The decree of the surrogate was reversed upon the ground that, though the inventory filed by the administrator was prima facie evidence against him of the value of assets, and of what they consisted, such evidence was not conclusive. Why is the question thus narrowed down to the value of goods sold by the administrator, though sold for a much larger sum? An administrator cannot be permitted to make a profit to himself by selling the goods *Page 187 of the estate for more than they are worth. He is accountable for all that he receives. It seems to me that the question lies, in such cases, farther back, and that it is, whether the executor has made himself personally liable in making the sale. If he has, and has not realized the price for which the goods were sold, and may not, by reason of the insolvency of the vendee, or other cause, and the claimants, creditors, and next of kin, c., repudiate such sale, and seek to make the administrator liable personally, as for maladministration, then they can only claim the value of the property or assets sold. The estate has only been damnified to such extent. And such seems to be the question presented in this case, or rather the question made upon the appeal, though the evidence offered to show how long it would have taken to settle the affairs of the partnership and realize the assets, if it had been wound up in the ordinary way, would seem to look to another question, viz., whether the administrator had acted prudently or had violated his duty.
The administrator, however, does not appear to have put his case in his appeal to the Supreme Court upon this ground, as he says that he insists as such administrator that he is responsible to such estate only for the amount of the cash value of the undivided interest of the estate at the time of the sale and disposition thereof made by him, and that he has a legal and equitable right to show such cash value as the measure of his indebtedness to the estate.
I have no doubt that this position is sound enough, upon the assumption that the acts of the administrator in making the sale are repudiated by those interested in the assets, and they seek to make the administrator personally liable, and he can evade such liability. Those interested in the assets or property cannot have sustained a legal injury beyond the value of the property, in the faithful administration of which, they had an interest. In this view of the case I shall not consider the question whether the administrator was liable personally for anything that had been done. If he was, such liability did not exceed the value of the goods and property sold *Page 188 Kingon on credit, and there was nothing in the case concluding the administrator from showing such value. The inventory was no more than prima facie evidence of the value.
The judgment of the Supreme Court should be affirmed.
EMOTT, J., also dissented.
Judgment reversed, and decree of surrogate affirmed.