As the petitioners cannot now appeal from the decree of the judge of probate, as a matter of right (G. L., c. 207, s. 2), they ask leave to appeal under G. L., c. 207, s. 9, which is as follows: "If it appear that the petitioner has not unreasonably neglected to appeal, and that injustice has been done by the decision of the judge, such appeal shall be allowed, heard, and tried on such petition." One point decided by the referee is, that no injustice has been done by the probate decree. On that issue it is suggested that it is only necessary for the petitioners to present a prima facie case, and that the merits of the controversy are to be tried at a subsequent time, if at all. If the parties could demand a trial of the merits of the appeal, when granted, by some tribunal other than the court, or a referee appointed by the court, as by a Jury (Matthews v. Fogg,35 N.H. 289, Moulton's *Page 336 Petition, 50 N.H. 532, Gitchell v. Andover, 59 N.H. 363, Patrick v. Cowles,45 N.H. 553, 555), the question raised might be more serious. But when the question of the right to appeal under the statute, and the question of the right to have the decree reversed, are both to be tried by a referee on the same issue, there seems to be no good reason why the referee may not, in the first instance, hear the whole case, instead of a part of it, or why he should decide at one time that the petitioners have made out a prima facie case of a right to appeal on the ground that injustice has been done, and at another time that they have proved their right to a reversal of the decree on the same ground by a preponderance of evidence on the whole case. Such a mode of procedure would be attended with useless inconvenience and expense, and would result in unreasonable and vexatious delay. Not being a necessary or convenient mode of procedure in this case, it is not to be adopted.
The case is before us on the plaintiffs' motion to set aside the report of the referee, on the ground that he mistook the law applicable to the facts. The motion presents a question similar to that raised by a motion to set aside the verdict of a jury, which is claimed to be opposed to the law and the evidence of the case, and, in some cases, it may properly be addressed to this court at the law term. Dodge v. Stickney, 60 N.H. 461,462. It is simply a question of the competency of the evidence to support the facts found or the conclusions reached by the referee. If there was any evidence before him from which he could legally find in favor of the defendant, his report will not be disturbed. Wendell v. Safford,12 N.H. 171; Lisbon v. Bath, 21 N.H. 319; Wendell v. Moulton, 26 N.H. 41; Gould v. White, 26 N.H. 178; Palmer v. Portsmouth, 43 N.H. 265, 267; Clark v. Society, 45 N.H. 331, 333; Free v. Buckingham, 59 N.H. 219, 223.
Whether the executor's settlement with George D. Dodge was a fair one, conducted without fraud and reasonably favorable to the estate, and whether the petitioners assented to it and voluntarily signed the receipt mentioned in the case, were matters of fact properly before the referee, which he has decided affirmatively on competent evidence; and his additional finding, that no injustice resulted to the petitioners from the probate decree, so far as it recognized and was based upon that settlement, whether a conclusion of law or of fact, necessarily followed. They could not complain of what they voluntarily and fairly agreed to. If they did not use extreme caution in reference to the settlement, and if it now appears to them that it was not for their interests to settle in that way, they cannot hold the executor, who concealed nothing, and acted in good faith, responsible for their want of judgment. Griswold v. Chandler, 5 N.H. 492, 495; Wyman's Appeal, 13 N.H. 18. It is, therefore, unnecessary to consider how section 7, chapter 207, Gen. Laws, limiting the time within which the court may allow an appeal in cases like this, affects the petitioner's right *Page 337 to an appeal on this branch of the case, for the justice of their claim has been tried and determined against them.
