#### *Catharine Gayden et al. vs. Spencer Gayden & wife et al.*

In genera], one administrator is not bound for the default of his co-administrator, unless where their acts are concurrent.

But, at law, both may be jointly liable on their bond. . This Court, however, discriminates and charges each with his own proper defaults. They are both hable, at law, upon the administration bond, both being princiapls. In Equity, they are regarded only as the sureties of each other.

Where the surety to an administration bond is before the Court, the Court will give complete relief, according to its usual course, by affording a remedy against the surety— vide S. P. the cases of O’Neall vs. Herbert, and M’Bee vs. Croker, in this vol.

*Lancaster July*Term, 1838.

The facts of this case sufficiently appear from the different decrees which have been pronounced on it. It was first heard by Chancellor Dunkin, who made the following decree, July Term, 1838.

*436George Gayden died, intestate, in the fall of 1818, leaving a widow and seven children. He owned a tract of land, on which he resided, worth about $600: and his personal estate, exclusive of three negroes, was appraised at $298 62;, the negroes were apprased at $900.

Fanny Gayden, the widow of the intestate, and Peter Flemming, administered on the estate. The bill was filed ■ on 5th February 1838, for an account of the personal estate, and partition of the realty.

It may be as well, in the first place, to dispose of the question of partition. The defendants, William Brown and Alston Clark, claim the lands under a purchase at Sheriff’s sale. It appeared that in August, 1820, General Blair, the former Sheriff of Lancaster District, sold the land, under several executions in his office, against the administrator and admintratrix of George Gayden, deceased, to William M’Kenna, who conveyed all his right, title and interest to Fanny Gayden. In 1823 it was sold by Abraham Perry, Sheriff of Lancaster, under execution against Fanny Gayden, It was again purchased by Mc-Kenna, who conveyed to Gayden and wife, (Fanny Gay-den having intermarried with Spencer Gayden,) and the defendants hold under mesne conveyances from them. The validity of the sales by the Sheriff, did not seem to be disputed; but, if it had been, X think the- testimony was satisfactory, and that, under the settled doctrine of the Court in this State, a good title to the land of the intestate was vested in the purchaser. Then it was said, that when M’Kenna conveyed to Mrs. Gayden, he was paid from money belonging to the e,state, and that the defendants were aware of it. It is admitted, in the answer of Mrs. Gayden, that á portion of the money paid to Mr. M’Kenna, belonged to the estate, but there was no evi-that any person was aware of this, except Mr. Gayden himself. It may have been a mal-administration *pro*tanto, but cannot affect the title of the purchasers.

On 10th November, 1818, an order was granted, by the Ordinary, for the sale of the personal estate of George Gayden, deceased; on 21st November, the personal estate was appraised at $1298 62, and the 11th December it was sold for $823 71. The negroes were purchased by the *437administratrix at $600, being $300 less than the appraised value. I should not hesitate tQ set aside this sale, if it were important, or if it had not been entirely disregarded by the subsequent proceedings. But the negroes were all levied upon, twelve months afterwards, under executions against the administrator and administratrix. Two were sold by the Sheriff, and no question was made in regard to them. The third, Maria, escaped from the Sheriff, and came, or was placed, in the possession of Elij ah Gayden, another of the defendants.

Maria was clainied by Elijah Gayden, under an adverse possession of eighteen years,- originating in the circumstances' about' to be stated. It was alleged, in his answer, that the intestate.being indebted to him, the sum of $360, agreed to secure him by. a mortgage of Maria; and if the sum should not be paid on 21st Judy 1820, the defendant should become the owner of Maria-,, on paying an additional sum of $100. The execution of the,mortgage, dated 21st July 1818, was proved by the subscribing witness, who also proved that Elijah Gayden gave to the intestate, at the same time, his note for $100. This was all the testimony on the subject of the contract. In August, 1820, the defendant paid $100 to the administratrix, and has been in possession of Maria from about that time. The impression left on my mind from the evidence, is that this negro was not worth • more than $100.. I think it also very clear that, if Maria was not delivered to Elijah Gay-den by the administratrix, he took possession, as owner, with her knowledge and acquiescence. Whether the title was or was not perfected I think- the character of Elijah Gayden was thenceforth fixed, and that he is entitled to the protection of the statute.

