Hogan v. De Peyster. and charged with the same responsibilities. (2.) We hold the defendant liable for not having interfered, affirmatively, and by withdrawing the funds, prevented them from passing into the state bank. The defendant says that the continuance of the stock in the state bank was with the approbation of every one interested who was competent to assent. We reply: (1.) If it was so it would not, surely, justify the defendant, so far as those who were not competent to assent were concerned. No one had authority to assent for them. The order to sell--the duty to sellwere imperative. The consent of Mr. Hogan that it should remain, if given, which is denied, would not alter the duty of the administrator, or lessen his liability. He was not, by the terms of the will, a consenting party; his interests, too, were adverse to those of the cestuis que trust, and as for the infants he was only guardian ad litem, and not in rem, not of their property interests. (2.) But we have shown, in the plaintiff's opening point 2, sub. 3, that the above proposition of the defendant is not correct in point of fact. The defendant alleges that the parties who were competent to assent were aware that the stock had been changed. This would not justify the defendant as to those not competent to assent. The question is not what knowledge some of the cestuis que trust may have had, but what was the legal duty of the defendant as such administrator and trustee. That duty did not depend upon the knowledge of those for whose benefit he held the fund. The defendant says that they received the dividends in the share of income which was divided among them, and allowed the defendant to pass his accounts before the surrogate and master without objection. The cestuis que trust received, doubtless, whatever the trustee chose to pay them as dividends; but whether they knew where they came from, is neither apparent nor important. Such receipt did not adjudicate and settle any question relating to the defendant's negligence. The accountings, as by reference will appear, embraced only the moneys received from income, sales of lapsed shares of estate, and amounts paid in on account of principal for re-investment. Hogan v. De Peyster. No examination was had as to the value of the investments of principal, whether made by the testator in his lifetime, or by the administrator since. Such accounting for 1000 shares of stock merely extended to the production of the certificates of stock. Nothing is therein stated as to liability for not converting into money at the proper time; that was not the province of the master. Besides, the bill in this case was filed before such accounting, and the matter was before the court, and not before the master. The defendant urges that no trustee, placed in an embarrassed position as to a claim very complicated, ever acted in better faith, or more honestly fell into an error of judgment. We reply: (1.) There was not the slightest complication about the matter. The defendant's duty was very plain--no turnpike plainer; simply to sell the stock and invest the proceeds under the sanction of the court. It is the duty of the administrator to gather into his hands and realize the personal property of the estate, so as to have it ready for distribution according to law-or, application under a will. How simple is this proposition; it is the fundamental principle of administration; it is common sense, it is justice, it is law. Parties who are absolute owners of stocks, may indulge in speculative ideas of future and contingent values; not so an administrator. (2.) It is not necessary to a recovery that the defendant should be proved to have acted dishonestly. If he chose to swerve, though from the best motives, from that plain path of duty and entire safety prescribed for administrators and trustees, the risk of loss is upon him. No better illustration of this principle could be found, than in the case cited from 4 Barb. 626, where the court, taking pains to testify to the high character and integrity of Judge Emott, yet held him strictly to the rule. The defendant's search has brought to light one case, (8 Gill, 404,) which he thinks is entirely decisive of the present. He seems to have forgotten that in that case the express direction of the testator to invest in stocks took the case out of the very rule of equity on which we rely. No such authority was given by the will of Mr. Clendenning. It is, besides, to be remarked VOL. XX. 15 Hogan v. De Peyster. of this case in Gill, that the Maryland law is loose in regard to the duties of executors, administrators and trustees, never having adopted the English rule. This is sufficiently evident from the opinion of Dorsey, J., who, in delivering the judgment of the court, remarks: "In the course of the argument of the va rious points relied on in this case, to charge the defendant with the loss complained of, an immense mass, both of English and American authorities, have been referred to, to prove that, in the states or country where those decisions were made, an investment of a trust fund by executors, guardians or trustees, in bank stock, was a breach of trust, and subjected those by whom it was made to all the losses and casualties resulting therefrom. In answer to these authorities it might perhaps be sufficient to say, that the English chancery rule in regard to the securities in which trust funds can only be legitimately invested, has never, literally or analogically, been extended to Maryland; and that the American authorities cited, for the most part depend on statutory enactments of the state in which those decisions have