Estate of Fisher

Counsel must be content with a summary of conclusions of the court, as I have no leisure to extend the reasoning, although I have well considered the case and the arguments.

1. The duty of the executor:

It was not only the duty of the executor to seek to recover assets of the estate, but had he forborne such endeavor, he would have been liable as for malfeasance or nonfeasance: Code Civ. Proc., title 11 (of part 3), c. 8, Powers and Duties of Executors, etc.; secs. 1581 et seq.; c. 10, Accounts, etc.; art. 1, secs. 1616 et seq.

The discussion as to the bona tides of the suit against the Dudleys seems to be concluded by the opinion or “decision” of Judge Hunt in Wright v. Dudley, which says: “While the proceedings in this case were hastily commenced, yet I am not prepared, from all the evidence in the case, to say that they were instituted in bad faith”j also, the “decision” *99 says that “the questions of law presented on the trial were difficult, and in some respects serious, and their solution by no means an easy matter.” A ease presenting issues of a “serious” and “difficult” character, and occupying many days in trial, in which a nonsuit was refused, must have afforded some…