to him, even if .there were no testimony in support of - the item; for it is well known that estimates .of the costs of improvements of the character made by the executor are seldom anything more than an approximation to what .is usually the real cost. Hence, we doubt — 180 — whether, if there were no testimony whatever on the part of the executor in opposition to that presented by the contestants, this item should be remedied. But the executor did produce testimony fully showing the sum paid by him for these improvements, and' charged to the estate, to be moderate and reasonable; some of the witnesses estimating their value at thirty-eight hundred dollars. The testimony being thus conflicting, and the Court below having allowed the item as a just and legal charge against the estate, we would not feel justified in disturbing the decree, even if not entirely satisfied that it was correct. But the evidence fully satisfies us that the item is just and was properly allowed. Even if it were satisfactorily shown that the executor paid two hundred and twenty dollars more than the real value of the improvements, if he acted in good faith and exercised ordinary discretion and circumspection in the matter, we are not satisfied that he should be held to answer for such excess over the real value. (Christy v. McBride, 1 Scam. 74.) And we find nothing in the record to impeach either the good faith or the judgment of the executor in the matter of improvements. We conclude then that the Court below very properly refused to deduct anything from this item. It is next claimed that the executor has not accounted for all the money received by him as rent, and that he leased the property belonging to the estate for much less rent than could have been obtained. Upon these points also we find the testimony conflicting. Upon the charge that all the rents collected are not accounted for, the evidence is very strongly in favor of the executor. It is conceded that the rent agreed to be paid by Peiser, at first, was one hundred and fifty dollars, but Lovely, Vucovich, and Medin, testify that it was reduced to one hundred dollars per month, and their testimony is corroborated by the entries made at the time in the books kept by the executor. This Court cannot treat this testimony as unworthy of belief, when it preponderates over that against it, and the Court below credited and upon it settled the account. And accepting it as true, the amount returned by the executor for rents is correct, and so it should be settled. Whether the executor rented the several buildings to the best advantage, and in this respect discharged his duty faithfully and — 181 — judiciously, are questions which it is always very difficult to determine, for it does not by any means follow that the property should have been leased to those who offered to pay the highest rent. That is not the only matter to be considered in securing a tenant. The purposes for which the property is to be used, the responsibility of the lessee, the length of ¿ime for which he may agree to lease, and many other circumstances of the kind, must necessarily be taken into consideration. That tile executor was offered more rent than he received from those to whom he rented, is but little or no indication of mismanagement on his part. With all the circumstances to be considered in such a case, the mere proof that more rent was offered, or might have been obtained, is not sufficient to justify the conclusion of misconduct or bad faith on the part of the executor. Where so much must necessarily be left to the discretion of the executor, he should not be held to account, or his conduct impeached, except upon strong and satisfactory proof. Here, however, there is proof that the executor generally received and has accounted for as high rents as could have' been obtained from responsible tenants. True, some witnesses testify that they offered more rent for the premises than was being paid, but the answer which one of them says was made him, may serve as an explanation why such offers may not have been accepted. The executor, he says, informed him that he preferred to rent the premises to the tenant then in possession, for less money than that offered, because he considered him a responsible man. The executor seems to have secured good tenants, and he may very properly have concluded that it was better for the estate to retain them than to rent to others of doubtful responsibility at higher rents. It is shown that the San Francisco Saloon was rented at six hundred dollars per month for the first three months after the appointment of the executor, but so it is also proven that it became necessary to reduce it, as the business would not warrant the payment of that amount. If it were shown that the executor in bad faith, or injudiciously, rented the property of the estate for less than it should have brought, and what could with judicious management have been obtained, undoubtedly he should be held to account. But the evidence to establish it should be of the most satisfactory character. In this — 182 — case the evidence is conflicting, and on the whole we think there is sufficient testimony to uphold the conclusion attained by the Court below upon this item also. It is claimed further by the heirs that the item for funeral expenses is extravagantly high.. It certainly