
    Turney and others vs. Williams, Executor, &c.
    Settlements made by an executor with commissioners appointed by the county court are jprima facie evidence in his favor. If they are impeached for error or fraud, the facts must be shown by those who question their correctness.
    When a settlement with commissioners tabes place in the presence of, and with the knowledge of the parties interested, they being of full age, it has the force and effect of a settled account, and can only bo opened by a bill brought to surcharge and falsify.
    But when the parties were not present, or were infants, the settlement is not regarded as a settled account, the errors of which must be particularly specified in the bill before they can be proved; the errors may be opened and reviewed by a bill asking for an account generally.
    Interest is not chargeable against executors as a matter of course; they 1 are liable to pay simple interest, or compound interest, according to the circumstances of each case.
    When the exigencies of an estate require an executor to keep money by him ; when he has not unreasonably delayed a settlement of his accounts; when he has made promptly a just and true exhibition of the receipts and disbursements, ho is not chargeable with interest on any accidental amount he may have had in his hands, and on which he received no interest.
    But where an executor receives interest, when he uses the money of the estate for his own benefit, when he keeps the money by him without a reasonable ground for doing so, when, by long delay in settling his accounts, the use of the money by him may be inferred, in all such cases the interest will be charged with a view to reach the profits, which, from the facts, it is presumed he made.
    Where an executor has made several settlements with commissioners, in each of which a balance is claimed in his favor,- when in fact, upon a true settlement of the accounts, he, at the time of the settlements was indebted largely to the estate, these facts furnish conclusive evidence that he employed the sums actually due by him for his own use, and he is chargeable with interest upon them.
    It is no reason that an executor should not pay interest, that the distrib-utees were infants and had no guardian, if the facts show he claimed the money as his own, and when, from his erroneous and incorrect statements of account to the court, whoso duly it was to appoint a guar • dian, it appeared that the estate was insolvent.
    
      It is the duty of an executor, when he has money on hand belonging to the estate, and there is no guardian or person authorized to receive it, to bring it into court; if he does not, he is liable to pay interest.
    When a bill is filed by distributees for an account, and the executor, by his answer, insists the estate is indebted to him, when, in fact, upon a correct settlement, it is ascertained he was indebted to the estate, the fact that the cause was continued several years by consent will not excuse him from paying interest during the time the cause was so continued.
    The bill of complainants was filed September, 1819, and charges that Peter Turney died in Smith county in the year 1804, having first made his last will and testament,.and therein appointed Wm. Martin and defendant, Sampson Williams, executors; that Martin renounced, and that Williams qualified at June term, 1804, of Smith county court. That testator directed sundry tracts of land, and some personal property, to be sold for the payment of his debts, and the residue of his estate to remain in the possession of his wife during her widowhood, for the support of his family, &c. and at her death all of his estate, real and personal, to be divided between complainants and James Turney; but if his wife mar> ried, she was to have an equal portion during life, which, at her death, was to go to complainants.and said James, and a division was to take place oh said marriage. The bill also charges, that the said widow intermarried with one Thomas Farris in 1807; that at testator’s death there was on hand a large amount in cash, and from one to two thousand acres of land warrants; that large sums were due to testator, and that he had other valuable lands and sundry negroes. The bill further charges, that defendant received sundry land warrants, which he sold or applied to his own use; and that he also sold the ne-groes and all the personal estate and received the proceeds; that he was negligent in the discharge of his duties as executor, and guilty of a breach of trust, &c. and prays for an account, &c.
    The answer of defendant was filed in 1832, wherein he says, there were some difficulties in the titles to the lands directed to be sold, and that none was sold except the tract in Stuart county; that he received no cash left at testator’s death; that he looked among Turney’s papers and elsewhere for warrants, but found none; c£that testator had some small notes and accounts against a few individuals, but they could not be collected; the accounts were undated and disputed; and he sued on the notes and failed; so that no debts ever were collected.” Defendant admits the receipt of two hundred and twenty-eight acres of land warrants from Lytle, which he applied to the use of the estate; also three hundred, and twenty acres found since the filing of the bill, which he used; and says these are all the warrants he ever received. Defendant also admits the sale of sundry negroes, by the widow, and that after her marriage he sold the remaining negroes and all the personal estate. The defendant says,, complainants are largely indebted to him, and that there are liabilities still hanging over him against which he prays to be protected. He exhibits, as part of his answer, two settlements made with commissioners of the county court, and a schedule of vouchers, (as part thereof,) and says, “he refers to a settlement made with him by commissioners of the county court 10th May, 1814, as part of his answer: it is marked C; it was accompanied with vouchers, a list of which is herewith exhibited and made part of this answer, marked D; which, with the interest paid on the vouchers, the defendant’s account for various expenses in attending to the estate, his two and a half per cent, commissions allowed by the commissioners, and three hundred and eighty-three dollars forty-three cents, the balance due on former settlement, will make the amount of three thousand two hundred and fifteen dollars twenty-four cents, reported in his favor by the commissioners in 1814.
