1. The legislature having, by an act approved on the 12th March, 1866, provided for the relief of executors, administrators, guardians and trustees, in consequence of the emancipation of slaves produced by the recent war, we are persuaded, from the facts stated in complainant’s bill, that the Court erred in dismissing it on demurrer.
It may be that when the pleadings are finally made up by other allegations, and the evidence collected to sustain them, it will appear that the executor in this case is without material blame, and that without doing anything contrary to his duty or intending to do the creditors of the estate any wrong, he was surprised by the disastrous turn the war took, and the property in his hands for the payment of debts, swept without criminal or rather inexcusable negligence, from his custody and beyond his control. If the property, which was valuable, was made valueless whilst in his hands, without gross or willful negligence, by force, surely there can be no *234principle of equity which, in such a case, would hold a trustee, or one acting in such capacity and in good faith, liable to respond personally for a want of clairvoyance in not discerning in advance what would happen.
There is a rigor in the common-law which, if not controlled in some cases, would be productive of great injustice; as in a case where an executor or administrator, having possession of personal property ample to pay off existing claims, omits, through ignorance or want of precaution or carelessness of his attorney, when sued, to file his plea of plene administravit or plene administravit prceter, the one or the other as the exigency may require, so as to protect himself and securities, if there be any, against any possible personal liability. Without such plea, the law presumes assets; judgment is taken; the personal property is destroyed by death, or by some casualty, or by war. In such case, should the executor or administrator be held personally to pay? The law probably says yes, but equity emphatically says, no, and will and ought to interpose to relieve him, unless from gross mismanagement or negligence, or willful violation of the rights of creditors, or by a conversion of the trust property to his own use and benefit, he has divested himself of all right to its protection. Such, we apprehend, was the spirit and design of the recent legislation of the State for the relief of these fiduciaries; it should be liberally interpreted and enforced, unless found, upon mature consideration, to impair the obligation of contracts. Eemedial legislation, when mitigating the rigor of the common-law, is always liberally construed. Without pronouncing any opinion whatever upon the merits of the defence of this executor, or intending to intimate one by any remark made or proposition stated, we mean by this decision simply to say that this case should be heard and decided upon its merits after the pleadings have been amended and made up, and evidence heard.
In such cases, technical decisions on demurrer are not satisfactory. The ends of justice require a full and fair trial? and that the executor should have relief under the act referred to, unless by gross negligence or willful misconduct *235previous to the passage of that act, he had made himself personally answerable out of his own estate to pay the creditors of the estate he represented.
2. From the bill of exceptions, it appears that complainant sought to diminish his liability to the creditors of the estate, by showing that he had paid a note or judgment against the estate, but which had been disallowed by the Ordinary. Had this been allowed in his accounts by the Ordinary, it would have thereby become in the Superior Courts prima facie evidence in his favor ■ but the rejection or disallowance of such item by the Ordinary, should work no other prejudice to him than to put him, whenever his liabilities are investigated by a jury, to the proof of the facts of payment by him.
We can perceive no satisfactory reason why, upon such proof on the trial of the cause, the executor should not be credited with such payment, and according to the grade of the claim paid as it existed at the death of his testator, and in case of insufficiency of assets to pay all creditors of the same grade, then to be credited with its pro rata share, according to the priorities established by law.
Judgment reversed.