
    Jones v. Williams.
    [October Term, 1799.]
    Executors — Account of Administration — Case at Bar. —EX’rs who appear to have made no advantage by it, will not be denied justice for having- failed to make up an account of their administration, tho’ strictly speaking it is perhaps tHeir duty.
    
      Executor a Legatee — Commissions.-—Commissions disallowed an executor where a legacy is given him.
    Surviving Joint Tenant — Quitrents. — Quitrents allowed against the representatives of a surviving joint tenant under the circumstances.
    This was an appeal from a decree of the High Court of Chancery in a cause removed thither from the County Court of Nottoway, by writ of certiorari. The bill states that William Watson made his will and appointed several executors; but that Edward Jones was the acting executor. Who dying, Richard Jones became the acting executor. That Watson left four daughters to whom he devised a tract of 2650 acres of land. That Thomas Williams the defendant intermarried with Elizabeth one of the *said daughters, and received the whole of his wifes proportion of the said Watson’s estate, except of the cash supposed to be in the hands of the said Richard Jones, which was unsettled.- That in the year 1764 the said Richard. Jones paid the defendant £77. 15., through - the •hands of Nei. Buchanan. That afterwards the defendant requested .¿TOO., but was told he had no title to it, whereupon he.. proposed that it should be lent him, and that he would refund it, if on settlement it should appear that he had no title. That the loan took place accordingly, and a-bond for the money was given in conformity thereto, which with other, papers has been lost. That the said Richard Jones is since dead, and the plaintiffs. are his executors.. That since his death, .an order of Amelia County Court was made by consent of the legatees of the said William Watson and the plaintiffs for settling the accounts of the administration. That the commissioners made a report, whereby it appears that Watson’s- estate is indebted to the estate of the said Richard Jones. That ac-. cording to that report, the defendant will be found to owe ;£30. 4. • 4. exclusive of the' ^£100. which he refuses to pay. Therefore the bill prays a decree for payment and general relief.
    The answer admits that the defendant has received all his proportion of. Watsons estate except the unsettled account; denies the charges of the bill relative to - the £77. 15. ; and says that the defendant has a fair copy of all his dealings with Neil Buchanan, and there is no credit therein for the same; admits that the defendant. received the ;£100., for which he gave a receipt, as for part of his wifes portion; but denies that he gave any bond to refund; although, he told the said Richard Jones, if he - had received more than his proportion, that he would refund; states that he had often requested the said Richard Jones to come to a settlement, as he believed there was a balance due him: That the said Richard Jones lent Erskine, who married one of-the daughters of Watson about *;£200., which he afterwards told the defendant he was afraid would be lost, and asked him what he had best do, with respect thereto; That the defendant told Jones there would be some small estate of Erskine’s after paying a mortgage to Speirs & Co-, but, Jones said he was unwilling to distress Mrs. Erskine.; admits the order of Amelia Court, but says that the defendant was not present at the settlement, and calls on the plaintiff to support his allegations by legal evidence.
    The evidence as to the ^77. 15. was.chiefly circumstantial, and there was a variety of evidence as to the other parts of the case. The -commissioner debited the defendant with a proportion of the quitrents, and disallowed the £77. 15.
    The defendant objected to the quitrents, but the Court of Chancery allowed them; and approved of the commissioners disal-lowance of the £77. 15.
    The plaintiff appealed from the decree of the Court of Chancery to this court.
    
      
      Executors — Balance Due — Interest.—in Miller 7. Beverleys, 4H.&M. 416, the principal case is cited as authority for the proposition that an executor should be allowed interest upon a balance due him, on his administration account; because it is natural justice, that he who has the use of another’s money, should pay interest for it. For this proposition the principal case is-cited in the following: Whitehorn v. Hines, 1 Munf. 587; Davis v. Newman, 2 Rob. 668; Tazewell v. Saunders, 13 Gratt. 369; McVeigh v. Howard, 87.Va. 601, 13 S. E. Rep. 31; Stuart v. Hurt. 88 Va. 345, 13 S. E. Rep. 438. The principal case is cited in, Hurst v. Morgan, 31 W. Va. 531, 8 S. E. Rep. 291.
    
    
      
      Executor a Legatee — Commissions.— Commissions are disallowed an executor when a legacy is given him. Anderson v. Piercy, 20 W. Va. 299, citing Jones v. Williams 2 Call 102. See monographic, note on ’Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   PENDLETON, President,

delivered the resolution of the court.

This is truly stated to0 be a stale transaction, commencing in 1752: It was the administration of a small estate which was devised in 1765, and yet no account is settled • by, the executors till after all their deaths in 1786, when a partial one is made up by the executors of the survivor.

This had-a bad aspect respecting the executors; but since no fraud or misconduct is imputed to them-in the management of the estate, nor any apparent advantage, which they could, or did derive to themselves from the omission, but on the contrary a probable disadvantage, in having articles disallowed for defect in the proof, which they might have justified at an earlier period, we inclined to attribute it to inattention in them, *and confidence cm the part of the legatees in their integrity, rather than to any impure motives, and therefore think it would be too severe to deny them justice on account of that - omission of a duty; for .such perhaps it is, although the law only directs them to render accounts when desired.

1 When the children came of age, they might make private adjustments of the accounts with the executors, to their satisfaction,, without reducing them to form. This appears to have been the case as to Edward Jones the principal acting executor, from 1752 to 1758, who never "made up any account with the court, yet, till before the Auditor’s in 1796, we hear of no complaint on that head; on the contrary, the defendant acknowledges that' he received all his wifes part of the estate, except any money which might appear to be in the hands of Richard Jones.

With these’ impressions, the court proceeded to examine the justice of the case, and think the "decree right ' as to the two articles discussed in court, disallowing the £77. 15., as not sufficiently proved, though probably just arid allowing ‘ the items for thequitrents.

Mr. Wickham was right in his position that joint obligations survive as well as joint rights, ‘but it’does not apply; since here was no existing obligation, whén the survivorship took place'.

The testator provided a fund in the hands of his executors to pay these quitrents, which they .yearly applied accordingly, and are allowed those payments as a set off against that fund; to the surplus of which, the defendant was entitled one-fourth.

We then considered the claim of the executors for commissions and interest on his balance.

The commissions are disallowed, because a reward is devised to the executors by the will.

*But interest is allowed, because it is natural justice that he who has the use of another’s money should pay interest for it. -

It was objected that the executor had the use of the money previous to 1774 without accounting for interest; a just objection, if true. We examined the account from 1759, when Richard’s administration commenced, to 1762, when Williams ■ married; the balance then in Richard’s hands was ¿£125. 14. 10.; he paid ¿£83. 15. 3., and from that time the estate was in his debt to 1774. It is true the disallowance of articles now turns that balance against him, so. as to reduce the ¿£100. advanced in 1774 to :£53. 13.-4., on that balance as an agreed loan, the plaintiff ought to have interest. There is therefore error in not allowing that interest. ■ And the decree must be reversed with costs. And a'decree entered for ¿£53., and interest from July 29th 1774, and the other reservations in the decree.  