been made, or rest on principles sanctioned by the courts of those states, but which have never been adopted, directly or indirectly, in the state of Maryland." Magruder, J., in his dissenting opinion, arrives at a conclusion more in accordance with right, and with English and American law. He says: "I must, however, think that the loss here to be sustained, ought to be borne by men who undertook the trust and then transcended the bounds of their trust duty," &c. IV. It will be perceived that the defendant does not any where contend in his points and argument that he was not liable as trustee for not having sold the stock immediately upon his appointment as such. His main argument consists of the various divisions and subdivisions under and in support of his third point, which is that, "supposing that as administrator, the defendant possessed ample power, he was fully justified in omitting to sell the stock," &c. And yet we had contended, in our second opening point, that even if the defendant was not liable in his capacity of administrator, he surely was as trustee. V. On the whole, then, we say it is the duty of an adminis Hogan v. De Peyster. trator to collect, realize, and hold securely, the personal estate of the decedent, so that it be ready for distribution; or, in case of a will, for application under the directions of such will. An order in such will that he should so realize and convert into money, if it do not strengthen and enforce the obligation already imposed on him by the law of administration, certainly takes away any reason for favorable consideration in the event of injury through his neglect. The defendant was appointed administrator cum testamento annexo, Feb. 4, 1837; in Feb. 1838, he had become derelict from duty, and so continued through 1838, 1839, 1840, and throughout. His responsibility and liability accrued and was conclusive upon him in 1838. No after correspondence, no requests or non-requests, or refusals of requests, no after given opinions, correct or incorrect, in 1839, 1840, or any after time, of parties interested or not interested, agreeing or disagreeing, of distributees or cestuis que trust, (all infants,) can be urged in palliation of a plain neglect of duty, in 1837 and 1838. By the Court, MITCHELL, P. J. The testator made his will in 1829, and died January 28, 1836. On the 4th of February, 1837, the defendant was appointed administrator with the will annexed. The testator, at his decease, held 1000 shares, of $100 each, in the stock of the Bank of the United States-the National institution. The charter of that bank expired on the 4th of March, 1836. On the 18th of February 1836 the state of Pennsylvania chartered "The United States Bank," the institution of that state. This last institution was intended to take the place of the former, and it was generally supposed that it would do so, to a great extent; those who disliked the first extending an equal dislike to the second, and those who had confidence in the first generally reposing an equal confidence in the second. The testator, by the second clause in his will, directed his real and personal estate to be converted into money, as soon as convenient, after his decease, and the proceeds to be securely invested in the most productive manner, "leaving it, however, to the discretion of my said trustees to suffer such part of my Hogan v. De Pyster. personal estate as is now invested in bank stock to remain in its present state, so long as they may deem it most for the interest of my family." The testator must specially have referred to this stock, as it formed a large part of his estate, and especially of the part invested in bank stock. He must have known what his will was, in the month when he died, and that this discretion applied to this stock; and he must also have known that the national institution would not then probably be rechartered. He must therefore be considered as sanctioning the continuance of this stock either in the same bank if re-incorporated, or in one substantially similar, or which might be regarded as in some sense its successor. If congress had rechartered the same bank, the case would have been clear. If it had chartered a new institution on a similar plan, with a right to subscribe open to all, and by arrangement between the new and old banks this subscription had been transferred to the new, his intention would probably have been that such transfer should be made. Here the difference was that a state institution took the place of the national one, and by arrangement between them the stock was thus transferred. There was no more reason to apprehend loss from the institution having a state charter than from its having a national one. The executors, therefore, could not be charged with any breach of duty in not interfering to prevent (if they could have prevented) this arrangement between the two institutions, or in not claiming payment of the value of their stock from the old institution. The defendant did nothing to aid the transfer, and when asked to take measures to make the old bank liable (as he had not assented to it) no proof is shown that he did not take a course satisfactory, at the time, to the plaintiffs. He was advised by counsel that it was inexpedient to attempt such a suit after dividends had been accepted from the state institution. The administrator barely suffered the stock to remain in the state in which it was at the testator's decease, and to pass as the rest of that stock did, except the part subscribed by the United States; and then, finding it so transferred as by a common consent of the stockholders, he received the dividends |