    Defendant insists that these settlements should protect him to the extent of the matters embraced in them. The vouchers aforesaid can be produced on the hearing if deemed proper by the court. They are filed with the county court clerk. He has expended money since the last settlement, to the amount of twelve or fifteen hundred dollars for said estate, in paying judgments, lawyer’s fees, travelling expenses,” &c.
    At July term, 1832, a decree was made for an account, and to the report of the master exceptions were filed by both parties, and at July term, 1S34, the matter of all the exceptions not previously decided were settled by the Chancellor, and a balance found against defendant of five thousand dollars, of which complainants were entitled to five sevenths, to wit, three thousand five hundred and seventy-one dollars forty-four cents, and for which a decree was pronounced in their favor. From this decree defendant appealed.
    Other facts upon which the action of the court was grounded will be found correctly stated in the opinion of the court as delivered by Judge Green. The argument of Mr. Hart also contains so particular a history of the case, that the whole is inserted with a view to a more correct understanding of it. ,
    
      Wm. Hart, for complainants.
    A question has been presented by the defendant, arising on the decretal order of the Chancellor directing an account, which will be noticed before entering upon the exceptions filed to the report of the clerk and master. It is insisted for the defendant, that he is protected by the settlements made with the county courts; that these settlements have the force and effect of a stated .account between the parties, and that they cannot be opened for examination except upon a bill filed to surcharge and falsify.
    Complainants admit the general rule, that after the account has been settled and stated, it should not be opened unless for fraud, or errors distinctly specified in the bill of complaint and supported by evidence. In ordinary cases of account between debtor and creditor, both par- . -t . ii *in ties are actors; each is presumed to have examined all the items, and to possess the necessary information touching them; and the actors are those who are to be affected by the settlement. But complainants insist, that this rule does not apply to settlements made by executors, &c. with the county court. These settlements are ex parte; the executors are the only actors, whilst those whose interests are to be affected thereby are generally infants. Hence, in cases of settlements by executors, &c. when items are pointed out and shown to be palpably erroneous, so much so a's almost to preclude the belief that the error arose from accident or mistake, the whole account becomes tainted, unfit to be relied upon, and loses its prima facie quality.
    It is believed that the rule applicable to the settlements exhibited in this case is laid down in Stephenson vs. Yandle and others, (5 Haywood’s Rep. 261,) where,the court says, “these settlements' should cease to be prima facie so soon as it appeared that items had been allowed that were manifestly wrong.”
    Some of the prominent errors in the settlements made by the defendant with the commissioners of the county court will now be shown to the court.
    In the settlement of 1808 defendant is charged with a negro sold to Arnold, three hundred dollars, and credited with amount paid Arnold of thirteen hundred and thirty-three dollars fifty cents. In the settlement of 1814 defendant is further credited with a mount paid Arnold of seven hundred dollars, from which deduct amount received as above, three hundred dollars, leaves a balance to the credit of defendant of seventeen hundred and thirty-three dollars fifty cents, which is a palpable error to that amount. It is not pretended that any payment had been made to Arnold at the date of these settlements, except the above sum of seven hundred dollars, and it is apparent upon the face of the voucher that this payment was made by the widow, and m her deposition she says, , J , . , 11 the payment was made in a negro, some horses and other property belonging to the estate. The clerk and master in staling his account on this item, charged defendant with seven hundred dollars, the amount of the property given to Arnold in payment, and credited defendant with seven hundred dollars, the amount of the payment. The defendant did not except to either the item of charge or discharge as allowed by the clerk and master. In the settlement of 1808 the defendant is credited with the amount of testator’s note to Jackson, and no deduction is made for a credit on said note dated in his lifetime, of thirty dollars. In the settlement of 1814 he is credited with the amount of Brittain’s judgment. Part of this had been paid prior to 1808, and credit had been allowed in the former settlement, say eighty-six dollars. The amount paid Mrs. Ballow is credited at seven hundred and thirteen dollars, whilst defendant, in his discharge, claims five hundred and thirteen dollars. He is also credited with amount paid Pharis of one hundred dollars. This, defendant now insists, was for the purchase of the widow’s interest in the estate, and under which defendant claims as credits against complainant^ one seventh of Cock’s judgment, one hundred and forty-four dollars twenty-eight cents; one seventh of six hundred and forty acres land warrant, forty-five dollars forty-three cents, and widow’s interest in homestead, two hundred dollars.