It is claimed that the finding of ordinary care and prudence on the part of the executor in his management of the estate's affairs in the West is inconsistent with his previous finding of facts. It is argued that the executor's employment of Sloan Patten, through whose fraud and perhaps crime a large part of the estate was lost, amounted in law to a delegation of his trust, and that consequently he is responsible to the estate for the loss. But a reasonably prudent and necessary mode of dealing with trust estates may often warrant the employment of agents, on whose judgment, discretion, and integrity the trust interests must practically depend. If an executor or trustee could not, in the exercise of due caution, employ agents and rely on their judgment and honesty in the transaction of business matters pertaining to the trusts, without being held responsible for a successful issue in every instance, many estates would remain unsettled for want of sufficiently courageous trustees. The general rule of law, that an executor cannot delegate his office to others, is unquestioned, but like most legal principles it is bounded and defined by reason. If applied with literal precision in all cases, it might become inconvenient and burdensome, or obsolete and useless; if understood and interpreted in the light of what is reasonably proper and necessary to be done under the circumstances of each case, it furnishes a sufficient protection to trust estates, and a practical method for their administration and settlement. It might be difficult to assign a good reason for the proposition that an executor is to be held responsible in the settlement of his estate for doing what other ordinarily prudent and sagacious men would have done; or the converse, that his action or non-action is to be commended when men in general would have done otherwise in the prosecution of their personal affairs. If it is reasonably necessary for a trustee to employ agents or attorneys, and if he uses ordinary care in their selection, and a proper supervision over the business entrusted to them, he cannot be held liable for their indiscretion resulting without fault on his part. Ex parte Belchier, Amb. 218, 219; Joy v. Campbell, 1 Sch. L. 328, 341; Jones v. Lewis, 2 Ves. Sen. 240, 241; Thompson v. Brown, 4 Johns. Ch. 619; Clough v. Bond, 3 Myl. C. 490, 497; Per. Trusts, s. 419; Sto. Eq. Jur., s. 1269.
Whether it was reasonably necessary for the executor in this case to employ agents in the West, whether in the employment of Sloan Patten and in his instructions to them he used due care, whether he exercised a proper supervision over them in their execution of the agency, and whether in any respect he omitted "such care and diligence as men fit to be entrusted with such matters may fairly be expected to put forth in their own business of equal importance" (3 Redf. Wills 391), are all questions of fact properly found by the referee, and not open for discussion *Page 338 here. In many of the cases relied upon by the petitioners, no reasonable necessity or excuse appeared for the apparent delegation of the trust (Styles v. Guy, 1 Macn. G. 422, Turner v. Corney, 5 Beav. 517, Brice v. Stokes, 11 Ves. 319, Hulme v. Hulme, 2 M. K. 682, Lincoln v. Wright, 4 Beav. 427), in others the question depended upon a construction of words used in a will, deed, or other instrument creating the trust (Berger v. Duff, 4 Johns. Ch. 368, Pearson v. Jamison, 1 McLean 199, Niles v. Stevens, 4 Denio 399, 404, Alexander v. Alexander, 2 Ves. Sen. 640, Attorney General v. Scott, 1 Ves. Sen. 413, 417, Hitch v. Leworthy, 2 Hare 200, Doe v. Robinson, 24 Miss. 688), and in some the language used by the judges, who were the triers both of fact and of law, was often an expression of opinion on a finding of fact, and not the enunciation of a legal principle. Thompson v. Finch, 22 Beav. 316; Bostock v. Floyer, L. R. 1 Eq. 26; Eaves v. Hickson, 30 Beav. 136. In properly weighing the authorities, a distinction also is to be noted between decisions at law and in equity, especially in jurisdictions where the two systems are distinct, and the boundaries between them are well defined. Decisions of a court having common-law jurisdiction only, are frequently worthless as authorities in equity. Crosse v. Smith, 7 East 246, 256; McDonnell v. White, 11 H. L. Cas. 570, 578, 587; Upson v. Badeau, 3 Bradf. 13, 15.
The case having been tried on its merits and determined adversely to the petitioners, it is unnecessary to consider the objection that they have "unreasonably neglected to appeal" under G. L., c. 207, s. 2.
Petition dismissed.
All concurred.