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Staley v. Hamilton et ux.-Opinion of Court.

ferred from the mere fact of the execution of a bond or note, nor unless it is expressed in terms in the contract, or results from the beneficial nature of the consideration as enuring directly to her benefit or the benefit of her property. In the case of Yale vs. Dederer, 22 N. Y., 450, 459, the Court of Appeals say: "If we desire precision and certainty in this branch of the law we must recur to the foundation of the power of a feme covert to charge her separate estate, and this has heretofore arisen solely from her incidental power to dispose of that estate. Starting from this point it is plain that no debt can be a charge which is not connected by agreement, either express or implied, with the estate. If contracted for the direct benefit of the estate itself, it would, of course, become a lien; upon the well founded presumption that the parties so intended and in analogy to the doctrine of equitable liens for purchase money; but no other kind of debt can be thus charged without some affirmative act of the wife evincing that intention.** But there is a strong additional reason why this court should decline at this time to adopt the fictitious theories on this subject which have so long prevailed in the English courts. Married women are not hereafter to be indebted to equity merely for protection in the enjoyment of their separate estates. They hold them by a legal title, and have a legal right to dispose of them. * * The provisions [of the acts of the Legislature on the subject] show that the Legislature has not even now intended to remove the common law disability of married women to bind themselves by their contracts at large.'

In the language of the court in Willard vs. Eastman, 15 Gray, 328, 335, "where she is a mere surety or makes the contract for the accommodation of another without consideration received by her, the contract being void at law, equity will not enforce it against her estate unless an ex

Staley v. Hamilton et ux.-Opinion of Court.

press instrument makes a charge upon it." And see opinion of the court in Manhattan B. & M. Co. vs. Thompson, 58 N. Y., 80, by CHURCH, C. J.

There are exceptional cases, as where a married woman living separate from her husband, or is doing business on her own account, gets credit on account of such business or on account of her separate property, a Court of Equity may charge such property. Blumer & Wife vs. Pollak, 18 Fla. And see Burch vs. Breckenridge, 16 B. Monroe, 482.

The present case being one where it clearly appears that the wife became security for her husband for money borrowed for his use by merely signing a promissory note with him, and no valid instrument having been executed by her charging her separate property with the payment, there is no ground for holding that she did so charge it, notwithstanding the money was loaned at the earnest solicitation of both husband and wife. The statute has provided, as we have seen, that the wife, by deed or mortgage duly executed and acknowledged, may convey her separate real property, her husband joining therein, for any consideration whatever, and so she may secure the payment of any debt of her husband or herself. A deed or mortgage not so executed and acknowledged by her, covering her separate property is of no effect because this is the only method prescribed by law for so conveying or charging it; and a Court of Equity cannot enlarge the statute.

The paper signed by Mrs. Staley and her husband, in the form of a mortgage, not having been duly acknowledged, is of no validity, but is void in law and in equity under the laws of this State. Hartley vs. Ferrell, 9 Fla., 374.

Decree reversed.

Shepard's Heirs v. Shepard's Adm'r-Syllabus.

MARY SHERRELL ET AL., (HEIRS OF ALFRED SHEPARD,) APPELLANTS, vs. ELIJAH S. SHEPARD, ADMINISTRATOR OF A. SHEPARD, APPELLEE.

ELIJAH S. SHEPARD, ADMINISTRATOR, APPELLANT, vs. MARY SHERRELL ET AL., APPELLEES.

1. Upon a sale of personal property of an estate it is the duty of the administrator to take a promissory note or bond with good security for the credit extended. He is not chargeable with the amount immediately when he acts in good faith and with ordinary care. He becomes liable at the expiration of the time of credit, and to discharge himself he must show that the money, if not received, was lost without any default or negligence on his part. The burden of proof is upon him to show, first, that he took good security, and second, that the subsequent loss was not attributable to his laches or neglect.

2. The Judge of the County Court is not authorized by the statute to approve securities to obligatiors for sales of personal property by administrators. Taking good security is a personal duty of the administrator. The simple approval of the surety by the Judge of the County Court is not sufficient. The administrator must prove that the personal security taken was good.