    In the settlement of 1814, the commissioners have not given the items of disbursements allowed the defendant. The credits are given in a lumping sum; they say, “We find he (defendant) has vouchers to the amount of $2,871 42, and that his accounts to us exhibited, including two and a half per cent, commission allowed on the above, makes an aggregate of $3,215 24, which accounts and vouchers we think just and reasonable, and ought to be allowed. All which accounts and vouchers are here filed.” These accounts are not to be found in exhibit D, which purports to contain all the allowances of the commissioners. The accounts alluded to must (from the answer of defendant) have been , composed of “interest paid on the vouchers, his account for various expenses in attending to the estate, his two and a half per cent, commission, and the balance reported due him on the settlement of 1808.”
    The errors pointed out are all on the discharge side of the accounts, and others of minor amount might be added. But the errors in the charge side of the account are equally palpable. The commissioners wholly omit to charge defendant with amount of account sales of sundry negroes and other property. Exhibit B, ‡2823 28. This sale was in 1808, after the settlement in that year; it included the whole of the personal estate not previously disposed of, and should not have escaped notice. Perhaps, it may be said, the commissioners only took upon themselves to examine the vouchers for disbursements. If so, seeing they have failed to schedule even these, it would be a gross misnomer to call exhibit C a settled or stated account. Other items of charge then existed against defendant, which have been allowed by the clerk and master, and to which no exception has been filed by defendant; nor has defendant filed exceptions to the dis-allowance by the clerk and master of any of the items pointed out in the preceding schedule of errors. Some of the items of account' embraced in the exceptions of the parties will hereafter be presented to the notice of the court, inasmuch as they show the general character of these settlements, the state of the defendant’s accounts, and have a bearing upon the question of interest chargeable against the defendant.
    The clerk and master filed three reports, whilst the matter of account waspending before him; and to these reports numerous exceptions have been filed by the parties. Many of the exceptions are on items of small amount, whilst others of greater amount are believed to require nothing beyond an inspection of the vouchers-, to aid the court in pronouncing upon their validity. Hence none of the exceptions filed by the complainants and sustained by the Chancellor will be brought before the court in argument, except such as are contested here by the defendant, and such as tend to show the true character of other items.
    1. On the charge side of the account, complainants excepted to the disallowance of the following items:— Amount of debt due testator by W. M’Lin, $100, and amount of judgment against P. Hessian, ‡76.
    The defendant in his answer says, “no debts were ever collected.” The defendant never returned an inventory of the estate, and he failed to render a just and true account of his receipts and disbursements. As to the first item, Mrs. Pharis, in her deposition, says, “William M’Lin owed P. Turney one hundred dollars, and Joel Dyer owed some, I cannot tell how much; and they were or could have been collected.” Joel Dyer, in his deposition, says, “P. Turney held two notes against him of one hundred dollars each, the one payable in trade, the other in cash. He was sued on both notes after the death of Turney; he proved the payment of the trade note to Turney, but judgment was rendered against him on the cash note, and he paid the amount of the judgment.” The defendant denies the collection of any debts; Mrs. Pharis names two debtors, and says the amount they owed was or could have been collected; and one of the debtors proves that his debt was collected. Strict proof of items of charge, should not be required against an executor who returned no inventory, and whose accounts contain many and gross errors, especially after each lapse of time. 2 John. Ch. Hep. 621.
    As to the second item, the executor recovered judgment against Hessian 13th June, 1806; execution issued 21st June, 1806, and was returned endorsed by the sheriff" “not satisfied.” An alias execution issued 22d December, 1806, and was returned, endorsed “nothing found.” This debt was lost by the negligence of the deféndant and the sheriff. It must be presumed that there was property to pay the debt when the first execution was in the hands of the sheriff, or he would have made a different return.
