79 Va. 602 | Va. | 1884
delivered the opinion of the court:
If, upon the principle recognized by this court in Mettert’s Adm’r v. Hagan, 18 Gratt. 231, and in Kendrick v. Whitney, 28 Id. 646, and other cases, the answer of the defendants, Way-land and wife, the appellants here, is treated as a cross-hill, then the case, as made by the pleadings, presents certain demands by the appellants against R. G. Crank’s executor, which are sought to he maintained on two grounds : 1. Upon the alleged devastavit of the executor in cancelling the sale made by him of the “Home Place,” at the price of $13.50 per acre, to F. P. Farish, and his alleged consequent liability for the difference between the amount of that sale and the price subsequently obtained;
In this view of the case, it is plain that the four decrees complained of, relating to the sale of the “ Home Place,” were interlocutory in their character, and that the decree of the 21st May, 1883, confirming Commissioner White’s report, and rejecting the claim of the appellants, growing out of the sale of the personalty, was a final decree. For it was not until that decree was entered that the case was fully disposed of, so far as the appellants were concerned. Harvey & Wife v. Bronson, 1 Leigh, 108; Ryan’s Adm’r v. McLeod and others, 32 Gratt. 367; Rawling’s Ex’or v. Rawlings and others, 15 Va. 76; Norfolk Trust Co. v. Foster, 78 Va. 413. The appeal was therefore taken in time, and the motion to dismiss must he denied.
Then as to the merits. The testator in his will valued the land at eighteen dollars per acre, which by a subsequent clause he changed to fifteen, and empowered the executor to sell it. Soon after the testator’s death it was offered for sale at public auction, and knocked off to the highest bidder at the price of thirteen dollars and fifty cents per acre. In this state of things, the executor being in doubt as to the proper course to pursue, determined to inform the legatees, who were numerous, and many of whom resided in distant states, of the sale that had been made, and to rfequest their .views respecting it. He was himself a legatee under the will, and the purchaser was his brother. Accordingly, he addressed a letter to the parties, in which, after referring to the sale, he said: “As the price fixed by Colonel Crank in his will was $15, I was in hopes the land would go to that, and so was Frank. The latter was trying to make it bring that price in good faith; willing to buy it for less, if he could, but also entirely willing that some one else should have it at $15. In this effort the land was knocked down to him at .$13.50. I honestly think this is as much as it will bring, still I am anxious to do all in my power to meet the
To this letter some of the parties—how many the record does not disclose—-replied, expressing emphatic dissatisfaction and positive objection to a sale at the price offered. None expressed approval, and accordingly the executor, with the assent of the purchaser, abandoned the sale. His action in this particular is assailed by the appellants as in bad faith, and as an unwarranted delegation to others of his duties as a fiduciary. But the charge is not sustained by the proofs in the record. In an honest effort, as he says, to sell the land for the highest price it could be made to bring, he had failed to realize the smallest sum at which the testator had valued it. Unwilling, however, to cancel the sale, and yet hoping that by another effort he might be able to obtain a better price, he sought the advice of the parties in interest, after candidly and fully informing them of the exact state of the case. Here, there was no delegation of duty or responsibility, but rather the evidence of an anxious desire, in a doubtful case, to consult their .wishes. Nothing was concealed; all
It is true that, by the course pursued, loss to the estate has resulted ; but, on the other hand, it is equally certain, from the record before us, that it cannot be attributed to bad faith on the part of the executor, or to the want of the reasonable prudence which is required of fiduciaries in the execution of their trusts. In Cooper v. Cooper’s Ex’or, 77 Va. 198, Judge Fauntleroy stated the settled rule to be, that if an executor honestly exercises the discretion conferred upon him he cannot be held liable for any loss which may have been occasioned by an honest error of judgment. And again, that “ good faith and ordinary prudence are all the law requires, or ought to require, of an executor or trustee.” Citing Elliott v. Carter, 9 Gratt. 541; Davis v. Harman, 21 Id. 194; Douglass v. Stephenson’s Ex’or, 75 Va. 747, and other cases. See also Elliott’s Adm’r v. Howell, 78 Va. 297. Here the executor was himself an interested party, and as evidence of his desire to faithfully perform his duty, he sought, as he had a right to do, the aid and direction of a court of chancery. Nor is there anything in the record to sustain the charge, for the first time made in this court, that he was indirectly the purchaser at his own sale, which was afterwards made under a decree of the circuit court. The sale was publicly made after due
It appears that George Crank, late of Albemarle county, died testate in January, 1865, and that in February, of that year, R. G. Crank qualified as his executor. At that time, the county of Albemarle was exposed to the raids of Federal troops, and
There is no error in the decrees complained’ of, and the same are affirmed.
Richardson and Fauntleroy, J’s, dissenting.
Decrees affirmed.