3. Such notes when taken are not to be treated as investments. The administrator should be diligent in their collection, and if an investment is then proper it must be of such character as the law sanctions.

4. An administrator receives a gold receipt from the decedent. This receipt is executed to the deceased in his lifetime by a person engaged in trade, with whom the gold is deposited for safe-keeping. The depositary after the qualification of the administrator always denies his liability to the estate. The administrator delays suit for over two years, and sues at a time when a recovery of a judgment in due course of law would not have resulted in realizing the money. The depositary died before the institution of the suit, and up to the time of his death was considered solvent. Under these circumstances the administrator is liable for the debt.

Shepard's Heirs v. Shepard's Adm'r-Syllabus.

5. An administrator receives a note from the decedent. The maker thereof is a person engaged in trade. He was reputed solvent, paid the interest, and the administrator, had he insisted upon payment, could have realized the amount before his death. The administrator, after a delay of more than two years, and after the death of the maker, sues and the estate is found insolvent. The evidence shows that the purpose of the administrator was to hold the note until distribution, and to treat it as cash or an investment. He is liable for the less. It is the duty of an administrator to collect the debts of an estate within a reasonable time after his qualification. He must act as a discreet business man would whose duty it was to collect and distribute the estate within the time required by law. He must call in such debts. He cannot treat them as investments upon personal security. 6. An allowance for sums paid an auctioneer for the sale of personal property is proper; so, also, is a bill for advertising time and place of sale.

7. The administrator in deference to, and at the request of the heirs, has a partition of the lands of the estate by the County Court, each person entitled taking his share. The parties thus availing themselves of and consenting to such proceedings are estopped from refusing to pay their share of all legitimate expenses incurred thereby, or in connection therewith, and cannot set up a want of jurisdiction in the court, and thereby have the administrator, who acted in deference to them, charged with the entire expense.

8. The administrator is entitled to a fair and just compensation for all services rendered in connection with the estate. When a per

diem of from $2 to $2.50 is allowed for services in the absence of controlling and clear evidence, showing that it is too much, it should not be disturbed by the Circuit Court or by this court. 9. An administrator is not entitled to commissions on the gross amount for which the personal property sold. He is entitled to commissions on the amount of the money received at the sale, and on all sums of money thereafter realized from the credits extended. A commission of six per cent. on the money thus collected is a reasonable allowance.

10. A like commission on money collected by the administrator from notes and accounts left by the deceased is a reasonable compensation for the service.

Shepard's Heirs v. Shepard's Adm'r—Argument of Counsel.

11. The sum of $1,942.25 cash comes into the hands of the administrator from the deceased. He retains it on hand about two months and then disburses it. A commission of three per cent. and an allowance for per diem is a sufficient allowance for the service It is not too much.

12. Manner of accounting.-On all moneys received the interest at the annual balances is added to the principal. On notes or other securities lost by the neglect or laches of the administrator, only simple interest is charged except under special and peculiar circumstances, showing something more than simple neglect. 13. An administrator is entitled to compensation for services bona fide rendered in endeavoring to collect and in investigating the condition of notes, the makers of which were reputed to be insolvent. 14. An administrator is not to be debited as of course with costs and charges attending unsuccessful suits brought by him upon the paper belonging to the estate. If, under the circumstances, the litigation was just and proper, and apparently for the benefit of the estate, and brought bona fide, he is entitled to credits for costs and charges, and for services rendered in connection with the litigation.

15. Upon the institution of a suit against him, the administrator may relieve himself of liability for interest by paying the money inte court, otherwise the legal rate of interest on each class of debts existing at the commencement of the suit continues according to law.

16. To the extent that charges paid by the administrator to the Judge of the County Court are illegal, to that extent should the administrator be charged therewith.

Appeal from the Circuit Court for Gadsden county.
The facts of the case as stated in the opinion.

John W. Malone for Shepard's Heirs.

The first exception of the plaintiffs embraces two items, to-wit the McAlpin note and the gold certificate, which we will consider in their order.

The McAlpin Note.-The defendant in his answer says that he realized from the sale of the personal property of

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