    2. On the discharge side of the account, complainants excepted to the allowance of the following item, to wit, amount of Ballow’s judgment against executor, $500. It appears from the evidence, that Turney purchased a tract of land from Taylor, and took his bond for a title, and that he sold one hundred acres of this land to Bal-low, and gave his bond for a title.- These transactions were several years prior to 1798. This tract interfered with an adjoining tract granted to Williams and Boyd, and the part sold to Ballow was included in the interference. It also appears that Turney finding his title defective, contracted with defendant Williams for one hundred acres, to discharge his bond to Ballow, and this contract was also prior to 1798. After the death of Turney, to wit, in November, 1S08, defendant procured a deed from Taylor to Turney’s heirs for two hundred and seventy-four acres of land. And in November, 1808, judgment was rendered in favor of Ballow on the title bond of Turney against defendant for seven hundred dollars. In March, 1810, the defendant conveyed to Ballow one hundred and sixty acres of land.. A receipt is drawn on the back of the transcript of the judgment for five hundred dollars, in full satisfaction of the within judgment, and is dated April, 1810. The receipt, however, was never signed by any person.
    Col. Martin, in his deposition, says, “in 1798,, he purchased a tract of land from Williams, granted to Boyd and Williams, and adjoining Taylor’s tract on the north; that Williams showed him two corners and some of the lines, and also showed him one or two trees marked, standing in the body of the tract, saying he would sell to those trees: that he had promised to let Peter Turney 7 7 7 1 C 1 ■ f 7 7-7 have one hundred acres oí the tract to satisfy a sale which Turney had previously made to Mrs. Ballow, (at a time when he had a claim to said land,) including the place where the said Ballow then lived, and that the one hundred acres would come to those marked trees.”
    “The night after witness made the purchase of Williams, they lodged at the house of Turney; the purchase was spoken of, and the reservation of the one hundred acres as above. Turney said, in substance, that he once had a claim to the land in question, during which he had sold it to Ballow, but finding his title defective he had relinquished it, and had contracted with Williams for the land in order to satisfy his contract with Ballow. And in other conversations he said the same thing. The arrangement seemed to be understood between Turney and Williams, they appearing to have confidence in each other; that eight or ten years after this, Williams run out the land for Mrs. Ballow to the before mentioned marked trees, and there proved to be one hundred and sixty, instead of one hundred acres. Mrs. Ballow then purchased the sixty acres of Williams.”
    Mrs. Pharis, in her deposition, says, “Peter Turney held a bond on Thomas Taylor for the land on which he lived; that be sold part of the land to Leonard Ballow and James Ballow; that Mrs. Esther Ballow got one of the portions thus sold by Turney; that Taylor came to her house after Turnéy’s death, and offered to make her a deed for.the land, and that Taylor said he knew the spring at Mrs. Ballow’s as soon as he saw it; that it was the same spring he had saved.” The witness further says, “whilst Turney was lying on his death bed, after he had made his will, (he was lying very ill) he said to me that he was afraid he had done wrong in appointing Williams an executor; that he was afraid he would take the papers he had sent him about Mrs. Ballow’s land, and we would be troubled about it; that James Ballow told her not to let Williams have Taylor’s bond by any ,, means.”
    From this testimony, it is evident that Turney contracted with Williams for that land as early as'1798; and that there was an instrument of writing touching the contract. What the price stipulated amounted to is uncertain. It could not, however, have exceeded three hundred dollars. Col. Martin, in another part of his deposition, says, “he supposes three hundred dollars would have been within the neighborhood of its value in 1798, unimproved.” Complainants insist, that from the date of this contract, the land belonged to their ancestor; and that until payment of the consideration money, he was a debtor to Williams for the amount thereof. It cannot be expected of complainants to show, at this late day, the payment of the consideration money by direct and positive proof. If a receipt had been given, they could not be expected to produce it. But they say their ancestor had ample means to have discharged- the debt in his life time, and that, as between him and defendant, the debt might have been paid without difficulty or sacrifice. They were both dealers inlands and laud warrants; they lived in the same section of country, were intimate, and there was time sufficient between the date of the contract and testator’s death (upwards of six years) for the payment to have been made. If the debt had not been paid in his life time, would not the defendant, as executor, have shown its existence and claimed to retain the amount in his first settlement with the county court?
