Payment in good faith at its maturity in Virginia in Confederate
currency of a debt contracted there in 1860 to be paid there in
1862, and the receipt and acceptance of the same by the creditor,
discharged the debt.
In 1860 two brothers, executors of the will of their father, who
had resided in Virginia, and had died there, contracted in that
state to convey, under a power in the will, real estate of the
testator on the payment, among other things, of a bond then
executed by the purchaser for the payment of a sum of money in
1862. One of the executors resided in Indiana, and continued to
reside there during and after the close of the war. The other
received in Virginia in 1862 (by request of legatees under the will
who accepted the same in payment of their distributive shares)
payment of the bond in Confederate money, and accounted for the
same to the court in 1864. In a suit commenced by the surviving
executor against the executor of the obligor on the bond to recover
payment of the bond.
Held that the payment to the resident
executor in Confederate currency was a valid payment.
This was a bill in equity to set aside a deed made by Samuel
Lipse, executor of Moses Lipse, and to obtain payment of a bond
executed by Glasgow's testator in his lifetime. The case is stated
in the opinion of the Court. For the understanding of the points in
the argument, it is sufficient to say that Moses Lipse died in
Virginia before the war, leaving several children, among whom were
David H. Lipse, residing in Indiana, and Samuel Lipse, residing in
Virginia; also leaving real estate and a will
Page 117 U. S. 328
empowering his executors to sell real estate, and naming David
H. and Samuel as his executors, both of whom qualified; that in
1860, the executors agreed with one Spears, in Virginia, to convey
a tract of testator's real estate on receiving, among other things,
payment of a bond then executed by him to them for the payment of a
sum of money in 1862; that David continued to reside in Indiana
during the war, and Samuel to reside in Virginia; that Spears' bond
was paid to Samuel in Virginia in 1862, after its maturity, and
Samuel presented his accounts in the proper court in 1864, showing
receipt of such payment and division of the estate, which accounts
were allowed and settled; that Samuel afterwards died, and David H.
as surviving executor brought this suit against Spears' executor,
to recover the sum alleged to be due on the bond on the ground that
the payment in Confederate currency was void.
Judgment below for the plaintiff, from which appeal was
taken.
Page 117 U. S. 329
MR. JUSTICE FIELD delivered the opinion of the Court.
This case comes before us from the Circuit Court of the United
States for the Western District of Virginia. The facts out of which
it arises are briefly as follows:
In December, 1859, Moses Lipse, of Botetourt County, Virginia,
died possessed of considerable property, real and personal, in that
county, and leaving twelve children surviving him. His will, made a
few days before his death, after providing for the payment of his
debts, directed that all his property should be sold by his
executors, and the proceeds be equally divided between his children
and their representatives, certain sums advanced to them to be
deducted from their respective portions. He appointed his sons
Samuel and David executors. The will
Page 117 U. S. 330
was proved and admitted to record by the county court of the
county at its May term of 1860, and in June following the executors
qualified and gave a bond with sureties in the sum of $30,000.
In August of that year, the executors sold the personal
property, and on the tenth of September following, the real
property. The sale of the latter was made to Charles C. Spears, a
citizen of Virginia, and the contract of sale was signed by the
parties. The property was supposed at the time to consist of 371
acres, but the quantity was to be definitely ascertained by an
actual survey. The consideration agreed upon was $38 an acre, of
which one-third was to be paid on the third of October, and the
balance in two equal annual installments on the third of October,
1861, and on the third of October, 1862. For these deferred
payments Spears was to give his bonds, and the executors agreed to
place him in possession of the property by the following Christmas,
and to make him a good title for the same when all the purchase
money should be paid. The survey made disclosed a larger number of
acres than was estimated, carrying the purchase price to $14,858.
Of this sum Spears paid one-third on October 3, 1860, and gave his
two bonds for the balance as agreed.
Early in 1861, Spears joined the Confederate army, leaving his
affairs in the hands of William A. Glasgow, of Botetourt County, as
his agent, and during the year, Glasgow, as such agent, paid the
first bond, though not on the day of its maturity, but $3,000 at
one time and the balance at another. Samuel Lipse, the resident
executor of Moses Lipse, called upon Glasgow each time to collect
the money, and in his accounts charged himself with the amount as
of the day the bond was due. The cash payment was made in lawful
money, and there is no evidence that the first bond was otherwise
paid. It is in proof that the notes of the Confederate States did
not become generally current in Virginia until after this period.
Of the money received on this bond and of other moneys in the hands
of the resident executor, the distributive shares belonging to
Page 117 U. S. 331
nine of the twelve legatees, the number then residing within the
Confederate states, were paid to them and received without
objection. Three of the legatees, including the co-executor,
resided in Indiana, and the shares belonging to them remained
charged to the resident executor in his account, which was
subsequently examined by the commissioner of accounts, reported to
the court, and approved.
