#### Francis E. A. Whitlock *vs.*T. J. Whitlock, Administrator, and others.

*Administration of Estate*— Distribution.

Pending a bill for distribution, an administrator has no right to pay some of the distributees in full, and in that way, if losses should afterwards occur in the assets reserved, throw those losses on the other distributees exclusively. The account should be so stated that each distributee will sustain his proportion of the losses. *t*

BEFORE LESESNE, OH., AT UNION, JUNE, 1866.

The decree of his Honor, the Circuit' Chancellor, is as follows:

The intestate died on the 11th of April, 1859, and his personal estate was sold by the administrator on the 29th and 80th November in the same year, on a credit of twelve *166months, by order of the Court of Ordinary. This bill, for partition and distribution, was filed March 6, 1860, and at June Term, 1860, an order was made, directing the Commissioner to audit and state the administrator’s accounts, and report the balance for distribution, all questions affecting the partition of the real estate being reserved.

. The distributees are the plaintiff (who is the intestate’s widow) and his children by a former marriage, nine in number, of whom the administrator is one.

The Commissioners report, filed June 1, 1866, charges the administrator with the sale-bill and interest, thus making the amount for distribution on that day, $28,689.08. The plaintiff’s share of this (one-third) is $7,896.36; and each child’s share (one-ninth of two-thirds) is $1,754.75. Three of the children have been overpaid, namely, John Whitlock, Amanda Whitlock, and Melissa Harlan, who have received, respectively, $143.64, $512.52, and $1,107.30, more than their respective shares. Each of the other children has been paid in part. The balances due them are as follows, viz.:

To Nancy Whitlock, . . . $658 44

“ Eliza Durham, .... 1,214 72

*“*Ellinor Black, .... 1,418 78

*“*Mary Whitlock, . . . 338 47

*“*Sarah A. M. E. Whitlock, . 420 14

The widow has received nothing. The payments to the children were principally in property purchased at the sale.

The report states further, that on the 21st of September, 1863, the administrator received, in payment of J. B. Dillard’s sale-note and interest, the sum of $5,488.14, in Confederate States notes, and soon after invested $5,200 of it in Confederate States bonds. He also received during the same year $3,400 or $3,500 and $435, in payment, respec*167tively, of the sale-notes of E. Y. Gist and Thomas G. Fowler. And on the 23d March, 1863, he invested $2,000 in a note of William Bevis. He also produced before the Commissioner original sale-notes, amounting, without interest, to $179.65, and other notes and bonds, amounting in the aggregate to $2,056.03, without interest, as constituting assets of the estate, and stated that the remaining assets in his hands consisted of Confederate Treasury Notes.

The report allows the Confederate States bonds and Bevis’ note as investments, but none of the other credits claimed by the administrator.

Exceptions were taken to the report by the plaintiff and by the administrator, on various grounds, which it is not necessary to set out in full, as they were not all insisted on at the hearing. The Commissioner overruled all the exceptions, and stated the result of the account as follows:

Widow’s share anci balances due to five of the children as above stated, . Cb. $11,946 91

Invested in C. S. Bonds, $5,200 00

Interest from 21st of September, 1863, 979 77

William Bevis’ note, 2,000 00

Interest from 24th March, 1863, 445 66

-- 8,625 43

To be paid by the administrator, $3,321 48

Widow’s share, $7,896 36 27-8 per cent. §2,195 88

Nancy Whitlock, bal. 658 44 “ “ 182 94

Eliza Durham, 1,214 72 “ “ 337 59

Ellinor Black, 1,418 78 “ “ 394 30

Mary Whitlock, 338 47 “ “ 93 98

Sarah A. M. E. Whitlock, 420 14 “ “ 116 79

$3,321 48

The plaintiff contended, at the hearing, that no credit should be allowed the administrator on account of the investments, because his return to the Ordinary makes no mention of investment. But the Court agrees with the *168Commissioner, that if there were errors or omissions in the account rendered to the Ordinary, it was competent to correct them in this accounting. The administrator, moreover, seems only to have pursued a practice, very common, as I understand, throughout the State, though not to be commended, namely, charging himself with the entire amount of sales, when due, whether received or not, and then at the final account bringing in, by way of discharge, the sale-notes that might not have been collected, payments to dis-tributees, investments, &c.

The plaintiff also contended that, if credit for the investments be allowed, those investments being valueless, the loss should be shared by all the distributees, instead of falling only on those who have not received their shares. This would require reclamation to be made against the dis-tributees who have been settled with. But I do not think they are liable to such a claim. They have only received the shares to which they were entitled, and no favor was shown them by the administrator. They were paid, either entirely in their own notes for purchases, or partly in them and partly in Confederate notes. And their own notes must be put on the same footing with Confederate notes. Eor if they had gone through the ceremony of paying1 the amounts of those- notes to the administrator and then received them back, Confederate notes wopld have been the instruments employed. They may properly be regarded then as having .been paid in that currency. But the same currency was reserved for the other distributees, and invested in Confederate bonds and Bevis’ bond. If the plaintiff has any claim arising out of the failure of the fund reserved, the administrator alone is answerable for it.

