Mills' Adm'r v. Talley's Adm'r

Hinton, J., delivered the opinion of the court. The only question to be determined in this case is the liability of Talley’s administrator for the uncollected balance of a due-bill which was lost by the improper conduct of the attorney to whom it was handed for collection, in failing to sue within the proper time, and afterwards in altering said due-bill. An executor or administrator is usually regarded as standing in the position of a gratuitous trustee, and is only responsible for plain acts of negligence or misconduct imputable to himself. Hence, where the executor or administrator, in the exercise of good faith and ordinary discretion and care, intrusts claims due the estate to competent counsel in good standing for collection, he is not liable personally for any loss occasioned by the negligence .or misfeasance of such attorney, even if the attorney should collect the money and apply it to his own use and become insolvent. Schouler’s Ex’ors and Administrators, §321; Wharton on Negligence, 2d ed., § 520; Raynor v. Pearsall, 3 Johns. Chy. R. 584; Christie v. McBride, 1 Scam. R. 75; 2 Lomax Ex’ors, 388. He qualified as administrator of Joseph Talley in January, 1870, and within a month thereafter placed a due-bill of A. W. Nolting (the cause of the dispute) for $1,000, dated June 12th, 1860, and [363] received from Ms attorney in September, 1870, $600, wMch had been collected on this claim. Now, applying these familiar principles to the facts of the case, it is clear that this administrator was guilty of no fault in the selection of counsel. The attorney selected was a lawyer of acknowledged ability and of fair reputation, and the administrator had the right to rest with confidence in the belief that he would do all that was necessary to prevent the claim from running out of date, and to insure its collection, until some circumstance arose to cast suspicion on his conduct. And we must therefore hold that there was no fault imputable to the administrator, either in the selection or retention of his attorney, until he was made aware of the fact that he had allowed this claim to run out of date without bringing suit. But the failure of the attorney to bring suit within time fixed his liability for the debt, and as soon as the administrator became aware of that fact, it became his duty to discharge his attorney, and seek to make the money out of him. Exactly when the administrator ascertained this fact does not appear. It is not improbable, although it is insisted otherwise, that it was somewhere between February, 1873, and March, 1876. Conceding, however, that it was not until March, 1877,. when he certainly learned not only this fact, but the additional fact that White had undertaken to change the due bill to a bond by interlining the words “ witness my hand and seal,” it certainly then became his duty to promptly dismiss him, and to institute proper proceedings to recover damages against him. If he had done so, it by no means appears that the money might not have been then made out of him. He was certainly not openly and notoriously insolvent"; and it is shown in this record, by the testimony of the witness Wad dill, that he made a debt of $650 out of him as late as the early part of that year. Under these circumstances it was the duty of the administrator to have [364] brought suit against his attorney, and for his negligence in this respect he must be held liable. The decrees appealed from must be reversed, and the cause must be remanded to the circuit court of Hanover •county, to be further proceeded in to final decree in accordance with the views herein expressed. Decrees reversed.