* BURWELL, J., having been of counsel, did not sit on the hearing of this case. The facts in the case are as follows:
One Thomas Russell made a will appointing D.P. Lee executor. He devised certain moneys, about $1,300, to "be equally divided and paid over to Philip J. Russell, Miss Mary Russell and the children of my niece, Martha, wife of Charles Stanford, in equal portion, share and share alike, to them and each and every of them." The Charles Stanford mentioned is the defendant in this case, and the feme plaintiff is his child. He became the guardian of his children, and when he came to collect for them what was due by Lee, executor, under the will, there was a question raised as to whether the division should be per stirpes orper capita, and the advice of Major Dowd, who was a lawyer of undoubted ability and character, but the counsel of the executor, was sought. Dowd decided that the division should be made per stirpes, and hence Stanford accepted in settlement one-third for all his children, and brought no suit for any more, because Dowd advised him that was all he was entitled to. Subsequently, in a suit between Culp, (665) the present plaintiff, and Lee, the executor, the Supreme Court (109 N.C. 675) construed this clause of the will and held that the division should have been per capita.
Judgment was rendered for the plaintiffs for only half of amount in hands of executor under the third issue, and judgment for (668) defendants as to balance. Plaintiffs excepted and appealed. The defendant guardian should have collected for his wards two-thirds of the fund. Culp v. Lee, 109 N.C. 675. Instead thereof he collected only one-third. In Harris v. Harrison, *Page 457 78 N.C. 202, it is said: "Both by statute and the decisions of the courts . . . the guardian shall endeavor to collect by all lawful means his ward's estate upon pain of being liable if he neglect."
It is doubtful, to say the least, if the advice of counsel could be a defense where the law in favor of the ward's right to the fund had been so clearly settled by the authorities (cited in Culp v. Lee, ante) and the amount collected was only one-half of that due the wards, since the construction of the court could have been readily had and would have been full protection. Freeman v. Cook, 41 N.C. 373; Batts v. Winstead,77 N.C. 238; Boulton v. Beard, 3 DeC. M. G. R., 608. In the latter case it was held that the defendant, who made an error in the distribution of the funds of the residuary estate, could not defend himself by reason of having acted upon the advice of two eminent counsel of the chancery bar. To similar purport is Wade v. Dick, 36 N.C. 313.
Luton v. Wilcox, 83 N.C. 20; Lawrence v. Morrison, 68 N.C. 162, and other cases cited by defendant, were instances where the facts were doubtful or the chances of recovery uncertain by reason of the insolvency of the defendant. In those cases where the fiduciary uses his best judgment and acts upon the advice of good counsel he will not be held liable if the event should show he might have recovered more. But in the present case there is simply a proposition of law which he could have submitted to the court.
We would not be understood as holding that a fiduciary should litigate every legal question arising. In the majority of instances the advice of counsel will correctly settle the matter. There are others so doubtful or so contingent upon doubtful and unsettled facts, or the amount is so small, that he should compromise the matter.
But the present was not a compromise. If it be conceded (670) that the guardian would have been relieved if he had acted upon the advice of counsel, still he did not show reasonable care in this case. He did not apply to his own lawyer nor seek out counsel and lay the case before him. When the fund was ready to be paid over he simply, according to his evidence, asked the counsel of the party paying it over what part thereof was coming to his wards, and claims that he paid five dollars for the reply. The counsel himself says he has no recollection of being asked any question by the guardian and was not paid any fee. Though the counsel was a gentleman of recognized eminence in the profession, the opinion (if given) seems to have been a reply made, without deliberation or reference to the authorities, to one who was not his client and for which he says he was not paid. The advice (if given) seems to have been off-hand, and what is known in the profession as a "horseback opinion." *Page 458
It was negligence in the defendant to surrender one-half of the fund which he should have collected, without more care, deliberation, or thought given to the subject than this evidence disclosed. The party paying over the fund was solvent, and there was no such doubt as to either the law or the facts as called for a compromise. There was, in fact, no compromise. The guardian simply, carelessly and without deliberation and, at the most, upon the hasty opinion of counsel, till then employed by the debtor, not by himself, accepted half the sum he should have collected. He is responsible for his want of due care.
REVERSED.
(671)