The opinion of the Court was delivered by
Moses, C. J.The answer of the defendant, Louisa C. Bolling, admits the decree of the Ordinary, made on the 14th day of A pril, 1862, as alleged in the bill. She does not aver against it error in fact or in law, but asks to avoid the relief which is sought from it, as the judgment of a Court, with competent jurisdiction, by subse*466quent circumstances, none of them amounting to such an independent transaction as can, in any way, supersede the rights which it confers.
The decree is conclusive as to all matters which arose prior to its date.— Chambers vs. Patton, 1 Bail., 130. Even a discount which would have been cognizable before the Ordinary, if it had been submitted, will not be entertained in an action on the decree.— Ordinary vs. McLure, 1 Bail., 7.
Owing to the anomalous character of the proceeding under our practice in regard to a decree operating as a judgment, which cannot be enforced by the tribunal which renders it, the Courts have somewhat modified the rule which for a long time prevailed, and allow matters in discharge, which have arisen subsequently to the last return of the executor or administrator, though prior to the decree, to be plead against it. — Simkins vs. Cobb, 2 Bail., 60. The decree, however, is still held conclusive as to the fact of the citation, and the items which compose the account. The defendant here does not complain of any irregularity or defect in the proceeding, which it must be remembered was on the petition of her testator, nor does she charge error in the account on which the decree was founded.
Taking together her answer, the report of the Referee and the decree of the Circuit Court, we are to infer that the claim of the appellants is resisted on the ground that, on the refusal of James M. Sullivan, the guardian of the children interested in the decree, of the Ordinary, to accept in payment of their portion thereof, Confederate Treasury notes, the said T. C. Bolling, on the 19th of August, 1863, invested the same in a Confederate States bond for $3,000, bearing interest at 7 per cent., redeemable after July 1, 1868, which proved valueless, and that he is, therefore, discharged of all liability to answer for the amount found due on the legacy under the will of his testatrix, Mary A. Bolling, to the children of the said Sarah S. Sullivan.
The bond was issued to “ T. C. Bolling, in trust for Sarah .Sullivan’s children, under the will of Mary A. Bolling, deceased.”
The Circuit decree does not set forth why the amount due the adult children was reduced by it to one-half the sum which the executor was found by the Ordinary to be indebted to them, nor does it give the reason which induced a discrimination against the minors; and a conjecture might not lead us to the proper considerations which operated to extend relief to the children of age to the extent of one-half the sum which they claimed by their bill, and to deny *467all relief to the minors, both standing under the will on an equal footing.
The case was heard on the report of the Referee. The exceptions of the appellants deny the power and authority of the executor to make any investment for them of the amount so found by the Ordinary to be due, and further deny that the pretended investment for them ivas of the funds of the estate.
When the decree was pronounced by the Ordinary, it established a debt against the said T. C. Bolling in favor of the legatees under the will, of which he was the.executor, which could only be satisfied by payment. It was the direct and final judgment of a Court of competent jurisdiction on the accounts of the executor up to the day of its date.
If to that period the executor occupied a fiduciary relation to the legatees, he then became their debtor, and he had no control or power of disposition of the amount so found due. He appeared to have proper conception of the rights which it established against him, when he offered to make payment, though the currency through which he proposed satisfaction was - one which the parties or their guardian were not bound to accept. If he undertook to invest the amount, with a view to future payment, in a security which proved worthless, as the risk was his so must be the loss. As well might any other debtor say to his creditor: I offered you payment in a currency which was not a legal tender, you refused to receive it, I have invested the amount in funds which are now without value, and the consequences of the loss must be borne by you. It is to be noticed, too, that the Confederate bond which he caused to be issued to himself on the 19th August, 1863, was not the full amount of principal and interest of the decree, in favor of the Sullivan children.
There is no evidence that after the decree he made any offer to pay such of them as were of age the proportion-of it due them. As to the infant children, if he had made an admitted legal tender to their guardian, his refusal to accept would only have subjected him to a loss of the interest; yet having offered that which the other party, it is conceded, was not bound by law to take, the Circuit decree deprives the infant children of the whole amount of the decree rendered in their favor by the proceeding before the Ordinary.
The debt was established by the judgment of a Court of competent jurisdiction against the executor. He admitted its correctness by not prosecuting an appeal to which, by the statute, he was enti-*468tied. It is conceded lie has not satisfied it; and yet it is claimed that he is discharged, because, looking at the transaction in the light most favorable to him, he invested the amount he owed in a fund which has failed. Is he or the creditor to bear the loss ? '
If it were necessary, the question might be put with some pertinence — as the decree established a debt subject to immediate payment — how was the amount which was to meet that debt to be with certainty presently realized by a bond which was not to be due for over five year,s from the time of the decree?
It is ordered and adjudged that the decree in favor of the adult children of Jane C. Sullivan be modified in conformity with the views herein expressed, and as against the minors that it be reversed.
It is further ordered that the said Louisa C. Rolling, as executrix of the said Thaddeus C. Bolling, do pay to Mary Ann Workman, Fanny M. McDavid, J. Mims Sullivan, Harriet E. Sullivan, Joseph W. Sullivan and Jane K. Sullivan, each, one-seventh of twenty-seven hundred and sixty dollars and eleven cents, with interest from the 14th day of April, 1862, until satisfaction shall be therefor made, and also to each of the said named parties the one-seventh of three hundred dollars, with interest from May 23, 1867, until satisfaction shall be therefor made — this last being their share of proceeds of sale of Florida land, referred to in the report — -and that the said Louisa C. Bolling do, as executrix as aforesaid, pay to the said Micajah B. Harrison one-third of one-seventh of twenty-six hundred and sixty dollars and eleven cents, with interest from the 14th day of April, 1862, until fully paid; and to the said Sally Harrison .the remaining two-thirds of said seventh, with like interest, until fully paid; and that she do also pay to the said Micajah B. Harrison one-third of one-seventh of three hundred dollars, with interest from May 23, 1867, until paid; and to the said Sally Harrison the remaining two-thirds of said seventh, with like interest— this last being also of proceeds of sale of Florida land. The costs to be paid by the said Louisa C. Bolling out of the estate of the said Thaddeus 0. Bolling.
The plaintiffs to be at liberty to move the Circuit Court for orders as to further account since date of Ordinary’s decree, excluding from it the sale of Florida land already herein provided for.
Willard, A. J., and Wright, A. J., concurred.