Judgment in each case affirmed. All the justices concurring. CONTEMPT.-THE RIGHT TO PUNISH FOR CONTEMPT is an inherent power of courts: In re Knaup, 144 Mo. 653, 66 Am. St. Rep. 435. It may be regulated, but not taken away, by the legislature: In re Robinson, 117 N. C. 533, 53 Am. St. Rep. 596. A court created by the constitution has inherent power to punish for contempt, which the legislature is not competent to abridge: Hale v. State, 55 Ohio St. 210, 60 Am. St. Rep. 691. CONTEMPT.-IF AN ACT IS A CRIME, as well as a contempt, it may be punished as a crime, notwithstanding the punishment for contempt: Note to In re Nickell, 27 Am. St. Rep. 319. But when the party is cited for contempt, he cannot be compelled as a witness to prove the contempt, and thus incriminate himself as to the crime: In re Nickell, 47 Kan. 734, 27 Am. St. Rep. 315. FLETCHER v. AMERICAN TRUST AND BANKING CO. [111 Georgia, 300.] EXECUTORS AND ADMINISTRATORS - POWER TO BORROW MONEY AND MORTGAGE LAND.-Under a will giving an executor power, should it be necessary, to raise money in such way as seemed best to him for the payment of debts, the executor has power to borrow money and to secure the debt by a deed or mortgage. EXECUTORS AND ADMINISTRATORS – BORROWING MONEY IN EXCESS OF DEBTS.-While an executor with authority to borrow money for the payment of debts has no power to borrow more than the amount of the debts, yet a lender has the right to presume that this power was properly exercised, and need not inquire into the amount of the debts, and if he loans more than the amount of the debts and the contract is free from fraud and collusion, the estate is bound. - EXECUTORS AND ADMINISTRATORS — BORROWING MONEY-ATTORNEYS' FEES.-An executor, having power under a will to raise money for the payment of debts in such manner as seems best to him, has authority to contract for the payment of attorneys' fees if the note given for the payment of money borrowed has to be collected by suit. P. F. Smith and R. R. Shropshire, for the plaintiff in error. W. D. Ellis and Gray, Brown & Randolph, contra. 301 SIMMONS, C. J. In August, 1892, Mrs. Fletcher made and executed a will. She died, and the will was probated in October of the same year. In her will she appointed her husband, A. A. Fletcher, her executor. The first item of the will was as follows: "I desire that all my debts, should I owe any, be paid as soon as practicable by my executor after my death. He is authorized to use any money that I may leave for this purpose, or, should it be necessary, to raise a sufficient amount of money for this purpose in such way as seems best to him." By another item of the will, the executor was given general power and control of the estate, with full authority to invest funds, change investments, make new investments, sell property, and buy other property. He was not to be required to make any inventory of the estate or to make returns as executor, and he was authorized to execute any of the powers conferred "without order of court and privately, without publication or public sale, and as to him seems best for the beneficiaries." Fletcher qualified as executor, and, as such, applied to the American Trust and Banking Company for a loan of money with which to pay off the debts of the estate, representing to the officers of the company that the debts amounted to four thousand seven hundred dollars. The company, on February 16, 1894, loaned him the money, taking his note, as executor, for four thousand seven hundred dollars, due February 16, 1899, and also a number of coupon interest notes, with agreement that upon a failure to pay any of these interest notes upon maturity the entire indebtedness should become at once due. The notes also stipulated for the payment of ten per cent attorneys' fees in the event the notes had to be collected by suit. To secure these notes the executor, as such, executed a deed to certain land in the city of Atlanta. The interest note falling due in August, 1897, was not paid at maturity, and, in February, 1898, suit was brought in the city court of Atlanta, against the executor, upon the principal note and upon the unpaid interest notes. The plaintiff prayed a general judgment against the executor, binding the estate, for 302 a special lien upon the land conveyed by the security deed, and for attorneys' fees. The executor, answering the petition, admitted the execution of the notes and deed, but denied that the estate of his testatrix was liable for the debt. He claimed that the debt was his individual debt, and that the plaintiff had no right to a special lien on the land or to a judgment against the estate for attorneys' fees. The case was submitted to the trial judge without a jury, and he passed upon all questions, both of law and of fact. The executor, in his testimony, admitted borrowing the four thousand seven hundred dollars from the plaintiff, but testified that when he obtained the money the estate owed but three thousand four hundred dollars. One of the officers of the company testified that the executor represented to him, when the money was loaned, that the estate owed debts to the amount of four thousand seven hundred dollars. The court rendered judgment against the estate for the principal, interest, attorneys' fees, and costs, and set up the special lien on the land. The executor moved for a new trial, the motion was overruled, and the executor excepted. Three questions are involved in this case: 1. Did the executor have power under the will to borrow money and secure the debt by deed or mortgage? 