#### JOSEPH M. MEANS & AL. vs. ALEXANDER HOGAN & AL.

Where the cliildren of a person, who had died intestate, appoint an Attorney to collect moneys, which were due to their father in his life-lime, and collects them accordingly, such'attorney, cannot, when he is called upon to account for what he has received, object that it belonged in law to the administrator of the deceased father.

Receiving the money, as belonging to his principals, he cannot afterwards deny their right to it.

This cause, having been set for hearing in Randolph Court of Equity, upon the bill, answer and proofs, was, at Spring Terra 1843 of that court, ordered'by' consent of parties to be transmitted to the Supreme Court to be heard.

Upon the hearing, the following appeared-to be the facts of the case :

In 1794, Thomas Lytle of Randolph county died, leaving-some personal property and two pieces of of land' in that county, which by his will he bequeathed and devised to his wife Catharine for life, and after her death upon certain limitations over which failed ; so that there Was-an intestacy as to the remainder, after the death- of the wife. The testator appointed several executors, of whom William Bell was the survivor, and he died in 1821, having made a will and appointed Robert Walker and William Welborn the executors. Catharine the widow died-in 1812, intestate and- without issue. Upon her death, Bell, the executor, took into his possession the slaves belonging to his testator, and held them during his life, and, at his death, his executors, Walker and Welborn, took them. The testator, .Thomas Lytle, left no issue, so that his personal estate undisposed of was distributable, one-thi rd part thereof to his wiíé, and the other- two-*528third part amongst his next of kin, who were his brother, Henry Lytle, his four half brothers, and his half sister Jane intermarried with James Montgomery. The real estate also descended to the brother Henry, or to him and the half brothers equally. John Means, one ot the half brothers above mentioned, died intestate in Pennsylvania, leaving six children his heirs at law aud next of bin, namely, Nathan Means, James Means, John Means, Nancy Means and Joseph M. Means, and Jane, intermarried with Nathan Woods. On the 19th January, 1829, Joseph M. Means and Nathan Woods and his wile Jane, then residing in Pennsylvania, executed a letter of attorney to William Hogan of Randolph county in this State, authorizing him by all lawful means to ask,.demand, sue for and receive in their names, or in his own, to their use, such share and shares of the said estate, real and personal, that had belonged to the said Thomas Lytle, as they the said Joseph M. and Woods and his wife, were entitled to, as two of the children of the said John Means deceased, who was a half brother of the testator, Lytle. And the present bill is filed by those persons, Joseph M. Means and Nathan Woods and his wife Jane,- against the executors of the will of said Hogan, who has since died, praying a discovery of the sums and estates, to which the plaintiffs are respectively entitled, or which came to the hands of said William Hogan, as the attorney of the plaintiffs. The bill alleges that in 1823 a bill was filed in the Court of Equity by certain persons, who were the children of the testator’s brother Henry Lytle, (then deceased,) against Walker and Welborn, the executors of Bell, and against the original testator’s half brothers and sister, Benjamin, Adam and Andrew Means, and James Montgomery and his wife, in which an account and distribution of the said personal estate was sought, and under which the same was decreed. The plaintiffs state, that they were not parties to the suit, but that such proceedings were therein had, that a large number of slaves belonging to the estate were ordered to be sold by the master for distribution, and it was referred to the master to take an account of the estate, and to answer *529and report the persons entitled to' the same, and the proportions to which they might be entitled, and that, in that manner, the share of their father John Means deceased in the personal estate was ascertained, and the said Hogan reported and declared in October 1831. to be entitled thereto, as a purchaser thereof from the children and next of kin before mentioned of the said John Means deceased, as also to the shares of Adam .Means- deceased, and Jane' Montgomery deceased, under purchases from their respective next of kin.— The bill further charges, that it is not true, that the plaintiffs made a sale of their share or any part of the estate to said Hogan, although it may be true that their brothers did', and also others who had an interest in the property; and they aver that Hogan, in respect to them, acted as agent only, for a compensation that might be. reasonable. It also' charges, that, at the sale of the negroes by the master, Hogan purchased most of them at an undervalue, upon a representation that he was buying for the owners, and thereby kept off other bidders, arid that in that manner he made large profits, by a re-sale shortly afterwards, of which they claim the benefit. The bill further states, that in April, 1830, a petition was exhibited in the Court of Equity by the said William Hogan and others, in which it-was stated that the said two tracts of land, which descended from the testator Thomas Lytle, vested in his said brother Henry Lytle, and his four half brothers, aforesaid, and that (amongst others,) the children of the said John Means deceased, (including the plaintiffs,) had conveyed their shares in the said lands to the said Hogan, being one equal undivided fifth part thereof, and praying that the land might be sold for the purpose of partition and the proceeds divided as ■ therein set forth: And that upon the petition it was decreed, in April, 1831, that the master should sell the said land ; and, at the sale, the said Hogan became the purchaser, and was allowed to retain out of the purchase money the share thereof belonging to the plaintiffs, who submit to affirm the sale and receive the'purchase money and interest. The- defendants put-in their answer, and therein admit the letter of attorney *530made to their testator by the plaintiffs, and also the several suit's and other proceedings stated in the bill, and refer for more certainty to the original proceedings themselves.— They state their belief, that their testator did make a contract with the plaintiffs for the purchase of their shares of the estates, but they admit that they have no written or other evidence ot such contract. They, however, insist on the reports and the form of the decrees in those suits, as establishing their testator’s rights, and urge that, if the plaintiffs will not be bound by them, as not having been parties thereto, they cannot take advantage thereof, but may litigate now, as if no such previous litigation had existed. — . The proofs are not voluminous, except so far as they consist of the proceedings in the suits referred to in the pleadings, the originals of which, by the consent of the parties, have been laid-before us. By them it appears that William Hogan claimed to represent in those causes the brothers and sister of the plaintiffs, and eight or ten other claimants, under powers of attorney from them respectively, in each of which, except that from the plaintiffs, it was stated to be irrevocable and upon a valuable consideration and for the use of Hogan himself. But that from the plaintiffs is in the ordinary form of a letter of attorney, and it is expressed that the acts thereby authorized are to be for the use and benefit of the principals. On the 10th of October, 1830, Hogan wrote to the plaintiffs a letter in the following words: “No doubt yon have long expected to hear from me. I should have written but for the following reasons: 1st. Your letter of attorney did not come to hand until nine months after it started from Washington City. 2dly. I was about setting out to Alabama, where I spent the winter, and on my return, I found my lawyer had omitted getting an order to sell the land, 3dly. I then came to the conclusion not to write until after our Superior Court, when I fully expected to obtain an order. But I am sorry to inform you, that I was disappointed in consequence of the Judge’s requiring the newspapers to be produced, in which publication was made, and I could not then get them. Consequently I have to advertise a*531gain. But I shall no doubt obtain an order of sale next spring, after which you shall hear from me.”