This brings me to consider whether he is answerable. Unless he can show cause to the contrary, it was his duty, when he received money in payment of sale-notes, to pay it to the distributees instead of investing it. No reason has *169been assigned for his not paying to .the five children, who still have balances due them, their shares of the fund in question. They, however, make no claim against him. But as to the plaintiff) it appears that she went to her native State, Massachusetts, some time in the year 1861, before the fund was realized, and has remained there ever since. And, moreover, in June, 1862, the administrator was served with notice of proceedings, under an Act of the Congress of the Confederate States, to sequestrate any thing in his hands belonging to an alien enemy. A payment to her in Confederate notes would have been regarded as mockery, even admitting that remitting to Boston was practicable, and that the notice mentioned did not stay his hands.

On the part of the administrator it was contended that he should not be charged with interest up to 1866, seeing all the funds of the estate, not actually paid to the distribu-tees, excepting $179.65 in sale-notes, were in Confederate money in 1863. But the report says it was not proven so, and it does not appear what proof was offered on the subject. But admitting that it was so, it was the administrator’s plain duty to have paid out all the money to the distribu-tees; or if that was not practicable, then to have invested it as he did with respect to the sums invested in Confederate bonds and Bevis’ note. Upon the whole, the Court sees no reason why the balance reported to be due by the administrator should not stand. But in adjusting the amount of it in the present currency, the administrator should have all the benefit to which he may be entitled under the proviso to the fourth section.of the Ordinance of the Convention, passed on the 27th day of September, 1865, entitled “An Ordinance to declare in force the Constitution, &c., &c.,” and he may have a reference on that subject if he is so minded. It will be necessary, too, to modify the plan reported for the distribution of the said balance. If any of the five distributees named desire to participate in that *170fund, they must bring into the account what they have received on their shares. *Smith*vs. *Perdriau,*Eich. Eq. Cases, 223.

It is ordered and decreed, that it be referred to the Commissioner to recast his statement of the balance due by the administrator, and of the distribution of the same/in conformity with the views expressed in this decree, with leave to report any special matter.

The plaintiff appealed, on the grounds:

1. Because if the administrator is to be credited with the investments made in Confederate securities, the loss, under the circumstances, should be shared by all the distributees, and should not fall exclusively upon the plaintiff.

2. Because the administrator should not have been credited with the sum said to have been lent to Bevis; and if credited, the loss, if any, should fall upon the whole estate, and not exclusively upon the plaintiff

3. Because the decree is in other respects erroneous.

4. Because the account should have been so stated that the credits for investments claimed by the administrator should have been charged against the whole fund, and not against the plaintiff’s share.

*B. F. Arthur,*for appellant.

*Goudeloch,*contra.

The opinion of the Court was delivered by

Wardlaw, A. J.

The .testimony which was taken by the Commissioner has not been laid before this Court, and the course of the argument here did not require that it should have been. It must be taken as settled by the Commissioner’s report and the decree, that the investment n Confederate bonds was made of money received from I. B. Dillard, and that the note on William Bevis was, *171under the circumstances, a prudent investment, and was an investment of money belonging to the estate. It is admitted here that that note is now worthless.

These investments then constitute losses to which the estate has been subjected by misfortunes, which relieve the administrator from responsibility for them. But there is no necessity for transferring them to some of the distribu-tees in exclusion of others. When a bill for distribution was pending, the administrator was not at liberty to make computations and payments of his own head, whereby some parties are to be saved and others sacrificed. In fact, he did not make settlements with any of them; for, besides that he made investments, he still holds the notes which were given to him by those distributees who became purchasers at his sale. Those notes constitute part of the estate, and the credits which shall be entered on them depend upon the final adjustment of the shares to which those purchasers shall be entitled.

The whole amount of the estate must be ascertained — that is to say, every thing which the administrator has received or should properly have received from 'the rights or property of the intestate — and this amount must be carried to the debit of the administrator. The investments aforementioned and all other proper matters of dischai-ge must then be put to his credit, and the balance be distributed according to the rights of the several distributees. To the items of account the Ordinance mentioned in the decree may be applied, so far as the same is applicable.

It is ordered, that all matters of account in the case be referred again to the Commissioner; that he do make a report thereon in conformity with the directions hereinbefore contained, and that he have leave to report any special matter.

Dunkin, C. J., and Inglis, A. J., concurred.

*Decree reformed.*