It is alleged in the bill that Fanny Gayden, the admin-istratrix, and the mother of the complainants, and her husband, Spencer Gayden, are insolvent, that the sureties to the administration bond are also insolvent, and that the slovency of Peter Flemming, the administrator, is doubtful. <

I am not prepared to say that any mal-administration has been established against Peter Flemming. ' But, by entering into the administration bond, joint administrators be*438come sureties for each other, *Lucas vs. Curry’s Execu*tors, 2 Bailey, 406 and so far as the administratrix may he in default, I think Flemming is responsibible. What, then, is the case presented as to her'? Mrs. Gayden received $100 from Elijah Gayden, for which she is accountable. The personal estate, exclusive of the negroes, was worth less than $400, and was of such a character, generally, as is used and consumed in the maintainance of a family. Her husband died in 1818, and left her with seven children, the complainants, the youngest of whom was about three years of age, and the eldest twelve or thirteen years old. The widow was entitled to one third of the estate, and, I suppose, she was authorized to apply to the support of the children what might be necessary, from their share. It was in evidence, too, that the intestate left debts unpaid, to a considerable amount in proportion to his means: strictly speaking the complainants may be entitled to an account; but the interest of all parties would seem to be subserved by putting an end to this unprofitable litigation.

It is ordered and decreed that, as to the defendants, Brown and Clark, the bill be dismissed, with costs — as to the other defendants, that the bill be dismised, without costs.

From this deeree, there was an appeal to this Court. This Court delivered the following opinion, December Term, 1838, by Chancellor Johnston, viz:

This Court concurs with the Chancellor in dismissing the bill as against Clark and Brown, who purchased the land. The Chancellor states, that the executions bound the land of the intestate, and, therefore, the entire fee passed to the purchasers at Sheriff’s sale. We concur also in so much of the decree as dismisses the bill, as to Elijah Gayden. But we think the plaintiffs were, strictly, entitled to an account from the administrator, and although they may find the investigation unprofitable, if they insist on it, it cannot be denied them. In taking the account, however, we think proper to state, that, in equity, one administrator is not bound for the acts of another, in which he did not concur: this doctrine was ruled in 4 Eq. R. 76 92, and was again held by this Court, at May Term, 1838, in *439the case of *O' Neall vs.*Herbert, to which I refer for the reason of the decision. See also, Toller, 472 and 2 Story 620 and 1280 *et seq.*In stating the accounts against the administrator allowance should be made for sums necessarily expended, and property consumed, in the support of the children; distributing the allowance according to the circumstances of each child, when these happen to differ. The profits arising from the sources of the respective children should be set off. So much for the general accountability of the administrators. There are some other points upon which this court are desirous, that further inquiry be made upon the circuit. It appears, obscurely, from what is before us, that George Gayden died in the fall of 1818, and that an inventory was made of part of his personality on the 21st of November of the same year, amounting to $1298 62, which, together with some other property omitted in the inventory, was sold on the 11th of December, for $823 71; that, at this sale, Flemming, the administrator, purchased, at the appraised rate, property to the amount of about $31, and that Mrs. Gayden, the administratrix, purchased at $738, property which had been appraised at $1127. Upon comparing the appraisment with the sale bill, it appears that every article purchased by strangers brought the appraised value; or rather more; but that the three negroes which were appraised at $900 were bid off by the administratrix (and they were the first property sold, and all in one lot;) for $600, the residue of her purchases, amounting to $138, were of articles appraised at $271. Supposing these sales fair, they placed in the hands of Mr. Flemming, at the time the sale bill fell due, which was October 11th, 1819, the amount of his purchases, $31; in the hands of Mrs. Gayden, the amount of her purchases $738; and in their hands, conjointly, the amount due from other purchasers, of $54: in all $823.

The debts which appear to have existed against the intestate, exclusive of that to Elijah Gayden, amounted to about $445. Add the debt due to Elijah Gayden, in August, 1821, for $260, and the whole of the debts did not much exceed $700; and yet beginning in August 1820, but a little over 7 months from the time the sale bill became due, and not much, exceeding a year and a half from *440the time of the sale, the whole of this property, together with a tract of land worth $600; property, by appraisment, and'valuation, worth near 1900 dollars, was all sold by the end of 1821 for debts, not much exceeding 700 dollars; while the administrators had more than enough to meet them in their own hands,

