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made, good reason to believe that the sale is intended to be made for the use of the executor, and not for the benefit of the testator's estate.

"It has been decided in no case," says Judge Moncure, "that a sale of a bond at a discount, however small, will afford sufficient reason to believe that a devastavit is intended by an executor. A sale of a bond at par, or abating only the legal discount for the time the bond has to run to maturity, would certainly afford no reason for believing that a devastavit is intended; nor, we imagine, would a very small additional discount. It is often to the interest of an estate, and agreeable to the legatees, for such a sale to be made, especially in a case in which a bond has a long time to run. Suppose a bond which would have to be collected probably by a suit, is sold at a discount not more than equal to the ordinary expenses of collecting such a bond, would such a sale be a devastavit in the executor? The rule in regard to the sale of any property by an executor, including, we suppose, as well bonds as other property, is that if it be sold at such a gross undervalue as to afford good reason to believe that the executor intends to commit a devastavit the purchaser will buy at his peril, and ought, for his own safety, to make the necessary enquiries. But who can say that the sale of a bond at a very small discount-the smallest at which it could possibly be soldwould be a sale at a gross undervalue. In the three cases referred to" (Fisher v. Bassett, Pinckard v. Woods, and Cocke v. Minor), says the learned judge, "which are the only cases we have seen on the subject of a sale of bonds by an executor, the sale was spoken of as at a 'sacrifice,' and sometimes at a 'ruinous sacrifice.' In Fisher v. Bassett the sale was at a discount of twenty-five per cent. In Pinckard v. Woods, it was at a discount of eighteen to twenty per cent. In Cocke v. Minor, at a discount of twenty per cent. In this case" (speaking in Jones v. Clark) "the

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sale to Neal was at a discount of at least eighteen per cent. But the sale by Neal to Jones was at a very small discount -not as much probably as one-half that sum-and Neal proves that it was low. If, therefore, the bonds had been bought by Jones of the executor, instead of Neal, we could not say that the bonds were sold at a gross undervalue, or at a sacrifice. Both of the bonds had some time to run when sold, and one of them, the larger, more than a year, and after paying expenses of collection, Jones, perhaps, received but little more than six per cent. on his money. To make him now pay the whole amount of the bonds, with interest until payment, would be to impose a very heavy penalty on him, certainly one exceeding his offence, whatever that may be, and far exceeding any loss which anybody can have sustained from his act; for nobody, in fact, can have sustained any such loss at all.

Having the legal title to and the possession of the subject, and at least as much equity as anybody else can have, there can properly be no recovery against him on account of the bonds."

In the same case, a bond had been assigned to Barksdale, and the money collected, and the executor defaulted as to that also, there was evidence tending to show that this assignment was merely formal. This court said as to that bond: "This may have been an unreasonable and awkward mode of settling the matter, but certainly the evidence is not sufficient to convict Barksdale of a fraud, which is necessary to make him responsible as a party to the devastavit of the executor. A fraud should not be presumed but must be plainly proved." Barksdale was held not to be liable, even if the transaction be considered as a sale of the bond by the executor to Barksdale at a discount of five per cent. See Jones v. Clark, 25 Gratt. p. 674.

This case is thus fully set forth because it must be regarded as a leading authority on the question before the

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court in this case, and because it was expressly relied on by the learned judge who decided this case in the circuit court, and by the counsel who argued the case here for the appellees. If we remember the circumstances of this case, and regard them in the light of the foregoing authorities, the case does not appear difficult of solution. As to Brockenbrough it will be remembered that he bought the bonds in question not only not at a ruinous discount, but at no discount at all, he paid for them full value; and he did not receive them either in satisfaction of his own debt. Upon what principle can he be held responsible to these sureties of this executor? What was the undertaking of these sureties in the executorial bond? Are their liabilities to be postponed, to follow the testator's property into the hands of every purchaser from the executor, however bona fide he has acted, and although he has paid the full value for what he has received? It cannot be so held. There is no ground whatever to charge the devastavit of this executor upon the appellant, Brockenbrough, more than upon any and every purchaser who may deal upon fair terms with an executor in the legitimate discharge of his duties. as such. For it must be remembered that Brockenbrough did not make a dollar of profit for himself out of the transaction.