    Mrs. Pharis says, “Williams, a long time before Tur-ney’s death, pretended to have some claim to Esther Bal-low’s spring, but afterwards wrote to Turney that he had no claim at all;-that he gave up all claim that he had to said land.” These are the words of a witness unacquainted with legal proceedings, the forms of conveyancing and the technical names of written instruments, conveying title; and they are just such words as such a witness would use in speaking of a release or quit claim. This is the paper that Turney must have alluded to in the death bed conversation with this witness. It is unnecessary to say that defendant, as executor, was entitled to the custody and possession of the papers of testator. If this paper existed at the death of Turney, it probably came to defendant’s hands; complainants cannot produce it. Should it be said that the paper concerned real estate, and therefore the executor would not hold it in his hands, we answer, he took upon himself to arrange and settle the matter of Taylor’s bond for title; and in divers other instances attended to business touching lands and land warrants, to the neglect of such lands as he was directed by the will to attend to and dispose of for the payment of testator’s debts.
    Let it however be supposed, for argument, that the price of the land was not paid by Turney in his life time, complainants will still insist that this item has been improperly allowed as a credit to defendant. It is to be recollected that Col. Martin says the land which Turney had contracted with Williams for, was defined by “marked trees;” that when the land was run out by Williams eight or ten years afterwards, (when the deed was made to Mrs. Ballow) it was found to contain one hundred and sixty acres instead of one hundred acres, and that the defendant then sold the excess of sixty acres to Mrs. Bal-low. The boundaries of the land being thus defined and pointed out by Williams to Martin, previous to their trade in 1798; these marked trees esteemed as the boundary up to 180S, surely the excess of sixty acres belonged to complainants. The defendant received the amount of the sale from Mrs. Ballow,' and has mot accounted for it. Let it not be said that the judgment of Mrs. Ballow was for seven hundred dollars, and that defendant has only charged complainants with five hundred dollars. Mrs. Ballow obtained the one hundred acres of land for which she contracted, and for which she held testator’s bond. Having obtained that, she could demand no more. The judgment was discharged by the conveyance of the land, and it matters not if the judgment had given damages for double the amount recovered at law. Upon this view of the case, the amount received from Mrs. Ballow should have been deducted from the amount originally agreed to be given for the land within the marked and defined boundaries, if unpaid, and the balance would remain as a credit for defendant.
    But there is another view to be presented of this item, which complainants .trust will show conclusively its inadmissibility. We further insist that if Williams held the superior title to the land sold to Mrs. Ballow, yet the bond of Taylor to Turney, covered and included this land; and Turney or his heirs might have received such damages from Taylor, as they might be called upon for by Mrs. Ballow, and that these damages have been lost by the intermeddling of the defendant with the bond of Taylor.
    Mrs. Pharis says, Taylor’s bond to Turney included the land sold to Mrs. Ballow, and she details a conversation between Taylor and herself after Turney’s death, on the subject of this land. “Taylor said he knew the spring at Esther Ballow’s as soon as he saw it. It was the same spring that he had saved.” Are not these just such expressions as a locator of lands might be expected to use? What so likely to attract his attention as a spring? and what so likely to point out to him the spot located after the lapse of years? That Taylor held such a conversation with the witness none can doubt. When Turney, Williams and Martin were conversing on the subject of this one hundred acres of land in 1798, Tur-ney said he had sold this land to Mrs. Ballow at a time when he believed he had a title to it; but finding his title defective, he had contracted with Williáms for the land. Grants intended to adjoin surveys made by the same hand, sometimes interfere-. Indeed, it is not so unusual an occurrence for grants to interfere, as to startle a citizen of this State at the mention of the fact. And in the absence of all other titles under which Turney might have claimed the land, is it not reasonable to conclude, that the grant of Williams and Boyd did interfere with the grant of Taylor; that Taylor’s grant was the title under which Turney claimed the land when he sold to Mrs. Ballow; and that Williams afterwards induced him to believe that the grant of Williams and Boyd was the superior title? It does not, however, follow, that because Turney might admit Williams and Boyd’s grant to be the superior title, that Taylor also admitted it; for Mrs. Pharis says, that Taylor offered to make a deed the same time at which the conversation was held about Mrs. Ballow’s spring. But to return. Col. Martin describes the situation of the one hundred and sixty Williams to Mrs. Ballow as “lyinj Williams and Boyd’s grant, and it adjoining a tract of