Noel v. Harvey

Mi-. Justice FisheR delivered the opinion of the court. This is an appeal from a decree of the probate court of Holmes county, made upon a bill of review filed in said court, for the purpose of reopening the final settlement of the execu [78] tors of the last will and testament of Daniel M. Dulany, deceased. It is, in the first place, insisted that the executors improperly credited themselves with the surn of five thousand dollars paid to William R. Miles for professional services rendered in a suit commenced in the superior court of chancery, by Dulany in his lifetime, against John S. Gooch and -others. It appears from the testimony that Prior Lea was originally retained as Du-lany’s counsel in the cause; that he removed from the State before the cause was prepared for trial; that it was pending in court at Dulany’s death ; that the executors, being wholly unacquainted with the facts of the case, and not knowing where the testimony could be obtained to sustain the bill, employed Mr. Miles at a contingent fee of five thousand dollars, he undertaking to take the testimony, to incur all the expenses necessary to take the same, and his fee to depend upon the result of the suit. It further appears that the amount in controversy was about $48,000; that the services were performed by Mr. Miles, and the case gained. It further appears that the contract was made in good faith. Under this state of facts, we are of opinion that the court below committed no error in allowing the credit. The only question in such case to be considered is, whether the services were necessary for the protection and interest of the estate, and whether the contract, under all the circumstances, was such as a prudent and cautious man would have entered into for himself. The proof brings the case within this rule. It is next insisted that the executors sold certain of the slaves of the testator without legal authority, and that they ought to iaccount for the slaves, or their present value, together with reasonable hire. The clause in the will relied on to sustain the ¡sale, is in these words, namely : “ I do further confer on my executors full power to sell any of my estate, real or personal, for the payment of my debts, should they think it necessary.” It appears from the evidence, that two of the executors purchased the slaves in question, and joined with the other executors in the bills of sale to the purchasers, or in other words, to themselves. The power conferred by the will on the executors [79] was a joint power, to be exercised by all of them who were qualified under the will. One executor, therefore, could not be a purchaser from himself and the others. His duty as a vendor required him to act in good faith, and to the best advantage for the estate. His interest as a purchaser too far conflicted with his duty in this respect to make it probable that his judgment as a vendor was properly and impartially exercised for the benefit of the estate in his hands to be managed. The sale is, therefore, void; and, being void, the slaves must be treated as so much of the estate not legally accounted for by the executors. The'purchase-money paid for -the slaves will be treated as so much money advanced by the executors to the estate in paying debts against it. The executors will be chargeable with the present value of the slaves, or the value of them at the date of the final settlement, at the option of the parties interested under the will, together with reasonable hire ; and the executors, if it shall appear that the purchase-money has been applied in the payment of debts, will be entitled to a credit for the same, together with interest from the time it was applied by them to the payment of the debts of the estate. These being the, only matters presented by the decree of the court below, and the record, for our consideration, the decree will be reversed, and the cause remanded.