As to William Harding, it appears that he purchased of the executor at a full value, there being no discount; but the bonds appear to have been assigned to Harding to take in an individual debt of the executor due Harding. Then, according to the decided cases, the burden of proof may be claimed to be upon Harding to show that the executor, Smith, had the right to use the bonds in question to pay his own debt, by being in advance to the estate, or by advancement to the legatees. The evidence in the cause shows that the executor had become the owner of threefifths of the estate by advancements to the legatees, hav

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ing thus acquired the sum of $3,420 out of the $5,700. The assigned bonds, both to Harding and Brockenbrough, aggregated $2,560.77, several hundred dollars less than the interest that belonged to him. This is admitted, and, indeed, it is proved, and, upon a suit brought and reference to a commissioner, the report showed that Smith had exhibited the assignments to the commissioner, which the commissioner stated he had seen, and that they showed that Smith, "the acting executor, has purchased the interest of nearly all the parties entitled in remainder after the death of Mrs. Pearson, as appears from papers produced and shown to your commissioner by James Smith." This in 1876. Smith did actually own what he assigned both to Brockenbrough and Harding, and proved the fact to them when he dealt with them. Afterwards he defaulted, by reason of a crisis in his affairs, caused by loss of property in Baltimore, and the sureties seek to avoid their undertaking upon the bond of Smith as executor by alleging that Smith had no right to buy until the death of the life annuitant; that her interests were thus put in jeopardy. But while it does not very clearly appear that her interest, as annuitant for life, would not be as well preserved in the one case as the other, the fact in this case is that the annuity to Mrs. Pearson was regularly paid up the time of her death. It does not appear that either Brockenbrough or Harding can be held to have fraudulently contributed to the default of the executor; both dealt with him fairly and for full value, and received what was in fact his own property, so far as the appellees are concerned, whether the legatees or the sureties upon Smith's executorial bond, and Smith was in no way injured.

This responsibility was in no way affected by either transaction, as both were at a fair price and for full value. Neither can be said to have contributed to any devastavit or default on the part of the executor. That neither in any

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wise fraudulently contributed to nor fraudulently concerted with the executor toward his subsequent defalcation. If Brockenbrough had not purchased the bonds he obtained, Smith had the authority and could have collected them as they were then due, and doubtless would have done so long before the death of the annuitant; and the same may be said of Harding. And it may be remarked that the distinction drawn between the Dawson bonds and the Dungan bonds is not sustained by the authorities cited, one being taken by the executor in his own name individually, and the others in his name as executor; for we have seen that "the duty of a purchaser from an executor, of a bond payable to him as such, to make enquiry as to the propriety of the sale, does not arise from the fact that the bond is so payable." Jones v. Clark, supra.

The charge upon the assignee is founded upon fraud actual or implied; without such fraud all the cases agree that there is no liability on a purchaser; if his acts are bona fide, he is safe.

Now let us remember the emphatic endorsement by the learned judge who decided this case, of the motives of the appellants. He says that there is not the slightest ground for supposing that either Brockenbrough or Harding were influenced by the slightest motive for personal profit or benefit. Without this fraudulent concerting with the executor in his breach of trust can these assignees be held liable?

In Truss v. Old, 6 Rand. 556, Judge Green, speaking of the analogous case of a guardian disposing of his ward's estate, said: "Their authority is coupled with a legal interest and is not clearly an office. It is like the interest of an executor in trust," expressing the opinion that the guardian had the power to sell the personal assets of his ward's estate.

In Bank of Virginia v. Craig, 6 Leigh, 399, the judges