. If we deduct 400 dollars, which seems to be the value put by witnesses on the negroes mortgaged to Elijah Gay-den, from the purchases made by Mrs. Gayden; and add to the balance the 100 dollars, which he paid her when he took possession of the negro; she was still in possession of 438 dollars which, with the sums due by her co-administrator and the other purchasers, would amount to 523 dollars, tb meet the other creditors; which was more than sufficient for .that purpose. On the other hand, if the. purchases made by the administration, at their own sale were avoidable of course, (which until lately I néver thought questionable, but which is now questioried, or if they were not fairly madé, then a question may arise, whether the administrators are not chargeable for having prevented the sale ordered by the Ordinary, by interposing their own bids, and subjected themselves to the imputation of having, by voluntary acts of mal-administration, deprived the estate of funds to pay the debts; and whether they are not liable to acqount for the true value of the property, sacrificed in consequence of their neglect, (see *Wibber vs. Higgins,*MSS. at Columbia, on appeal, November 1819 and *Ten Eyck vs Hart,*2 J. C. Report.) Upon hone of these questions, is this court disposed to give an opinion at present; preferring to let the facts be moré clearly brought before the Circuit Court on another trial: and to obtain the benefit of its opinion upon then! Of course, the .case may be varied by the evidence to be ■in-introduced, and it would be improper to anticipate it by any opinion here.

The account will not be taken until the trial on the merits is had. Let the cause be remanded to the circuit Court.

J. JOHNSTON.

We concur,

David Johnson, W-. Harper, B, F. Dunkin.

*441Under the above opinion of tbe Appeal Court this cause was again heard on the circuit, before Chancellor Johnston, July Term, 1841. His decree, upon the rehearing, is as follows:

It is unnecessary to state this case. It was heard by Chancellor Dunkin and, upon an appeal from his decree, which states the circumstances of the case, a new trial was ordered. I have heard the cause again, and little additional light has been obtained, in the way of evidence, with regard to the fairness of the purchase, by the admin-istratrix, of the negroes, which is the most rational point in the case. There is some contrariety in the proof: a witness was examined, who stated facts sufficient to condemn the purchase, but his veracity was so impeached as to render it unsafe to forward a decree upon his testimony; on the other hand, circumstances came out which rendered it probable that if the three negroes had not been sold together, they would have brought more, and which tended to show, that these things were mistaken by those, who concurring with the defendants, were of opinion that Will *&*Lett were worthless and would have brought nothing if they had not been put up with Maria. The two negroes were sold at Sheriff’s sale about two years afterwards, when there could have been but little alteration in them, and brought 280 dollars. Of course, the difference between the Sheriff’s sale, and that made by the administrators was decidedly against the former; no credit was given at the Sheriff’s sale, and there was no warranty of soundness, or of title.

The times had grown worse, and yet these negroes which, according to the defendants’ witnesses, it was necessary to get off, by throwing them into a lot with another negro of acknowdedged value, sold at the price stated, to a gentleman of experience and judgment. What is remarkable is, that while Lett, who was rather preferred by the defendants’ witnesses, sold for but $110, and Will, who was perfectly scouted at, brought $170; and it was proved by the overseer, who superintended him, that he worked well, and was, notwithstanding his deformities, half as valuable as a perfect negro of his own age. Really, it does appear to me to be a mockery to enter into an enquiry into the fairness, or unfairness of a purchase made by a trustee *442at his own sale. Here was a purchase, made 23 years *ago;.*the plaintiffs were infants at the time, and unless the unfairness was practiced in the most clumsy manner, the evidence of it could hardly reach them. . Most of the witnesses of the sale are probably dead. It would be difficult for the children to prove corruption, in the purchase. It is easy for the trustees to call upon persons present, and who really seeing no stratagem, must testify, that as far as they observed, the sale was fairly conducted; and yet, in this very case, we have the clearest evidence that three negroes, who on the 21st November, were valued by seven appraisers at 900 dollars, were bought by the ad-ministratrix, for herself, on the 11th December, at 600 dollars; and not only so, but every article she bought at the sale, was purchased at nearly the same depreciation. You cannot get at the means, by which this result was produced, but you know of loss sustained by the estate, from internal evidence, that cannot be mistaken. It is because the wrong may be done, when the device cannot be detected, that justice and policy alike demand, that no agent, or trustee, acting for others, shall be allowed to act for himself. A principle which forbids the public land agent to become a bidder, the Sheriff from buying at his own sale, the factor whom you entrust with your cotton from making you a return, that he has taken it to himself, as a purchaser, and the administrator, who undertakes to sell, and is, therefore, in the transaction, a trustee to sell, from bidding for himself. The principle shields him from temptations of self interest, which, from the infirmity of our nature, will oftener trample over duty than yield to it. It is an eternal truth that no man can serve two masters: the trustee pursues the path of duty with most fidelity, and least destruction, when it does not cross that of self interest. I should set this purchase aside, if it could serve any purpose, but if it were set aside, the effect of that would be, to restore the negroes purchased, to the estate. What has been done amounts to, that Maria has been accounted for by the decree, establishing that, she belonged, in fact, to Elijah Gayden: Will and Lett were levied on, and sold at their full value to satisfy debts of the intestate. So that if the plaintiffs insist on "dividing the purchase, and making *443the administrators account for Will and Lett, the account is rendered by shewing the sale by the Sheriff, and the application of the money. In the opinion of the Appeal Court, there were one or two suggestions, to which I have attended. One of them was, that if the administrators, by bidding at the sale, obstructed the sale, and prevented the accumulation of funds to pay the debts, they might possibly be liable for the loss the estate truly sustained. If the two negroes who really belonged to the estate, sold at Sheriff’s sale, as I think they did, at their full value, the estate sustained no loss by Mrs. Gayden’s purchase.