six hundred anl to Thomas Taylor, and sold to Pet] occupied at the time I made my pü|cb¡ and on which he (P. Turney) died.’: Williams procured to be made to the heírf*Sf^S8rney by Taylor, (and for which he has charged and been allowed compensation,) describes the land conveyed in these words: “Beginning at a buckeye and hackberry, northeast corner to the tract conveyed by Taylor to George Matlock, running thence east with Leonard Ballow’s line two hundred and seventy-eight poles to a stake on the east boundary line of the grant; thence south with the old line of the original survey one hundred and seventy-four poles to a stake, the old corner; thence west with the old line of said line two hundred and seventy-eight poles to said Matlock’s south east corner, a stake; and north with his line to the beginning; containing two hundred and seventy-four acres, more or less, as will more fully appear by the original grant.” This deed is bounded on the east and south by the old lines of the original ' r m i i i i survey and grant ot laylor, and on the west by a tract conveyed by Taylor to Matlock, but on the north it is not bounded by the line of the survey or grant. The beginning mentioned in the deed is not called a corner of the grant or survey, but a corner of land conveyed to Matlock; and the first line, the north boundary, calls to run east to a stake in the east boundary line of the grant. _ Then, it must follow, that Taylor’s grant extended further north than the line called for in the deed; and to extend it north, it would interfere with Williams and Boyd’s grant and include Mrs. Ballow’s place, which lies within the bounds of, their grant and immediately north of Taylor’s, as the lines were shown to Col. Martin by Williams. No reason can be assigned why the deed did not extend to the north boundary line of the survey and grant of Taylor, unless it. was so restricted and limited to prevent the deed from covering land included in the grant of Williams and Boyd. There is no other deed from Taylor to the heirs of Turney to be found in the record, nor iá there any thing in the record to negative the interference between the two grants as here shewn. How did it happen that the defendant undertook to arrange and settle the matter with Taylor, and procure a deed to be made to the heirs of Turney? He surely was the last person who should have volunteered in this business. How did.it happen that in drawing the deed to the heirs, a strip of kmd on the north boundary line, and included in Taylor’s grant, was excluded in the deed? From an examination of the evidence on this item, there can be no difficulty in arriving at the conclusion, that Taylor’s bond included the land to the north boundary line of his grant, and that it included the land sold to Mrs. Ballow. This being granted, then if Taylor’s was the superior, title, Mrs. Ballow could not have b'pen dispossessed of the land; if Williams’ was the superior title, Turney’s heirs might have recovered from Taylor any damages for which they had been rendered liable on the bond of Mrs. Ballow. In this situation of affairs the defendant conveys the land to Mrs. Ballow, settles and closes the business with Taylor, gives up the bond, and receives a deed for the heirs for a reduced quantity of land. If he received from Taylor, on this settlement, the amount which Turney bad contracted to pay for the one hundred acres, he should not claim it against the heirs. If he surrendered the bond to Taylor without demanding damages for the land taken by his superior title, he should not now be heard to set up a demand againstthe heirs for payment. Complainants therefore say the Chancellor erred in overruling this exception of theirs, and this item should have been disallowed.
    3. Complainants also excepted to the allowance by the clerk and master, of sundry items of account for per diem services, mileage, &c. two hundred and thirty-five dollars. In the case of Stephenson vs. Yandle and others, (3 Haywood’s Reports, 123,) it is settled that such charges by executors are wholly inadmissible. Under the decretal order, the clerk and master made an allowance to the defendant for his services, of two and a half per cent, commission on the receipts and disbursements. This latter allowance is not strictly legal, yet complainants have not objected to it. If the defendant had actually expended his money in travelling to and remaining at courts, and at the land office, exclusively on business of the estate, this exception would not have been filed. But seeing from the examination of defendant, that he probably had business of his own at courts, and at the land office, and would have been compelled to attend as a party or witness at the times and places mentioned in his account, without reference-to the business of the estate, it does seem to complainants that these charges ought not to have been presented, much less allowed. In addition to this, the charges are exorbitant, double the sum allowed by law to witnesses attending courts from distant counties. - Suppose our executor, instead of being a witness and a party litigant in court, had been a doctor of medicine? He might, with equal propriety, have doubledi the customary charges made against his patients in his account for services in attending to the estate. Complainants say this exception should have been sustained by the court.
