The People against Pleas and Clark, 2 Johns. Cas. 376

Kent, J. delivered the opinion of the court. It seems to be a just inference from the facts, that the act of the administrator in 1784, in entering into a composition with the claimant for the leasehold estate for 750 dollars, was

an act done in good faith, and one that appeared to him, at the time, to be for the interest of the heirs of the intestate. The counsel who was consulted, advised it, on the ground that the recovery of the claimant could not be resisted ; and the widow, who was entitled to one-third of the value of the lease, and the son, who was of age, and entitled to one-seventh of the same, acquiesced therein ; and their approbation of the conduct of the administrator as being at the time judicious and honest, is to be also inferred from the bond of indemnity which they executed to him five years afterwards.

Under these circumstances, it appeared to me at the trial, and does still, that the administrator ought not to suffer for the surrender of the lease in 1784; and that the decision of the court of chancery in the case of Blue v. Marshall and wife, (3 P. Wms. 381,) goes to the point of his protection.

That was a bill filed by a legatee against an administrator, with the will annexed, to account for 200l. and it appeared that the testator was possessed of a term for sixty years, which he had leased for thirty years, at the rent of 100?. perannum, tad that at the time of the testator’s death, there was 125?. of rent in arrear, which soon amounted to 225?. and the tenant becoming insolvent, the administrator, without consulting the legatee, released to the tenant the arrears of rent, amounting to 225?. and also advanced him 20?. out of his own pocket, upon condition that he should quit the possession, which was accordingly done.

On *these facts it was insisted for the complainant, that as the administrator had voluntarily released the debt of 2251. and that too without consulting the plaintiff, the legatee, he ought to answer for it.

But Lord Chancellor Talbot decreed, that the administrator had done nothing but what was prudent; and that, as the tenant was unable to pay, and might, if he choose, be vexatious, and have put his landlord to great trouble and delay, the release seemed to be for the benefit of the testator’s estate; and he accordingly excused the administrator from the payment of the debt released, and even allowed him the 201. he had advanced out of his own pocket, as being one entire consideration for the tenant’s quitting the possession.

It appears to me that the circumstances constituting the defendant’s excuse in the present case, are full as strong as in the case I have cited. But the next qirestion is, that no release was, in fact, executed by the defendant, and as he became satisfied, afterwards, as appears by his own declaration, that the leasehold estate was not forfeited, but belonged to the heirs of the intestate, was he justifiable in acting again, to complete the contract 1 In my present view of the subject, he was not.

There were circumstances in the year 1799, sufficient to satisfy the defendant, and which did satisfy him that the original agreement was founded on mistake. The consent to surrender the lease in 1784 was made under the impression that the lease was forfeited, and that a defence would be unavailing. When it was afterwards discovered that the lease was not forfeited, or the defendant had reason to conclude so, he ought to have desisted from any farther interference, and have left the claimant to resort to chancery for the execution of the contract. There the truth could be investigated.

Nor ought he to have arrested the suit at law, instituted for the benefit of the minor children, and to determine to *whom the estate legally belonged. Acting as trustee for ethers, he was under obligation not to carry the original agreement into effect, after he had become satisfied that it had originated on his

part in mistake, and upon the presumption of a fact which did not exist. So far from carrying into execution such an agreement, a court of equity will relieve against contracts founded in mistake and imposition. The case of Cocking v. Pratt, (1 Vesey, 400,) is very applicable to the present case. A. dying intestate, left a widow and a daughter, who entered into an agreement concerning the personal estate. Afterwards the representative of the daughter brought a bill to set aside the agreement, and obtain a just distributive share.

The mother insisted on the agreement; but Sir John Strange, the Master of the Kolls, held, that the daughter did not intend at the time of the agreement to take less than her legal share, though what that was did not clearly appear to her. Whether there was a suppressio veri did not appear, but as the daughter had, no doubt, intended to take her full share, and it appearing afterwards that she had not taken all she was entitled to, and that the difference was very considerable, the agreement was set aside.

In the present case, the administrator appears to have discovered that the estate which he had formerly agreed to surrender, under the impression that it was forfeited, was not forfeited, but belonged to the heirs of the intestate; and that instead of receiving a composition price, the heirs was entitled to the full value of "the estate. Here then was a locus penitentice for the administrator; and his subsequent act, after that discovery, in releasing the action and the estate, must be adjudged wilful, and done in fraud.

He became, therefore, properly chargeable with a devastavit to the amount of the difference between what he originally took for the estate, and what was its real value. *On this ground I am now satisfied, the direction to the jury, and their finding, were wrong; and that the verdict ought to be set aside, and a new trial awarded, with costs to abide the event of the suit. Radcliff, J. absent. New trial granted.() (

a) See Williams on Executors, 1278, 1279, 1281-1284.