Another suggestion was, that if the real value of the assets was sufficient to pay the debts, the administrators might be held accountable for the value of the land, which was sacrificed, in consequence of their failing to apply the funds in their hands in satisfaction of the debts.

The debts of the estate, exclusive of costs, added to the necessary administration expenses, which were proved before me, amounted to about 410 dollars; charging the administrators with Will and Lett, 280 dollars, which they brought when sold by the Sheriff to Dr. Jones, and with the residue of the purchases at the appraised value, which was $302, the assets in their hands were, at the utmost, $580. Of course, on this trial, it was not required that the defendants should show every debt which existed, but only that there was such a degree of indebtedness as, compared with the means in their hands, could not probably be met by reasonable diligence. The proof was made, generally, that the estate was much involved, and particular debts were brought forward as specimens. The presumption is that there were other demands, equal to, and exceeding, the purchases of the administratrix, rating the purchases at ap-praisement prices. The creditors seem to have pressed before. In all probability the purchases made by the third person at the sale could be realized, on the whole, under these conditions. I do not perceive evidence of wilful fraud in the administrators in this matter.

I cannot therefore direct the court, in the account to be taken, to charge the administrators with the value of the land.

Let the account be taken on the ordinary principles. *444The question of costs is reserved. I cannot close the opinion, without observing, that there was no evidence whatever to show that the administrator, Flemming, concurred with Mrs. Gayden in her purchase of the slaves.

The complainants appealed from Chancellor Johnston’s last decree and moved to modify the same.

1. Because the decree should have made chargeable both administrators, with the value of the lands.

2. Because, Flemming, the administrator, should have ben chargeable for the negroes, as well as all the personalty bid off by Fanny Gayden, the administratrix.

3. Because the decree should have made chargeable the administrators (both,) with the whole, personally, at the appraised value, or at an appraised value, allowing them to be credited with debts, and necessary expenses, actually paid out.

And the defendants appealed, because the bill, as to Flemming, should have been dismissed with costs.

Curia, *per*Harper, Chancellor.