    The following exceptions of complainants were sustained by the court.
    4. Cash alleged to have been left with the widow by defendant to pay debts of testator, two hundred dollars. This item is not supported by any voucher, and defendant has credit for all the payments made by the widow. This item was never brought forward in any of the settlements made with the county court; it has not been noticed in the answer, and is not supported by the oath of defendant. This item is first claimed in the discharge filed by defendant before the clerk and master. In the affidavit made by the defendant in support of sundry specified items in his discharge, he has dodged this item. But, suppose he left the money with the widow, and that she applied it to other uses than the payment of testator’s debts, would it not be a question between defendant and his agent, the widow? It might also be added, that he has settled with the widow, as will appear from an examination of the next items of exception.
    There are four items of exception which stand so nearly related to each other that they may be presented together, they are all dependant upon the same voucher.
    5. Amount paid Pharis for services of widow, and her share of estate, one hundred dollars; interest of widow in homestead, two hundred dollars; in judgment against Cock, one hundred dollars; in six hundred and forty acres of land warrant, forty-five dollars and forty-three cents. The vouchers produced by defendant are in these words:
    “Received of S. Williams, executor of P. Turney, deceased, the sum of one hundred dollars, in full for sundry services performed by my said wife, for the estate of said deceased; also, in full for my said wife’s interest in said estate. February 9th, 1814.
    THOMAS PHARIS.”
    Note. “Said Pharis’ account is not to be included in the above receipt, for any services he may have performed since he intermarried with the said Franky.
    S. WILLIAMS.”
    “Having settled with S. Williams, executor of P. Turney, deceased, in right of my wife, late Franky Turney, for which I am to give him up all papers in my possession, respecting said estate, at any time when called on for that purpose. Also, my interest in the land belonging or owing to said estate. February 9th, 1814.
    THOMAS- PHARIS.”
    1. The services of the widow, &c. The voucher expresses the payment to be in part for the services of the widow; the balance, for her share in the estate, real and personal. How much was allowed for the one or the other, does not appear. The widow made no claim for services, and Pharis could not raise an account after his marriage with her. Jones and others, vs. Woodfolk and others.
    Vouchers for large and numerous sums paid by her, in discharging debts of the estate, are credited to the defendant. He is also credited with commissions on those disbursements, and the receipts of monies by the widow, arising from the sales of land, negroes, and other property. The commission thus allowed, amounts, probably, to more than fifty dollars. Whether the papers relied upon by defendant,'be considered as a settlement, and payment of the sum then due the widow for her interest in the estate, or as a settlement and payment of that sum, and purchase and payment for her whole interest in the estate, real and personal, the'allowance of this item, as a discharge against complainants, must appear to be wholly inadmissible. The defendant, when asking a further credit for the interest of the widow in the homestead, land warrant, and judgment, would rely upon these papers as evidence of a purchase ¡of her whole interest in the estate. But, upon the supposition of a purchase, by what code of laws does he ask that complainants shall pay the purchase money?
    2. Defendant has exhibited the receipt of one of the complainants, (S. Turney,) which shows that he.collected the amount received from the securities of Cock, on the judgments, by the directions of the defendant, and that he distributed the nett proceeds among those entitled. The defendant has not been charged in the account of the clerk and master with this judgment. The complainants have only received their shares, and that, too, by the directions of defendant. If complainant, S. Turney, withholds any part of the judgment to which the defendant may be entitled, under his alleged purchase from the widow, the matter is entirely between the defendant and his agent, complainant S. Turney.
    3. Defendant claims the widow’s interest in six hundred and forty acres of warrant. James Turney and complainants Samuel and Hopkins L. Turney, each assigned his interest in the warrant to John Catron. A grant issued to Catron and the other complainants, Saunders, Price, and Charlotte Turney. This appears from the deposition of Judge Catron. The defendant is not charged with this warrant in the account of the clerk and master. Complainants Samuel and Hopkins L. only assigned their interest in the warrant, and they cannot be liable. If defendant has any claim to the land, under the widow, let him and the grantees settle it themselves: it is no matter of account in this suit.