appears exorbitant, amounting in the aggregate to over thirteen hundred dollars. But every item making up this large aggregate is given by the executor, and his proofs establish beyond doubt that he paid out the full amount charged. And the evidence on-behalf of the contestants does not show the amount thus paid to be unusual or extravagant. It is not claimed that the executor should not have sent the body to California for burial, but it is claimed that the amount paid for doing it was more than should have been paid, and that the body could have been sent to its burial place by public conveyance, for about two hundred dollars less than the sum charged by the executor, as having been paid by him. But the evidence shows that the usual charges by private conveyances at that time for like services were fully as much as what is charged in this account, and this was the mode of conveyance employed by the executor. Should he have employed the cheaper mode ? and if so, should he be held to account for the surplus ? It seems if there were any good reason why the body of the testator should be taken to California for burial, upon the same reason it should be conveyed there in a decent and respectable manner. There was the same reason for employing a private conveyance in this case, as there is usually for employing a hearse instead of a common cart, which might be secured for much less money than the ordinary conveyance. The evidence certainly discloses no want of good faith in the executor in this matter, nor indeed anything that the most prudent and judicious man might not have done under like circumstances. With respect to funeral expenses, the Courts generally take into consideration all the circumstances of each case, and when executors have acted with ordinary prudence, they are not held personally liable. • So it may be said of the expenses of the last sickness. ' They appear extravagant: the proof, however, abundantly shows that all the items, including the surgeon’s bill, were no more than the usual charges for like services at that time. Such testimony is sufficient — 183 — to sustain tbe action of tbe executor in tbe payment of these expenses of the last sickness. The next complaint- made against the executor is, that he was interested in the purchase of the property in the San Francisco Saloon belonging to the estate. This is expressly prohibited by the statute ; and if the Court were satisfied that it was so, it might have declared the sale absolutely void — if third parties would not be affected — and ordered all the profits made from the retail sale of the liquors to be paid to the estate; or if it were more beneficial to the estate, could have affirmed the sale. In such case, the interest of the estate is alone to govern the action of the Court. The sale should not be set aside if to do so would be in any wise prejudicial to the interests of the estate. Whether the executor was interested or not, it is perfectly evident from the testimony that the property was sold for its full.market value, and the money received from it paid to the estate. Under such circumstances the Court should not arbitrarily set the sale aside, whether beneficial to- the estate or not. However, that the executor was interested in the purchase is an assumption hardly, warranted by the evidence. On the contrary, the persons who had the best opportunity of knowing — those to .whom the sale was in fact made — testify that he was not; that he did not become interested in the saloon until after the appraisement and sale to Lovely and Vucovich. It is true, an' executor or administrator subjects himself to suspicion when he acquires an interest in property belonging to the estate, even after sale to third parties — and hence, it should always be avoided; but there is nothing in the law to prohibit him from becoming interested after the estate has ceased to have an interest. The testimony in this case shows that Medin did not purchase from the estate and was not interested in that sale, but he acquired an interest after a sale for its full value to Lovely and Vucovich. An interest so acquired, although it may create the suspicion that he was interested in the first sale, is nevertheless not sufficient to authorize setting it aside. The Court ruled correctly, then, in refusing to disturb the sale. Again: The contestants complain that proper diligence was not used to collect the debts due the estate. It is not, however, shown — 184 — that any solvent debt has been lost by the default of the executor. The attempt to do so proved abortive. As no value was placed upon these debts in the inventory, they must be considered desperate ; and in such case the burden of proof is upon the contestants, when it is sought to make the executor liable for loss resulting from such cause. In the case of Rowan v. Kirkpatrick et als., (14 Ill. 12) where an attempt was made to hold the executor liable for uncollected debts, the Court used this language, which is pertinent here: “ Prima facie- his (the executor’s) estate should not be held liable for any of the uncollected debts which were inventoried as desperate. Upon clear proof that any debt was lost through his carelessness or want of attention, his estate should undoubtedly be held responsible; but an administrator, who has acted in good faith in the collection of the