1877 March Term. Mills & als V. & als. Same V. & als. debts consisted of a debt of one thousand dollars, due by Thomas Bradford, payable January 1st, 1863, and paid by him to the said executors on the 3rd of that month; also of a debt of ten thousand dollars, due by the Exchange hotel company, and paid on the same Mills' ex's day, out of thể proceeds of the sale of the property of that company, sold at or about the same time; also of nineteen thousand dollars, par value of one hundred Lancaster and ninety shares of the stock of said company owned by the testator, which said sum of money was paid to the said executors out of the proceeds of said sale; also of a debt of nine thousand two hundred and sixtyeight dollars and eighty-eight cents, paid by Charles Y. Morris to the said executor on the 12th day of March 1863, being the principal and interest of a bond due by him to the testator; also of a debt of one thousand three hundred and sixty dollars, due by note of L. W. Glazebrook, and paid to said executors on the 12th of March 1863; and of a debt of one thousand three hundred and thirty dollars, due by note of same debtor, and paid to said executors on the 19th of April 1864; also of twenty-six thousand six hundred and sixty-six dollars and sixty-seven cents, paid to the said executors on the 29th of April 1863 by Lancaster and other purchasers of the Exchange hotel property, to extinguish ground rent reserved on a lease from said testator to the said hotel company; also of one thousand five hundred dollars, paid to the said executors on the 1st of September 1863, on stock of the testator in the Midlothian coal mining company. Besides these matters, others were embraced in the controversy in its commencement and progress, which seem to have been since abandoned; and therefore little or nothing will be said of them in this opinion, except to name them. They are: 1st, the Leigh street property, VOL. XXVIII-57 1877. March Term. V. & als. Same V. & als. which was sold by the said executors on the 28th of October 1862, just two and a half months after the death of the testator, for the enormous sum of one Mills & als hundred and twenty-eight thousand two hundred and Mills' ex's thirty-six dollars and thirty cents-more than double the amount at which it had just before, in the same month, been appraised. Everybody who heard of the Lancaster sale was no doubt astonished at the amount it produced, which was more than enough to buy as much gold, dear as it then was, as the property would have produced before the war. And everybody who was interested in the sale seemed to be well pleased with it, with the exception, perhaps, of Mrs. Robinson, a daughter of the testator, who lived on the property at his death, and had, therefore, to look out for another home after the sale. And complaint was made in the argument that the sale was made in such haste, that almost before the funeral bell of the testator ceased to be heard, the bell of the auctioneer was ringing to give notice of the sale. A plain answer to this (if any be necessary) is, that the testator made ample provision for his said daughter, which did not include her continued residence on his Leigh street property, which constituted the greater and by far the most valuable part of his real estate, but was producing little or no rent at his death, and was not capable of producing much, in comparison with the great value of the property. The testator, by his will, expressly desired that his executors should sell all his real estate not otherwise specially disposed of, in such manner and on such terms as they might deem most advantageous; and it was obviously their duty to sell the Leigh street property as soon as it could possibly be done consistently with giving of due notice of the sale. It could only be sold for Confederate money; and the 1877. March Mills & als V. & als. Same V. & als. whole purchase money, large as was the amount, was paid in cash, and the greater part of it was soon in- Term. vested in eight per cent. Confederate bonds. After the war was over, and after this controversy was commenced, the objection seems for the first time to have Mills' ex's been made, that the sale and conveyance of this property were invalid, because only two of the three executors nominated in the will joined in making them. Lancaster But they were made by the only nominated executors who had then qualified, and who had endeavored in vain to procure a furlough for the other nominee, Thomas V. Robinson, who was in the army at the time of the testator's death, and continued there during the war, to enable him to return home for the purpose of qualifying also. It would not be difficult to show that this objection is not well founded in law. But it is now unnecessary to do so, for reasons before stated. Secondly, fifteen thousand three hundred dollars, the amount of the bonds of the Midlothian coal mining company to the testator, were paid by that company to the said executors on the 18th of November 1862. There is now no complaint as to any payment made to the executors before 1863; though there would seem to be no difficulty in showing the propriety of receiving this payment; but it is unnecessary to do so. I will now proceed to consider the controversy still remaining in the case in regard to the liability of the said executors on account of Confederate money received by them after the 1st of January 1863, in payment of debts due their testator, and invested in Confederate bonds as aforesaid. That liability depends upon two questions, viz: 1st. Whether the executors had power to perform the acts complained of; and 2ndly, Whether, in perform March Term. Mills & als 1877 ing them, they acted in good faith, and in discharge of what they believed to be their duty as executors? If these questions can be answered in the affirmative, then no such liability exists, and of course, in that case, there is no liability, on account of those acts, on the part of any of those who paid the money to the executors. V. Mills' ex's & als. Same V. Lancaster & als. First, Had the executors power to perform the acts complained of? To receive the Confederate money paid to them, and invest the same in Confederate bonds as aforesaid-supposing the acts to have been done in good faith on their part and in discharge of what they believed to be their duty as executors? We have only to read the will of Nicholas Mills to be able to answer this question, with great confidence, in the affirmative. And our conviction to that effect will become still stronger, if possible, when we do what a court of construction must always do; that is, place ourselves precisely in the situation of the testator when he wrote his will, look at all the circumstances which then surrounded him, and read and construe his will in the light of those circumstances. He was an old citizen of Richmond, where he died. and probably had always lived; was very wealthy, owning at the time of his death, besides real estate and slaves of great value, stocks and debts due him, of large amount, and other property; his whole estate being valued at upwards of $400,000. He was an intelligent gentleman, of business capacity, and retained his faculties unimpaired to the time of his death. He seems to have had no immediate family living with him when he made his will, or afterwards, except, perhaps, his widowed daughter, Mrs. Robinson, and two of her children, who were both grown up. But he had a large number of children and grandchildren, 1877. March Term. Mills & als V. & als. Same V. & als. who, or most of whom, needed his assistance at the time he made his will, and of his death; though he had provided largely for his children by advancements previously made to them. These children and grandchildren were the main, and almost the only, objects Mills' ex's of his bounty in his will; and he was obviously anxious to dispose of his estate in such a way as to do them the most good, and afford them the speedy and Lancaster regular relief which they needed; some of them being feme coverts, others unsuccessful managers apparently, and most of the grandchildren (all of them but three) infants. In this state of things, it was all important that he should select the most trustworthy persons to be his executors, especially if he devolved on them the many and various trusts made necessary by the state of his family and property, and of the extraordinary times which then existed. It was also important that he should invest these executors and trustees with the amplest power and discretion in the execution of his will. He made his will on the 17th of October, 1861, six months after the war had commenced, and when it had become flagrant. He lived nearly twelve months after the date of his will, and until the 12th of September, 1862, when he died. We were then in the midst of the war, and Confederate money had become the only currency; for which only could property be sold; and in which only could debts be collected. The testator continued to manage his own affairs after the date of his will, and until his death, and during that period he collected in Confederate money large amounts of debts due him in good money, including some which were well secured by liens on real estate, and he invested the money collected, or most of it, in eight per cent. Confederate bonds. Some of these collections were made a short |