The principal question raised, with respect to all the grounds of appeal, was, whether, in the event of any balance being found due by the administratrix, Fanny Gayden, the administrator, Peter Flemming, will be liable for the amount. It is said, in the former opinion of this Court, that one administrator is not liable for the acts of another, in which he did not concur. As this seems to have misled, and perhaps was calculated to mislead the parties, we have thought it proper to give the subject a full and thorough examination. The doctrine, as laid down, is perfectly correct. In many authorities, as well as in the case of *O'Neall vs.*Herbert, referred to, it is expressly held, both with regard to executors and administrators, that they are not liable for each other’s acts. Though, at law, both may be jointly liable on their bond, yet this Court discriminates and charges each with his own proper defaults. It cannot be questioned, and has not been questioned, that, at law, both must be liable on the administration bond. At law, both are regarded as principals; but in equity, they are regarded only as the sureties of each other. But when the surety is before the Court, why should it not give complete relief, ac*445cording to its usual course, by affording a remedy against the surety'? The case of *O' Neall vs.*Herbert, has no application, whatever, to this matter ; though, in that case, it is expressly said, that co-administrators are sureties of each other, on their administration bond. It is true, that in the case of *Glen vs.*Connor, State Rep. Eq. 267, followed by that of *Teague vs.*Dendy, 2 McCord. Ch. 209, where a bill was filed against the principal, to which the sureties were made parties, the bill was dismissed as against the sureties. But in *McAbee vs.*Crocker, Mass. Book, (F. R. 19,) where one administrator was absent from the State, and only made a party by advertisement, it was held, that the sureties were properly made parties, along with the other administrator, and a decree was made against them. It is said in that case, by the Judge who delivered the opinion of the Court, “ In equity, the Court possesses all the powers to do exact justice between the parties. It. can examine the accounts, fix the administrator’s liability, and direct him to be pursued to insolvency, before the sureties shall be liable to process to enforce the decree.” To this it may be added, that if the surety should be compelled to pay the money, it can afford him the process of the Court, to reimburse himself, at any time there should appear to be a chance of his doing so. The Judge expresses his dissatisfaction with the case of *Glen vs.*Connor, and *Teague vs.*Dendy, and I concur in his dissatisfaction. They are opposed to the general maxim of equity, that all persons having material interests, must be made parties to the suit. Can it be doubted, but that the sureties have a most material interest in the subject of the suit against their principal'? Great injustice might be done to sureties, by failing to make them parties to a suit against an insolvent principal, who might feel little interest in defending himself. Plaintiffs would have no temptation to make the sureties parties, unnecessarily; and if they did so, might be made responsible in costs. I should think that, when they are made parties, the bill should allege the insolvency, or, as in *McAbee vs. Crocker,*the absence of the principal. But, whatever may be the merits of the cases of *Teague vs.*Dendy, and *Glen vs.*Connor, they cannot govern the present. The surety, the co-administrator, is before the *446Court, and properly before it; and it would be in contradiction. to all the maxims of the Court, to refuse full relief, which will put an end to the litigation, and send the complainants to litigate in another jurisdiction, where less ample justice can be done. In the cases of *Lidderdale vs. Ro*binson, 2 Brockenb. 164, and *Green vs. Hanberry's Execu*tors, id. 420, it was laid down by Chief Justice Marshall, sitting in chancery, as the unquestioned, law, that one co-administrator is surety for the other, and liable for his defaults. In the former case, where lie had not been made a party, the Chief Justice directed him to be made one; and in the latter, where he had not been a party to a former suit, held him not to be bound by the decree. Then, as to making the administratrix answerable for the true value of the land, this must be on the score, that the neglecting to make proper provision for the payment of all the debts, to satisfy which the land was sold, and to pay them, was such *laches*as to render the administrator liable for the full value. This is rather an unusual claim. Certainly, it is the business of the administrator to pay debts out of the personal estate; yet, circumstances may exist, though he should have funds in his hands, to render it convenient, or advisable to permit land to be sold for the payment of debts, without his being able to ánticipate that it would be sacrificed. But, whatever may be the merits of the claim, I am satisfied that it cannot be decided on until the account is taken. The decision will depend on the condition of the estate, its resoursces, the amount of debts, <fcc., which are to be ascertained by the result of the account. The Chancellor says, with respect to the debts, “proof was made, generally, that the estate was much involved, and particular debts were brought forward as specimens.” The presumption is, that there were other demands, equal to, and exceeding the purchases of the admin-istratrix. The same thing may be said of the *laches'*charged against the administrators, in failing to redeem the girl, Maria, who was mortgaged. And though the sale bill had fallen due, it does not follow that the money had been collected. The girl was, in fact, sold for $460, (a compulsory sale, if the administrators had not the means of redeeming,) and the Chancellor who first heard the cause, *447*says,*tliat lie could not fix her value at more than $400. When it is said, that the administratrix must he regarded as having funds in her hands, to the amount of her purchases, this must be taken to relate to the negroes, Lett and Will, for the title to Maria was in a third person. And with respect to these, as they were afterwards sold to satisfy the debts of the estate, it may be supposed that the administratrix was aware that she Gould not retain her purchases, and submitted that they should be so sold. The Chancellor concludes that they were sold at their full value; Maria being sold at $460, and Lett and Will at $280, makes the entire sale $740. The decree is affirmed.

Clinton, Solicitor for Complainants.

Wright, Solicitor for Defendants.

WM. HARPER.

Wé concur.

David Johnson, Benj. F. Dunkin.

Johnston, Chancellor, was absent at the last hearing of this cause in the Appeal Court.