debts due his intestate, and intended fully and fairly to discharge his duty in that respect, ought not — if his intentions have been decided by a reasonable judgment in the matter— be charged with the loss of debts which he has failed to collect. While care-must be taken to guard against an abuse of their trusts, by administrators, Courts ought not to hold them personally liable upon slight grounds, lest suitable persons be deterred from undertaking these offices.” An executor or administrator should certainly make all reasonable effort to collect the debts due the estate; but he should not involve it in litigation for claims which, in his judgment, could not be collected. If the debts be inventoried as desperate, he should not be held for any uncollected, unless it be shown that they were lost by his want of proper management or effort. We do not wish to be understood as holding that no effort should be made to collect even desperate debts; on the contrary, the executor should make all reasonable exertion to collect them. If, however, no collections are made, the burden of proving that they might, by proper effort, have been collected, lies upon those who seek to make the executor or administrator liable for loss. In short, prima facie, all debts which are inventoried as desperate, or to which no value is attached, are to be treated as uncollectable— hence, it is incumbent upon those claiming that they were solvent — 185 — and collectable to establish that fact. In this case, as before stated, the contestants have not shown that any collectable debt has been lost by the fault of the executor. Pie should not, therefore, be held answerable. So, too, it is claimed the executor had no authority to pay the assessment levied upon mining stocks belonging to the éstate. It is admitted that the assessments were actually levied; that they were paid by the executor; that if not paid, the stocks would have been sold; and that the stock was worth more than the assessments levied at the time of payment. Under the statute of this State the executor and administrator have the possession and control of both the real and personal property belonging to the estate, which it is incumbent upon them to manage under the direction of the Probate Court prudently and economically, always of course following the requirements or directions of the statute where any exist. The statute makes it his duty to care for and manage the estate. With the possession and full control of all the property of the estate in the executor or administrator, who is required to manage it with prudence and good faith, can it be said with any show of reason that he has not the right, and would not be justified by an order of-the Probate Court to pay any legal claim against the property, which if not paid would result in its loss to the estate ? Is it not the executor’s or administrator’s duty to pay all legal taxes levied upon the property of the estate, or will he be justified in permitting it to be sold to satisfy them ? Why is it not equally his duty to pay such assessments upon mining stocks as may be legally levied, and the payment of which is necessary to preserve it from sale ? To allow valuable stock to be sold for assessments less than its value, would' certainly subject an executor to the charge of misconduct. It is perhaps not his duty, nor do we think he would be justified in holding stock which is subject to assessments beyond such time as will be necessary to obtain an order of Court respecting it. Property of this kind, which is only an expense to the estate, should certainly be disposed of in some way, unless it be quite evident that it would be for the interest of the estate to hold it. But in such case an executor would certainly subject himself to liability for all loss unless he acted under — 186 — the direction of the Court; for his primary duty, it would seem, is to obtain an order to sell such property. But an order of Court, ordering him to pay all assessments, is a sufficient protection to him. It is, undoubtedly, within the jurisdiction of the Probate Court to order such payments; and if the executor act in obedience to such order, it would surely be inequitable to charge him personally with payments so made, or refuse to allow them as just payments made for the estate. The Probate Court in this case ordered the-executor to pay all assessments then due, or which might thereafter become payable on the stock. In accordance with this order a large sum of money was paid, and now it is claimed that his claim for the money so paid should not be allowed. Had he not acted under an order of Court we should be induced to think it should not be allowed, for payment of the amount of assessments here charged would, if not paid by order of Court, be unwarranted under the circumstances. Why the Probate Court should have made an order so general and sweeping is entirely inexplicable, unless that tribunal was imbued with the notion so prevalent among the people in general at that period, that mining stocks, no matter how unprofitable at the time, or how heavy the assessments upon them, were nevertheless not to be disposed of for any reasonable sum, because of the priceless value which it was supposed they were to possess in the immediate future. No matter how indiscreet, the order was made, the executor acted in