JMendenhall and Iredell for the plaintiffs.

Morehecul for the defendant.

Ruffin, C. J.

There is no evidence tending to impeach the fairness of the sales made by the master, or of the conduct of Hogan in mailing his purchases. He was the largest owner of the property offered, and might fairly bid to enhance the price, and many others interested were present and submitted to have the report of the sales confirmed.— On the other hand, the defendants have failed to establish a purchase by Hogan from the plaintiffs. Indeed the court is satisfied, that the truth is otherwise. The difference in forms of the several powers of attorney is striking, and the presumption is that an attorney acts for the benefit of his principal, unless the contrary is clear. But Hogan’s letter makes it plain, that he had not purchased. If he had, he would have taken more pains to secure the'assignment than taking it in a letter of attorney, that should be nine months in reaching him, and, upon that delay, he would have made enqui-ries about it and applied for another. Besides, it is evident the interest and right remained in the principals; for that only could have made them wish for information of his proceedings, or make it his duty to communicate it. The letter, indeed, mentions the land only, but that is in reference to an order for the sale of it. The agency embraced the whole •estate, personal-and real, as expressed in the power of attorney, and at the time the letter was written the money for which the negroes were sold was not collected, nor the .claimants ascertained. The meaning was, that when the land should be sold, he would write them at large-upon the whole business. There is no intimation in the answer, that Hogan had a distinct authority as to the personal estate, or bad made a purchase of that prior to the letter of attorney .of December, 1829. Nor are the-.plaintiffs concluded by *532the terms of the master’s report, and the decrees in those cases for payment to Hogan, as the asssignee of the plaintiffs, for they were not parties to the suits. Yet we think that they may avail themselves thereof so far as to shew, what sums and on what account their attorney received for them. It is immaterial how their interest in the estate was ascertained, whether by litigation, arbitrament, or accounting between the parties ; their attorney is liable to them for whatever he received for and as their shares of the estate_ After receiving their money as theirs, he is not at liberty to deny their right to it, and to say, for instance, that the personal property belonged to their father’s administrator and not to them. That would have been an objection that the parties, who then had to pay, might have urged. But if they chose to waive it, and to pay over the money to the attorney for his principals, the latter may compel the former to surrender it to them. The plaintiffs must therefore be declared entitled to such sums as their attorney received un,der their authority, and it must be referred to the master to enquire what they were, and to make the proper charges for interest if the master should think the plaintiffs entitled thereto, and also to make all just allowances for a reasonable compensation to the defendant’s testator and for the expenses incurred in his agency.

.Pjsh, Curiam. Decreed accordingly.