1. It is, without question, the law that an executor or administrator should take some notice in his inventory of the interest of the deceased in any partnership of which he was a member. He cannot, it is true, in his inventory ordinarily do more than make an estimate, since the control of the assets, books, etc., is with the survivor. But it is his duty to mention, for the information of all concerned, that there is such an interest and give as definite a statement of its amount and nature as he can. If he fail to do this when he has the information, it is a mark of suspicion, and authorizes a keen and suspicious inquiry into his acts in the premises. But we do not see that this justifies us in assuming any arbitrary value *31of the partnership assets. The balance sheet of a dissolved partnership, in which all assets are put down at their nominal value, and which is, in fact, but a summary of the books with no estimate even of the value of the stock, or debts owing, is a very unfair standard. It appears by the defendant’s answer, that the stock on hand was sold for more than the balance sheet puts it, and no reasonable man who has the least experience of human affairs, can, for a moment, believe that such a lot of debts on three thousand persons could be collected without considerable losses and expenses. In justice to both sides, it is, in such cases, only fair to treat the balance sheet as a mere general guide. If there be a very marked and extraordinary discrepancy between that and the final settlement with the survivor, some explanation of the fact should appear, especially if the executor took no notice of the interest in his inventory.
2. We do not think the final settlement with the survivor was unreasonably delayed. Assets, such as are indicated in the balance sheet, with $93,000 00 of debts due from the concern, might very well require till 1860 to be put in' condition for an intelligent and definite final settlement. It is to be noted that, before this final settlement was had, the survivor had paid over to the executors large sums. What took place in 1860 was the adjustment of the relations between the survivor- and executor and the division of the assets on hand in kind, and we do not think it at all an unreasonable delay. In truth, it is fair diligence to get such a mass of assets in condition for a settlement in such a space of time. The amount actually received by the executor is all that he is to be charged with. It is true, if there be assets that he ought to have received, he is chargeable for neglect in not getting them. But it is for the complainants to show the existence of such assets. The executor, in his answer, declares that, on a final settlement between himself and the survivor, he received so much. Is there any proof that he received more, or that he ought to have received more ? It is complained that Mr. Hall was not charged with interest; but this does not appear. We have only the final result. The mode by which the eon*32dition of the affairs of tbe firm and of the relation of the survivor and executor to it was arrived at, does not appear. It was the duty of the executor to see to it that the settlement was a fair one. If he neglected to insist on all the rights of the estate, that was a breach of his sworn duty. But to charge him with such a breach, the fact of such failure should appear. We do not think the discrepancy between the balance sheet and the $128,000 00 actually received, is so great as to cast the burden of proof upon the executor.
3. We agree that there are various acts of the executor, in the management of these assets, that are suspicious and approach to the very verge of illegality. Were we sitting as arbitrators, or as a jury, to decide the questions between the parties, we are not prepared to say that we would have been satisfied with the bona fides of some of these manipulations; but as none of them were actually illegal, and as the good faith of the executor in each of them was a question for the jury, we cannot say the jury acted illegally in believing, from the evidence, in that good faith.
4. The legal title to the partnership assets was in the surviving partner. He had a right to sell, and the defendant a legal right to buy. The relation of each of them, as trustees, was, however, such as that their acts are to be closely scanned, and only to be sustained when they are clearly in good faith. So, as to the change of the notes. The defendant had a legal right to settle his own note. The change of it for the other notes, it was the duty of the jury to scan closely and to judge suspiciously. But if it was, in truth, fairly done, and, at the time, it was a prudent act for the estate, it was not illegal. So, also, of the investment in Confederate bonds. It would be very harsh to hold a man, situated as was the defendant, to any other rule than that indicated by the Judge in his charge, to-wit: the skill and prudence of prudent men in the same situation. It was impossible to get the funds to New York for investment, and the executor was driven to invest them here as prudently as possible. It appears that he kept regular books during the war of each of these transactions. These *33books were open to inspection. The whole investigation was upon the answer of the defendant, and we do not think the verdict of the jury is chargeable with prejudice or mistake in recognizing the good faith and honesty of the whole. If the acts of an executor are illegal, his good faith will not protect him, but if he keep within the bounds of legality, his liability is a question of good faith, to be decided by the jury.
5. Previously to the Code, 1st January, 1863, we had no rule in this State requiring trustees to select any particular mode of investing funds in their hands. It was their duty to invest them- safely, prudently; each case stood upon its own facts. For this reason we think the investment in Confederate bonds, approved as it was by Judge Worrill, was not illegal; that, too, was a question of bona ftdes and turned upon whether it was apparently a prudent investment at the time.
6. As we have said, we do not intend, b;f our judgment, to express our approval of the acts of the executor, nor to say that we, if we had original jurisdiction, would have done as this jury has. But under our opinions of the nature of our jurisdiction we dp not think this verdict is an abuse of the powers of the jury over the facts. We recognize the right of the defendant to be allowed counsel fees for advice and assistance in his management of the estate, and we see no objection, even on a bill for accounts, if the rights of the complainants are complicated and conflicting so as to require the judgment of the Court to protect the trustee to allow fees. But there is nothing of that here. It was a simple question of account— a charge of devastavit — and there is no more propriety in charging the plaintiffs with the counsel fees of the defendant than in any other suit in which the plaintiff fails. It would, we think, be a bad policy to put such an hindrance in the way of heirs or legatees seeking their rights, that they shall pay for counsel to aid the executor in resisting their charge of a devastavit. But we will not grant a new trial on this ground. We shall simple direct the Court to put the defendant on *34terms. He must consent to give up this credit, or the verdict must be set aside.
