Opinion
(December Term, 1839.)
1. It is not generally the duty of an administrator to volunteer in paying debts which his intestate has contracted as surety, and procuring assignments thereof to a trustee; and if in pursuing this unusual mode of administration he should happen to injure the estate committed to his charge, he would be obliged to show very special and sufficient reasons for his conduct before he could exonerate himself; and, therefore, he cannot ordinarily be charged with a want of due diligence in prosecuting a claim against his intestate's principal in not pursuing such a course.
2. Where an administrator has fully administered all the assets of an estate in his hands, he cannot be charged for not prosecuting a doubtful claim at his own costs, when the next of kin refused to incur the liability of costs.
THE bill in this case was filed by the next of kin of William Utley, against his administrators, for an account. Upon the hearing it was agreed between the counsel that the defendants had fully accounted with the plaintiffs, unless they were chargeable for a breach of duty in not having used due diligence to recover a sum of money for which their intestate had made himself liable as surety on a bond of John A. (439) Ramsay, and which the defendants had paid out of the assets of their intestate. It appeared that Ramsay died in September, 1821, and Philip Alston was appointed administrator of said Ramsay's estate in November, 1821. Shortly thereafter suit was brought against Alston, the administrator of Ramsay, these defendants as administrators of Utley, and Thomas Hill, also a surety on the bond, by the obligee, Conrad Staley; and at August Term, 1823, judgment was obtained thereon, but with a finding that Alston had fully administered. Staley took out execution, and levied it on the goods of Utley in the hands of the defendants, and made thereout full satisfaction of his judgment. Hill was insolvent, and every effort on the part of the defendants to procure contribution from him proved unavailing. No suit was brought by the defendants to recover from Ramsay's estate the money so paid by them as administrators. One of the plaintiffs, in her own behalf and as guardian for the other plaintiffs, did cause an action to be instituted in the name of the defendants against the administrator of Ramsay, in November, 1825. After this action had been pending some time a rule was obtained by the defendant requiring that the plaintiffs should give security for prosecuting the suit, or that the same should be dismissed. The defendants proffered to the plaintiff who had caused the action to be brought, to give the security required, upon being indemnified from the costs. This offer was not accepted, the security was not given, and under the rule the suit was dismissed.
The defendants, in answer to the charge of neglect, said that when Staley's judgment was obtained against them, it had been ascertained that the estate of Ramsay was utterly insolvent, and that any attempts on their part to effect the recovery of the money paid in satisfaction of this judgment would but run the estate of their intestate to costs without the least prospect of benefit to it.
W. H. Haywood for plaintiffs.
Badger for defendants.
We do not deem it necessary (440) to examine very particularly the testimony by which these allegations are supported, as the parties do not so much disagree respecting facts as they do upon the principles applicable to them. It is not questioned but that at the time the judgment was rendered against the defendants all the assets in the hands of the administrator of Ramsay were exhausted. It is also manifest upon the proofs that before that time judgment had been signed by creditors, with a finding that the administrator of Ramsay had fully administered for an amount exceeding the value of all the real estate, and sci. fas. had issued to subject that real estate to the satisfaction thereof. It appears, also, that after these sci. fas. had issued, on the petition of the guardian of the heirs, the country court made an order for selling the real estate on credit; that it was sold accordingly and all the proceeds distributed ratably among those who had so issued their sci. fas., and proved insufficient, by a large sum, to pay the amount of their judgments.
On the part of the plaintiff it is by their bill insisted that the defendants are chargeable because they might, by paying off Staley's demand before suit, or immediately after suit, and taking an assignment thereof to a trustee, have pushed the claim pari passu with the most diligent and successful creditors of Ramsay, and have either obtained a judgment against the administrator before he had legally discharged himself of the personal assets or, at all events, have come in for a share in the distribution of the real assets. It is possible that this course of proceeding might have been advantageous for the plaintiffs, and if it had been shown that it was one which was obviously required by a regard for their interests, and which the defendants had the means of pursuing, the omission to take it might have been pressed, with much force, as a defect of diligence. Certainly, however, it is not generally the duty of an administrator to volunteer in paying debts which his intestate has contracted as surety, and procuring assignments thereof to a trustee; and if in pursuing this unusual mode of administration he should happen to injure the estate committed to his charge, he would be obliged to show very special and sufficient reasons for his conduct before he could exonerate himself. It is not pretended that this course was (441) intimated or recommended, or even known to the defendants. It is not shown that they had reason to believe that the claim in their hands could be pushed with more celerity than it was by Staley. And it is not shown that they had any assets wherewith to make the purchase, other than the negroes of the estate; and if they had sold these to raise money wherewith to buy up the claim, and loss had been incurred, they could scarcely have saved themselves from a strict accountability therefor. A trustee owes perfect integrity and reasonable diligence to his cestui que trusts. There is not the slightest ground to attribute unfairness of purpose to these defendants; and if there has been any error on their part, it is not such as indicates the want of ordinary prudence. After the result of any course is ascertained, it may be easy to see how it might have been avoided by some different mode of procedure. But, in judging of the prudence of the course pursued, it is proper to throw out of consideration our knowledge of what was its result.
The next ground taken in the bill for charging these defendants is because they declined to prosecute the suit against Ramsay's administrator. We are entirely satisfied that this ground is not tenable. It is certain that the administrator had no assets, and the defendants would have been obliged, if they prosecuted the suit, to carry it on at their own costs. The estate had then been settled, they had nothing of it in their hands, and if those beneficially interested would not incur the liability of costs, it is against conscience that they should require the claim to be conducted for their benefit at the expense of the defendants.
Some other grounds have been taken by the plaintiff's counsel, in argument, which were not distinctly in issue by the pleadings, and with regard to which there are no proofs. They have prayed for that purpose an inquiry. We do not think, without some evidence rendering the matter alleged at least probable, that we should be justified in directing the inquiry asked for.
(442) It is the opinion of the Court that the bill must be
PER CURIAM. Dismissed, without costs.