Before the second bond became due, Spears was killed in battle.
His will, appointing Glasgow his executor, was at the November term
of the county court in 1862 proved and admitted to record, and
Glasgow qualified as executor. When the second bond became due, or
about that time, Glasgow called upon the resident executor, and
offered to pay it in Confederate notes, but the executor expressed
some unwillingness to receive the payment then, and a desire,
before doing so, to see some other persons, referring to the
legatees. One witness testified that Glasgow at that time, counted
out the Confederate money, and that the executor replied that he
would not take it; that it was of no account, but said that he
would take Glasgow's check on the Fincastle Bank for the amount,
observing, in the hearing of the witness that he thought he could
get Fincastle money for the check -- that is, notes of the bank at
that place. It is of little moment, however, whether the refusal of
the Confederate notes was or was not accompanied by expressions as
to their value. Twenty days afterwards, the resident executor
called upon Glasgow at his office, and said that he was ready to
receive payment of the balance due for the land; that he had seen
most of the heirs, and that they wanted their money. Glasgow
thereupon gave him a check for the balance on the Farmers' Bank at
Fincastle, which was near by, and he accepted it without objection.
He claimed nothing more than the principal, saying that, as Glasgow
was ready to pay it when due, he ought not to pay interest. This
check was deposited by the executor in the bank, and against its
amount he subsequently drew his own checks. These were paid in
Confederate notes. It does not appear, however, that any
inducements were held out by Glasgow to the executor to take those
notes in payment, or that any ignorance existed on
Page 117 U. S. 332
his part as to their true character, or that Glasgow made any
representation as to the kind of currency in which the check should
be paid, or that any complaint was made to him that the bank had
paid it in those notes. As between Glasgow and the resident
executor, the transaction was considered closed. The last bond of
Spears was paid, and, as the conditions of sale were complied with,
the resident executor, in April, 1863, nearly six months
afterwards, executed a deed of the land to Glasgow as executor of
Spears' estate, reciting therein the entire payment of the purchase
money to the executors of Lipse, deceased, "part by the said Spears
in his lifetime, and the balance by the said Glasgow, his executor,
since his death." The power to sell the land being vested in the
two executors, their joint execution of the deed would have been
necessary to transfer the title had not the act of the Legislature
of Virginia of the 5th of March, 1863, provided that whenever any
fiduciary residing in that state had been authorized to exercise
any power, or to do any act jointly with one or more fiduciaries
residing within the limits of the United States (meaning thereby in
those states without the limits of the Confederacy), it should be
lawful for the fiduciary resident in the state to exercise such
power and do such act without the concurrence of the nonresident
fiduciary, and that the act should have the same force and effect
as if it was the joint action of all the fiduciaries.
McRae v.
Farrow, 4 Hen. & Munf. 444.
The resident executor at once proceeded to distribute the money
received on this last bond. Eight of the legatees took their
respective shares without objection, as did five of the six
children of a deceased legatee. Soon afterwards the resident
executor rendered his account, showing the disposition of the
estate, the moneys received, the expenditures incurred, the debts
discharged, and the payment of their respective shares to eight of
the legatees, and to five children of another legatee. The account
examined by a commissioner appointed by the court was approved, and
his report confirmed. Thus the estate was closed except as to the
payment of the shares to the three legatees residing in Indiana,
and the payment of the sixth part of the share of another legatee
to one of his children. It is not
Page 117 U. S. 333
necessary to inquire as to the disposition made of these unpaid
legacies, for the suit is not to compel their payment. It is said
that the interests of two of them and of one of the children of the
deceased legatee were confiscated under proceedings of the
Confederate government. If such were the case, it would not affect
the validity of the payment of the last bond of Spears, nor of the
settlement by the court of the resident executor's account
previously rendered.
This settlement remained unquestioned from the confirmation of
the commissioner's report on November 14, 1864, until January 25,
1879, more than fourteen years before this suit was instituted. Its
object is to charge Glasgow, as executor of Spears, with the second
and third installments of the purchase money of the land and compel
him as executor to pay the same, with interest, to David H. Lipse,
the surviving executor of Moses Lipse, the resident executor having
departed this life, and to cancel and set aside the deed conveying
the land, executed by the latter to Glasgow, as above stated; and
if the installments should not be paid by Glasgow, to have the land
sold, and the proceeds applied to their payment, the complaint
alleging that those installments never were paid, that Confederate
notes were given in pretended payment and were received under
compulsion, with sundry charges of deceit and fraud on the part of
Glasgow to carry out a scheme to obtain possession of the property
without discharging the just claim of the estate thereon. None of
these charges of deceit, fraud, and compulsion is sustained by any
evidence. On the contrary, the conduct of the resident executor and
Glasgow is shown to have been that of honorable and just men. No
deceit was practiced nor any undue advantage taken by either of
them.