accordance with it, and we see no just grounds upon which his estate can be chargeable with the money so paid. But it is argued by counsel that no such order was ever made. The attorney who obtained it, however, testifies positively that it was, and that no assessments were paid until after it was made; that he saw the order among the papers of the Court after this difficulty between the contestants and the executor had occurred. It does not appear to have been entered at length on the minute-book of the Court, as required by section two hundred and eighty of the Probate Act; but such neglect on the part of the Clerk of the Court can in no wise affect the rights of the executor, nor render the order less effective as a protection to him. It was no fault of his that the order was not properly entered, and if it were in fact — 187 — made, (and upon the testimony we have no alternative but to believe that it was) that is sufficient for his protection. The order itself, it is true, was the best evidence, but not being able to find it among the records of the Courts, secondary evidence of its character should certainly be allowed in a case of this bind. The Court below received the evidence of the attorney who obtained the order upon that matter, and properly so. As to the items embraced in the second account, it is only necessary to say that they have once been settled and allowed by the Court; and section three hundred and thirty-nine of the Probate Act makes such settlement final and conclusive unless reversed on appeal. The language of this section received the consideration of this Court in the case of Lucich v. Medin, (3 Nev. 93) where it was held that a decree of settlement closed all further investigation in the respect to all accounts allowed, except where some error or mistake appeared upon the record. There is nothing upon the record showing that any item of the second account was allowed by mistake, or that the Court committed any error in so allowing it. The decree settling it, it must therefore be accepted as conclusive of the legality and justice of every item in the account. There is an item in the third account which we think was improperly allowed: that is, the claim of three hundred and seventy-five dollars allowed Aud & Beebe, for attorneys’ fees. This charge was for service rendered in a controversy between the executors themselves — Medin opposing the qualification of Millatovich, his coex-ecutor, who was afterwards admitted. The services rendered were for Millatovich. In contests of this kind between executors, it is certainly not just or proper that the estate should be charged with the expense. It is true, a portion of this fee was previously paid and allowed by the Court, and this perhaps led Medin to believe that the balance would also be allowed; but, properly, he should have been held liable for the entire fee. That a portion of it has been paid, by the order of the Court, by the estate, is no reason why it should be charged with the balance. This item was, we think, improperly allowed, and must be stricken out. 1 We are unable to see the force of the objection that Medin is — 188 — not a competent witness on Ms own behalf. He certainly does not come within the exceptions mentioned in section thirteen, (Stats. 1864-5, 77) as that section is interpreted by this Court in the case of Roney v. Buckland, (ante ) ; nor does the case of Wilcox v. Smith (26 Barb. 37) bear out the position of counsel for contestants, for it will be seen by that case the code of procedure, which in New York, as in this State, allows parties, although interested, to testify, has no application to proceedings in the Surrogate Court; whilst in this State it is expressly declared that the mode of proceeding prescribed by the Practice Act shall be applicable to probate proceedings. (Probate Act, Sec. 295.) His own testimony is not of course sufficient to support any item of expenditure exceeding twenty dollars without a voucher, (Probate Act, Sec. 234) unless it be shown that vouchers were in fact taken, but were lost or destroyed, and no new vouchers could be obtained. As to the matter of costs in the Court below, the contestants are certainly entitled to them. It appears that upon this contest the Court below deducted the sum of sixteen hundred and seventy dollars, the most, if not all, of which was properly deducted. To this extent the contestants prevailed in the lower Court, and are entitled to their costs. Section four hundred and forty-one of the Practice Act declares: “ There shall be allowed to the prevailing party in any action in the Supreme Court, District Court, and Probate Court, his costs and necessary disbursements in the action or special proceeding, in the nature of an action.” The section three hundred and eleven of* the Practice Act in no wise conflicts with this section, for it only provides for the allowance of costs in cases not otherwise provided for by law. The order of the Court below striking out the cost bill filed by the contestants was therefore erroneous and must be reversed. The item of three hundred and seventy-five dollars allowed Aud & Beebe must be stricken out, and the decree in this respect is ordered to be so modified; otherwise-, it is affirmed; respondents to pay the costs of this appeal. WhitmaN, J., did not participate in the foregoing decision.