1877. March Term. Mills & als V. & als. Same V. & als. estate of Nicholas Mills, and might have been sold by his executors under his will, just as his Leigh street property was sold; and the purchaser would thereby have acquired, with the reversion as incident thereto, the right to the annual rent from the time of the sale. Mills' ex's It might, and no doubt would have been contended in that case, that the executor Robinson, having qualified before that sale, would have been a necessary party to Lancaster the deed to the purchaser. A sufficient answer to such an objection no doubt would have been, that the deed having been executed, and the purchase money received by the two acting executors, and the other executor not having objected to such acts of his coexeutors, but, on the contrary, received one-third of the executors' commission on the amount of the purchase money, he thus confirmed what had been done by his associates and gave it the same effect in a court of equity which it would have had at law if all the executors had joined in the original transaction. But it is unnecessary in this case to consider that question, as there was no such sale of the reversion with the rent as incident thereto. Instead of that, Lancaster and others, purchasers and assignees of the leasehold estate in the Exchange hotel property, subject to the payment of the rent reserved in the lease, and with the right thereby secured to the lessees or their assigns to extinguish the rent by the payment of a sum of money in gross sufficient to produce an amount of annual interest equal to the annual rent under the lease, elected to extinguish the rent, and accordingly tendered to the executors, Mills and Howison, $26,666.663 cents, in current money of the Confederate States, being a sum sufficient to produce, in interest thereon at the rate of six per centum, the sum of $1,600, the said annual rent; and desired a deed March V. & als. Same V. & als. 1877 demising the property in fee simple and releasing the Term. rent and rent charge aforesaid. And accordingly the said executors received the said amount so tendered, Mills & als and executed such a deed. And the executors invested Mills' ex's the money so received in Confederate eight per cent. bonds, for the benefit of the legatees of their testator. No objection was ever made to this transaction by the Lancaster third executor, or any of the other parties concerned, until after the war; but, on the contrary, that executor in effect confirmed it by receiving one-third of the commission on the amount charged by the executors in their account, which was made out in the name of all three of the executors and returned, confirmed and recorded. So that the transaction stands on the same footing, in a court of equity, at least, as if all the executors had concurred in it from the beginning. But there is another view of this branch of the subject which seems to be conclusive of it. The effect of the will was to break the descent and devolve the title to the land upon the executors, instead of the heirs of the testator. The executors had not a mere naked power of sale, but a power coupled with an interest, and most important trusts. The estate did not devolve on the heirs for an instant, either at law or in equity, but enured at once to the executors for the purposes of the will. Mosby's adm'r v. Mosby's adm'r, 9 Gratt. 584. When, therefore, Lancaster and others elected to extinguish the rent by the payment of a gross sum, according to the terms of the lease, that gross sum became the property of the estate of Mr. Mills, and payable to his executors like any other debt due to his estate, and might have been received by any one or more of them. If it be said that all of the executors must join in the deed of release of the reversion, without admitting the necessity for any such joinder, it is 1877. March Term. Mills & als V. & als. Same V. &als. a sufficient answer to the objection to say that it would not follow from such admission that all of the executors must join in receiving the money. It is like the case of an executory contract for the sale of real estate where the vendor dies before the money is paid or the Mills' ex's estate conveyed. There the title to the purchase money is in the executors, while the title to the estate is in the heirs of the vendor. Either, any, or all of Lancaster the executors may receive the money, but all the heirs must convey the title. When the money is paid, a court of equity will, of course, if necessary, enforce a proper conveyance of the legal title. In this case the legal title was in the executors, instead of the heirs, by reason of the descent being broken. But, if the same principle applies, and all the executors must join in conveying the title, that does not make it necessary that all should join in receiving the purchase money. I think, therefore, that the payment of this sum of $26,666.66 cents to the executors stands on the same footing with the payment of any other debt due to the estate in good money and about the same time paid to the executors in Confederate money; and that the executors had power under the will to receive such payment as well as payment of any other debt as aforesaid; provided that, in so doing, they acted in good faith. And now I proceed to consider the other question on which the alleged liability of the executors. depends, viz: Secondly, Did the executors, in performing the acts complained of in this case, act in good faith and in discharge of what they believed to be their duty as executors? It was their sworn duty so to act, as well,as the condition of their official bond; and they say in their 1877. March V. &als. Same V. & als. answers and testify in their evidence that they did so Term. act; and they so account for their conduct in regard to each of their executorial transactions complained of Mills & als in this case, as plainly to show, if their account be Mills' ex's true, that such conduct has been blameless, however unfortunate, or even unwise, it may in some respects have been. The presumption is always against the Lancaster existence of fraud, and strong evidence is required to prove it; and testimony tending to show that no such fraud exists can be countervailed only by a decided preponderance of evidence on the other side. There is no charge of fraud contained in any of the bills against the executors. They were not speculators, and made no use, on their own account or for their own benefit, of any of the money received by them as executors, except the comparatively small portion of it to which they were entitled as their commission. They applied the money so received, as soon thereafter as could well be done, to the payment of legacies as far as that could be done, and invested the surplus in eight per cent. Confederate bonds, so as to make it as productive as possible, and as speedily as possible for the residuary legatees, most of whom were in great need. Neither of them had any motive, and certainly not anything like an adequate motive, to do wrong in the execution of his duties as executor. The only motive of that kind which seems to have been attributed to them in all these proceedings is, that they were interested in getting the largest possible amount of commission on their receipts, and were therefore interested in making their receipts as large as possible. A commission of five per cent., in Confederate money, on the amount received by the executors, is a matter of small value, taken altogether; but, divided among three (as it was), or even two executors, is very insig 1877. March Mills & als V. & als. Same V. & als. nificant-far too much so to warrant suspicion, much less to amount to proof of fraud on the part of the executors, who were gentlemen of high character for integrity as well as capacity, in whom the testator reposed the greatest confidence, as is plainly shown by Mills' ex's his whole will. One of the executors is a son and legatee of the testator, as also are his children residuary legatees; and it is obvious that he and they would Lancaster lose much more by the acts of the executors which are complained of, supposing them to result as they did, than he could possibly gain by his share of the commission. He was also an uncle of the other residuary legatees, and naturally desired to benefit them as well as his own children and himself. As to this executor, therefore, the decided preponderance of motive was the other way. But it is said that as Confederate money after the first of January 1863 was greatly depreciated in value as compared with gold, and continued more and more to depreciate until it came to be of no value, the executors committed a devastavit in receiving in that currency after that day payment of debts due to their testator in good money, and are therefore liable without regard to their motive. Though Confederate money at the date aforesaid had depreciated in value as compared with gold, it had depreciated very little, if at all, in regard to most other subjects. Gold had ceased to be currency, and for peculiar reasons had become an article of merchandise of extraordinary value during the war. It is necessary therefore in ascertaining its real value at any time during that period to compare it with other articles than gold, and especially with articles of prime necessity. Accordingly this court, in January 1869, when the controversy involved in this case was first before |