It is undoubtedly true that an executor is chargeable with the
utmost good faith in dealing with the estate entrusted to him. He
cannot wantonly neglect the property, or squander it by useless
expenditures, or suffer it to go to waste, without incurring
personal liability for the consequent depreciation. Nor can he call
in good investments when the money is not needed, nor accept the
payment of debts for less than their face when the full amount can
be recovered without unnecessary delay
Page 117 U. S. 334
and expense; nor in depreciated currency when better currency
can be had, unless it can be advantageously used in meeting
expenses, discharging debts, paying legacies, and the like. In all
such cases, he would be chargeable with a devastavit. He may also
take payment of a debt, when not secured, in the best money he can
get, when its safety requires its collection. Under these
limitations, he must do what, under the circumstances and
situation, prudent men, managing their own estates, would do, and,
when doubting, seek the authority and direction of the proper
court. With respect to transactions during the late war, he could
not, under any circumstances, invest in Confederate securities
property or lawful money already in his hands.
Horn
v. Lockhart, 17 Wall. 573;
Lamar v. Micou,
112 U. S. 452,
112 U. S.
476.
If he fail in the discharge of his trust, he is liable to
parties injured thereby, as all trustees are liable in such cases,
and parties combining and confederating with him to despoil the
estate in any way may be held as participants in the devastavit and
breach of trust. We may even concede the doctrine declared by the
Court of Appeals of Virginia, that a debtor who pays to an executor
in depreciated currency a debt payable in gold or its equivalent,
knowing at the time that the currency is not needed for the payment
of debts or legacies, or other uses of the estate, and that the
safety of the debt does not require its collection, may be also
charged as a participant in the devastavit.
Patteson v.
Bondurant, 30 Gratt. 94. The present case does not come under
the doctrine. It falls within the class where, for debts payable in
lawful money, the depreciated currency of the country where they
were contracted and the executor resides can be used at its face
value in payment of legacies, and therefore may be accepted by him
without a breach of trust. The notes received had in October, 1862,
to a great extent superseded the use of coin, and become the
principal currency of the Confederate states. All business
transactions there were had with reference to them. They were a
standard of value according to which contracts were made and
discharged. Having therefore an exchangeable value, they were
sought for by residents within
Page 117 U. S. 335
the Confederacy. The resident executor there, however, hesitated
to accept them in payment of the last bond of Spears, which, being
made in October, 1860, must be considered as payable in lawful
money, and he consulted the wishes of legatees in Virginia, among
whom the greater part of the money was to be distributed. They
desired him to take the notes, and received them in discharge of
their distributive shares. So far as those legatees are concerned,
their approval of his action was shown by their expressed wishes,
and their acceptance of the notes. They, at least, are estopped
from questioning the propriety of his conduct.
Glasgow's check called for dollars, and when it was received on
deposit, and placed to the credit of the resident executor, it was
a matter between him and the bank whether he would receive
Confederate notes for the amount. Had he been unwilling to receive
them, and the bank had refused to give any other money, he should
have notified the drawer, and, by returning the check, asked to be
restored to his original position; but so far from taking that
course, he received them, and therewith paid the legatees in
Virginia. Glasgow was informed when he gave the check that they
wanted their money, and were willing to take what he had offered.
So if we treat the check as intended to draw such notes, there is
no ground on which the validity of the payment can be assailed, so
far as the estate of Spears is concerned.
It is not necessary for us to determine whether or not the act
of Virginia allowing a resident fiduciary, authorized to execute a
power or do an act jointly with one or more fiduciaries residing
out of the Confederacy, to exercise such power or do such act
without the concurrence of the nonresident fiduciary, was a valid
exercise of the legislative power, so as to justify the resident
executor in executing the deed. It is a sufficient defense to the
present suit that the entire purchase money for the land was paid,
for it is upon the alleged nonpayment of the last two installments
that the suit rests. He had full authority to collect them, and it
was not necessary that his co-executor should join in the receipts.
Edmonds v.
Crenshaw, 14 Pet. 166. If the deed did not pass the
title, a
Page 117 U. S. 336
court of equity would, after such payment, compel those holding
the legal title to execute a sufficient deed.
As to the rights of the legatees, including the co-executor,
residing in Indiana, only a word need be said. If they have just
ground to complain of the resident executor, and their rights can
at this date be judicially enforced, they must proceed by suit
against his representatives, or, excepting the co-executor, against
his sureties.
Morrow v. Peyton, 8 Leigh, 54;
Lidderdule v. Robinson, 2 Brock. 160. When such suit is
brought, it will be time enough to consider how far the settlement
of his accounts can be impeached, and how far any remedy is
affected by alleged laches. At present, these questions require no
answer.
The decree of the court below must be
Reversed, and the cause remanded with directions to dismiss
the suit.