2. Having such power, could he borrow more than the amount of the debts of the testatrix, so as to make the contract binding upon the estate, not only to the amount of the debts, but to the full amount borrowed by him? 3. Was he authorized to contract for the payment of attorneys' fees in the event it should be necessary to collect the debt by suit? We have no doubt that all these questions may be answered in the affirmative, under the rules governing the power given the executor by this will. 1. The will is clear and explicit that the executor had power, in case it was necessary, to raise money, in such way as seemed best to him, for the purpose of paying the debts of his testatrix. When the executor, in the administration of the assets of the estate, ascertained that it was necessary to raise money to pay the debts of the estate, he had full power to do so. It is a wellrecognized principle of law, that where power is given to raise or borrow money, the power to secure the loan is necessarily implied. The will having given power to the executor to raise money to pay the debts of the estate, he had also the power to secure the loan by deed or mortgage. Otherwise, he might 803 have been unable to successfully execute the power expressly given him by the will. The executor had, therefore, not only the power to raise money for the purpose of paying the debts of his testatrix, but also the power to secure the loan by deed or mortgage. 2, 3. The question next arises, How much could the executor borrow, and to what extent would the estate be bound where he exceeded his authority? We agree with counsel for the plaintiff in error that the executor had power to borrow no more money than was necessary to pay the debts-that his power was restricted to the exact amount of the debts. We do not, however, agree with him that, as the estate owed but three thousand four hundred dollars and the executor borrowed four thousand seven hundred dollars, the estate was liable for three thousand four hundred dollars only, the balance being the individual debt of the executor. Were this the correct view of the law, it would put upon every lender of money to an executor with similar powers, and upon every purchaser from an executor who had power to sell to pay debts, the burden of inquiring into the amount and the validity of the debts of the estate. The law does not cast such a burden upon lenders or purchasers dealing with executors who have powers such as those given in this will. Where such powers are given, the testator constitutes the executor his agent to borrow or to sell, and binds his estate for the acts of the agent or executor done within the scope of the business intrusted to him. He alone knows the amount and validity of the claims against the estate, and, where the money is borrowed or the sale made a short time after the probate of the will and within the statute of limitations of notes, accounts, or specialties, nearly all the authorities agree that it is not incumbent on the lender or purchaser to make inquiry as to the amount or validity of the claims against the estate. If the contract or transaction is free from fraud and collusion, and the purchaser or lender has no notice of the amount of the debts, the estate is bound. Of course, if the lender or purchaser colludes with the executor or has notice of the amount of the debts, and enters into the transaction to defraud the estate or lends more money or purchases more property than is necessary to pay the debts, the estate is not bound. As early as the first volume of the reports of the decisions. 304 of this court, in the case of Bond v. Zeigler, 1 Ga. 324, 44 Am. Dec. 656, we find a recognition of this principle. There the executrix, under a power authorizing the sale of property to pay debts, sold certain property to Bond & Murdock, who were creditors of the estate. The amount of their debt was allowed them, and, the property having sold for more than this amount, the balance was paid in cash. The property was afterward levied upon by other creditors of the estate, who contended, among other things, that the purchasers were bound to ascertain the amount of the debts due by the estate. This court held that in such cases purchasers are not "required, be ... fore buying, to look into the accounts of the executor to aзcertain that he is faithfully administering his trust; the law presumes this in his favor." It is true that the sale was of personal property, and it may be said that the executor, having title thereto by virtue of his office, could have sold it even without the power given by the will; but we find the same principle recognized in cases where the sale was of real property. In 2 Perry on Trusts, fifth edition, section 809, it is said: "The purchaser need not inquire into the necessity of a sale. Even express notice of the entire contents of a will cannot affect the purchaser of a chattel; for a purchaser of real estate under a power of sale to pay debts is not bound to investigate whether there are debts, nor to see to the application of the purchase money. And as all personal property is bound for the payment of debts, a purchaser is not bound to know whether there are debts or not, nor to see to the application of the purchase money." In Larue v. Larue, 3 J. J. Marsh. 157, the executors "were only authorized to sell so much land as was necessary to raise funds to pay the debts.” They transcended these powers and sold more land than was necessary to pay the debts. The court said: "The will .. gave them authority to sell for the purpose of paying debts. If they abused or transcended their authority, they are responsible to the heirs or devisees; but bona fide purchasers from them or their vendees cannot be affected, unless they have notice of the improper conduct of the executors. What debts [the executor] owed, or how much land it was necessary to sell to pay them, were matters of which the executors should judge, and upon which they alone were competent to decide. The testator 805 reposed confidence in them and gave them authority to act, and thereby strangers were invited to entertain confidence. It would, therefore, be unjust to permit strangers, who purchased in good faith, to sustain injury from the frauds of the executors." In Rutherford v. Clark, 4 Bush, 27, it was said: "When a will directs the sale of real estate, if necessary, for the payment of all the testator's debts or legacies, a purchaser at any such sale, not being presumed to know or to be able, by reasonable diligence, to know the condition of the estate or the extent of its indebtedness, or of its assets, should be protected in his purchase whenever made in good faith, without notice, actual or constructive, of the latent fact that there was no necessity for the sale, and consequent want of authority to make |