The exceptions filed by the plaintiff and defendants raise objections to nearly every part of the report of the referee. We will consider the legal questions which *762arise on the report, without following the precise order in which they are. presented.
Cornelius Womble died in the Spring of 1863, leaving a will in which he disposed of his estate by various devisés and bequests. At May Term 1863, the will was admitted to probate, and Jehu J. Womble, one of the executors, was duly qualified. As there was no money on hand, under ordinary circumstances it would have been the duty-of the executor to sell the personal property, and pay off the debts of the estate. Upon inquiry, he ascertained that the principal creditors would not receive Confederate money in payment of their debts.
In the summer of 1863 Confederate money was the only currency of the country, and the personal property could not have been sold for its full value if payment had been demanded in specie.
Under these circumstances, the executor, with the assent of most of the creditors and other persons interested, placed the property in the possession of the widow, the principal legatee, to be kept until there should be a more favorable time to make a sale. We think that the executor acted wisely in not selling the property, and that he is only accountable for such property as was wasted or lost by the negligence of his agent. He was compelled to have an agent to take care of the property, as he was conscripted and carried to the army in 1864, and died in the military service. He selected a prudent agent who was interested in taking good care of the property, and is not liable for loss occasioned by ordinary use, natural causes, accident, or by operation of law: Finger v. Finger, ante 183; Fike v. Green, ante 665.
The real estate was not under the control of the executor, and the rents and profits did not constitute hssets.' The real estate passed to the devisee subject to the power of the executor to obtain a license to sell for the payment of debts *763upon a deficiency of personal assets; Floyd v. Herring, ante 409; Fike v. Green, ante 665.
The executor, prompted by natural affection, allowed tbe negroes to remain on tbe farm, and labor for tbe support of Ms aged mother and dependent sisters, but M law he is chargeable for hire, if all the negroes, taken together, would have yielded a profit. His kindness to his mother did not free him from legal obligation, but it ought to appeal successfully to the generosity of his brothers and sisters.
The fourth exception of the defendant must be allowed so far as it relates to taxes on the land, as it was not the duty of the executor to pay such taxes.
The fifth exception of the defendant must be allowed, as the articles were not purchased for the benefit of the estate. But the amounts must be properly scaled.
The fifth exception of the plaintiff must be allowed, as the account of S. G-. Womble was a debt against the estate.
The sum of $430 mentioned in the will, is a part of the personal estate, and is a charge upon the Moran tract of land, and must be collected by the present executor and accounted for in his settlement.
As the report will be reformed, we have not noticed the exceptions as to the commissions allowed.
' There was error in the ruling of his Honor upon the exceptions, and the report must be reformed in the particulars above indicated.
As both parties appealed, and some of the exceptions of each side are allowed, neither party is entitled to costs M this Court.
Let this be certified.
Per Curiam. Ordered accordingly.