#### William Doud *and wife, vs.*Jordan Sanders, *surviving*e*xecutor of A. Smith and others.*

*The estate of a deceased executor, who obtained judgments for debts due to his testator’s estate, and afterwards gave credit to the debtors, who were perfectly solvent during his life time, became insolvent after his death,, was held not liable to the legatee for the loss so incurred.*

*The boohs of the testator shewed an uncollected open account against an individual who was proved to have rendered him large professional services. Upon this fact; upon proof of the general great diligence of the executor, and the circumstances of the estate of the debtor (deceased) the executor’s estate ivas held not accountable.*

In this case, the commissioner by his report had charged -.the estates of John Lide and Malachi N. Bedgegood who were executors of Smith, with certain debts due to Smith at the time of his death, on the ground of negligence. To this report, Evans, solicitor for the administratrix of Lide, and the-executors of Bedgegood, filed the following exceptions.

1st. '' here was no proof that the judgment against Wot. Fields, was lost hy the negligence of John Lide.

2d. His estate is not chargeable yfitli the debts of Samuel Wilds and Elisha Parker,

3d. The estate of Bedgegood ought not to be charged with the judgments against McNeill and Cook, against M‘Neill and against Miles King.

These exceptions were overruled hy the commissioner, and, the solicitor appealed from his decision. His honor Judge Thompson, on hearing the evidence and argument, dismissed the appeal and confirmed the commissioner’s report.

Notice of appeal was given and a motion was made to the court of appeals to reverse the decree of the circuit court, and. *%o*sustain the exceptions to the commissioner’s report.

The evidence reported hy the commissioner was as follows viz: — The evidence in this case applicable to the first exception is as follows: — “ William Fields was indebted to Smith, on a debt due 1st January 1810. He was sued and judgment obtained in 1811. In July 1811, John Lide, executor of Smith, gave directions to the sheriff tg levy thq exception and *278stay till further orders. The sheriff did levy on a negro, and stayed all further proceedings. Fields at that time was in *good*circumstances, and not embarrassed. Lide died in the spring of 1813. Fields continued to be solvent for a long time after Lide’s death, and there was no proof that a *Aúlla bona*had ever been returned against him; and the solicitors for complainant and defendant both stated that they had collected debts from him within two or three years past, but all the parties considered Fields insolvent at this time.”

The evidence on the *second*exception. “ It appeared from the examination of Smith’s books, that Samuel Wilds and Elisha Parker were indebted to him. There was no evidence why these debts were not collected. It was not admitted by all parties that Mr. Lide had most faithfully discharged his duty as executor, and was exceedingly diligent in liquidating and *securing*the *debts of*his testator. The estates of Wilds and Parker were solvent and were abundantly able to pay, and are so now. It was also stated and net denied, that Judge VHlds whilst at the bar, had done much professional business for Smith; that he was appointed one of Sl*-!i’s executors, but died soon after, without qualifying, that ids estate was very much indebted, and there was an universal disposition, of the creditors *o*indulge, and by such indulgence, his estate was saved from insolvency.”

Third exception. “ Until the death of Lide, Bedgegood did not interfere with the estate of Smith. Lide died in the spring of 1813, and Bedgegood the 4th July, 1$14. During this time, he stayedthe executions against M'Neill and Cook and Xing. All the defendants were then good. M'Neill was sheriff of Chesterfield, or his office had just expired; Cook- was a man of considerable property; and Dr. King was a physician in ex. tensive practice and owned a house and lot in Cheraw, besides slaves. M‘Neill has lately become insolvent. Cookremovedto the western country with his property long since Bedgegood’s death, and Dr. King died probably insolvent; but it was admitted that he left a house and lot in Cheraw, and there was xxo proof that there was any older judgment against him than this.”

*279
      *Evans,*for appellants.

This application Is on the part of Iegate.es, not of creditors of Smith If the executor Lide had collected the money due by Fields, he must have put it out again to interest, and he could have vested it on no better security, for the proof is, that during the whole of Lide’s life, Fields was abundantly solvent. An executor is not liable at all events for the goodness of the security on which he invests money of the estate; it is sufficient if he acts with diligence and good faith, 3 *Ves.*839, *Eq. Rep.*At the death of Lide, the estate went into the hands of the surviving executors, and for their neglect, Lide’s estate is not liable, 1 *Eq. Rep.*

Bedgegood, who survived Lide about a year, and managed the e tate after his death seems to have been guilty of no greater neglect; he only indulged those in whose hands the debts were to all appearance perfectly secure. If there was culpable negligence any where, it seems to have been in the third executor, Saunders who had survived Bedgegood.

As to the debt of Judge Wilds, we think that the proof of* the general exceeding diligence of the executor, (who is only charged with having lost two debts out of a very great number) together with the fact that Wilds had performed much professional business for Smith, affords fair ground to presume that one demand was intended to be set off against and extingushed by the other. *Cited Tol. law of Ex.*428, 1 *Pr. Wms.*141.

*Ervin,*contra.

As to the duty and liability of executors, cited *Tol. law of Ex.*426. Whatever may have been the general diligence of the executors, it is clear that they were not diligent in the particular instances now in question.

Chancellor *Desaussure.*

In this case the commissioner, by his report, charged the estates of John Lide and Malachi Bedgegood, who were the first acting executors of Smith, with certain debts due to Smith at the time of his death, on the ground of laches in recovering them. The debts were, one against Fields, on judgment, two on judgments ágainst M'Niel and Cook, and M'Niel and Miles King, and one against the late Judge WTds and Elisha Parker, on open account.

*280The executor, Lide, was proved to have acted with *great*diligence in his executorship; he ordered a levy to he made upon the property of Fields; which was done; and he then, granted a stay of execution- The debtor, Fields, was then solvent. Judge Wilds was appointed executor in the will, but did not act; and he had demands against Smith for professional services performed while he was at the bar. Under this con* sideration, and the general wish to indulge the estate of Judge Wilds, Lide did not have the debt liquidated. It appears that Lide proceeded to obtain judgments in the other Cases, and died in about 18 months after he qualified and acted as executor. Bedgegood then undertook the administration; gave a stay of execution in the case of M‘Niel and Cook, .and died in about 13 months after he qualified. The debtors were all then good;' hut have since become insolvent. The concern of Smith was' extensive; was carried on in the country for about 15 years.,. These are the only bad debts, and the application to make the estates of Lide and Bedgegood liable, comes from the legatee. Under these circumstances, I am of opinion it would be a harsh measure to make the executors liable.

They are always protected by this court where they have? acted conscienciously “and for the best.” *Eq. Rep.*124. If any one should be made liable, it was the surviving executor. Sanders, who died insolvent.

Some confusion arises in the statement of the case from blending the debts of Wilds and Parker, as if it had been a joint debt on open account; which could not well be, unless they had been engaged in a joint concern. No papers which have been brought to the view of the court hate stated the fact explicitly, and I take that to have been the case. Upon the whole» however, I do not think the executors should be made liable, a? by the decree of the circuit court.

It is ordered and adjudged that the decree of the circuit court be reversed.

Chancellors *Gaillarc/, Wcties,*and *.Tames,*concurre,cS--