The will of Humphrey S. Camp, the (father of the plaintiff) contains the following clause:
“ I do will and bequeath to my three daughters, Martha Jane, Marianna C. and Lucy Camp, each three thousand dollars in money or bonds; and in the event of the death of either one or any of my said daughters without lawful issue, it is my will that her or their legacy shall be equally divided and heired by the survivor of my four daughters now single.”
The plaintiff, Martha Jane, has never married, the other two daughters named in the above clause have married and have children. The defendant is the executor of the testator.
i 1. It will ho convenient to consider the right of the plaintiff to the immediate payment of the'legacy to heron the assumption that the defendant has assets' applicable to it He contends that she is entitled to receive only the annual interest of the legacy during his life, and that the principal *540-must remain in his hands to await the contingency of her leaving issue at her death or not.
We do not agree with the defendant.
It is not material to inquire now whether the plaintiff took an absolute interest in the legacy upon the death of the testator, according to Hilliard v. Kearney, Busb. Eq. 221, or only an estate defeasible on her death without issue. In either case she is entitled to receive the corpus of the legacy, and its ultimate devolution is a question between her and the contingent remainder men, if they are such. Clapp v. Fogleman, 1 Dev. and Bat. Eq. 466. It is not material that she has not married.
2. As to the liability of the defendant for the note of Pit-man, the facts found by the Judge are : Defendant received as part of the estate of his testator a bond for a 'principal sum of $3,000, made by Spier Pitman as principal and one Powell as his surety, payable to the testator, and he retained it for the purpose of satisfying the legacy to plaintiff therewith. The will was proved and defendant qualified as executor at May Term, 1856, of Halifax County Court. Some time after his qualification (the length of time is not stated) defendant procured the bond to be renewed and made payable to himself as executor for the exact sum of $3,000. It is to be presumed that both Pitman and Powell were then solvent, and that in thus receiving the bond there was no want of diligence. In 1861 Pitman was insolvent, (we are .not informed when he became so,) and the defendant at the request of Powell, who was then possessed of a large estate and was unembarrassed, surrendered the bond to him, and took his bond without security in place of it. Powell after-'wards (it is not said when) died, and his estate is now supposed to be insolvent. Defendant has made several payments to plaintiff, of which he will have the benefit on an account, but we need not notice them now.
W e think that the'defendant, in failing to require security *541of Powell after the known insolvency of the principal, was-guilty of such negligence as makes him liable for any loss which may occur.
The Rev. Code, ch. 46, s. 18, requires that all sales by executors shall be on a credit of six months and that the proceeds shall be secured by bond with good security and collected as soon as practicable, &c. It may reasonably be-said that somewhat less diligence in obtaining unexceptionable security cvould be expected of an executor selling property on a short credit and where the debt was to be promptly collected, than in making what may be called a permanent investment for the benefit of a legatee. In such a case, the executor assumes to act as a trustee for the legatee, and the securitji should be as good as it is reasonably possible undertlie circumstances to obtain. In this case it can scarcely be doubted that when the executor surrendered to Powell the-bond of Pitman to which he was surety, he could have obtained from Powell, then a man of large estate, surety to his •. bond. And under the principles maintained in Boyet v. Hurst, and the other cases cited for the plaintiff, he is guilty of culpable negligence in not having done so. Whitford v. Foy, 65 N. C. Rep. 265, was referred to for defendant. But it is not in point. There the guardian received from the-administrator in 1855 notes which were then good. It is-not stated in the report whether both principals and sureties were good or not; nor, indeed, is it stated that there were any sureties. But it is to be presumed, inasmuch as plaintiff" made no exception of that sort, that there were sureties, and that both principals and sureties continued good to the capture of Newbern, in 1862, which suspended the Courts and made intercourse impossible between the debtors who resided within the United States lines and the guardian, who • resided without. Between 1855 and 1862 both principal and surety remaining good, there would have been no additional security obtained by renewing the notes in the name of the-*542guardian as payee. The only difference would have been that in the last ease they would have carried compound interest, and the guardian was hold responsible for that, which he might have made if he had collected and reinvested the interest annually. In that case, it is said, “ It has never been held that a mere neglect to change an investment amounts to a conversion of the security. The guardian, therefore, cannot be hold liable for the loss 'of the notes merely by reason of his omission to change their form, or to take others payable to himself as guardian.”
That was meant of course in reference to the facts in that case, where the original security was and continued to be good while it was possible to change it, and where the only change which the guardian was complained of for not making, was in the name and title of the pajme. In this case the executor neglected to reinforce the security after the failure of the principal, and took the note of the surety without security, when for aught that appears, he might have obtained it. *
So much of the judgment below as declares that plaintiff is not entitled to the immediate payment of what is unpaid of the principal and interest of the legacy to her is reserved. And go much as declares that the defendant is personally liable for such portion of the note of Powell as he has not paid to the plaintiff is affirmed. It is referred to the clerk of this Court to state and report and account of what is due upon the legacy. A judgment may be drawn in conformity .to this opinion.
The plaintiff will recover her costs in both cases.
Judgment accordingly.