    4. Defendant claims for homestead. This is the same tract of land, conveyed by Taylor to the heirs, upon the procurement of the defendant. The evidence shows that complainants sold their several lots or portions of this land. Partition of this land was made, pursuant to statute in 1812; and Thomas Pharis, under whom defendant claims, was a party in the suit for partition. The alleged purchase from Pharis was in 1S14. The heirs have not occupied the land. They sold it, some before, and others after the partition. No claim has been set up by defendant against the vendees of complainants; nor against complainants, until the filing of the discharge before the clerk and master. There is no matter of account for rents. In the account stated by the clerk and master, a balance is struck on the 27th February, 1814, and it appears that the defendant then owed the estate the sum of two thousand eight hundred and sixty-nine dollars and ninety cents. The widow was entitled to the one-seventh of the above balance, four hundred and nine dollars and ninety-nine cents; and if to this last sum be added the amount of the credits claimed for homestead, warrant, and judgment, three hundred and forty-five dollars and forty-three cents, we have seven hundred and fifty-five dollars and forty-two cents as the amount claimed by defendant, under his purchase: and this does not include the increased balance due to the widow at the close of the master’s account, for her share of receipts and interest, since February, 1814. If this latter balance was added to the above sum, it would make an amount exceeding one thousand dollars, claimed under the alleged purchase from Pharis of the widow’s interest' in the estate. And still, defendant asks that he may be credited with the amount paid Pha-ris.
    Mrs. Pharis is not a party in this suit, and complainants have not asked for any part of her share in the estate. Thomas Pharis is dead.
    6. Exception was also taken by complainants to the allowance of James Turney’s interest in the judgment and warrant, one hundred and sixty-five dollars. It has been shown, in the examination of these items, on the last exceptions, that James Turney assigned his in- ' . , r „ , , ° , „ terest in the warrant to Catron; and that complainant, Samuel Turney, acting as the agent of defendant, had collected and distributed the proceeds of the judgment against Cock. In addition to this, there is no evidence of a purchase by defendant of the interest of James Turney: nor is the latter a party in this suit. The defendant has not been charged with the proceeds of the judgment or warrant; nor does the defendant claim these credits as disbursefnents for the estate. Any question arising on these items are irrelevant to the matters of ac-1 count submitted to the clerk and master; and this exception of complainants was properly sustained by the court.
    7. Amount paid for mourning dress for widow, twenty-five dollars. This exception would not have been noticed, but that it appears on the schedule of exceptions, which defendant will contest in this court.
    This item of account comes late. After two settlements with the county court, and a settlement with Pha-ris, who intermarried with the widow, this item is first presented in the discharge filed before the clerk and master; and in an affidavit accompanying the discharge, the defendant says, the amount “was paid to Cage and Dillard, or the price was retained out of Sam, sold to Dixon.”- Admit either alternative, and what would justify its allowance, as a credit in the account against complainants? It was a disbursement for the widow, strictly personal in its character. If it has been omitted in the several settlements, and remains unpaid, let the defendant retain the amount out of the balance due to Mrs. Pharis. Complainants saw that the balance due her was large, and they were constrained to except to the allowance of the item by the clerk and master.
    8. Amount of testator’s bond to Amos Lacy, seventy-five dollars.
    “This day, Amofc Lacy located six- hundred acres of land for me, which if it is vacant, and I hold it by the said location, I promised to give him a horse worth seventy-five dollars, or one hundred acres out of the said tract, to be taken off one corner of the said tract, and to be of equal quality with the rest of the tract; and he is to have his choice to take the land or horse. The said land lies on the waters of Martin’s creek. Given under my hand and seal, this 11th August, 1800.
    P. TURNEY, [seal.]”
    The defendant, in his answer, says: “As to the Martin’s creek land, defendant states that he never was able to discover that Turney had title to any land lying there, although he searched diligently to ascertain the fact. Turney had given his bond to- Lacy, as defendant thinks, for the conveyance of one hundred acres on Mar-' tin’s creek, which had been transferred to- Miller, to whom defendant gave his bond for a title, and took up Turney’s, not being able to find any title for Turney. On this bond defendant is still liable, and he considers ought to be credited to the amount of his liability. Tur-ney’s bond is mislaid, so that he cannot now produce it. He thinks he will be able to, show, on the hearing, the consideration Turney received, and what credit he should have on that account. He would now state it between two and three hundred dollars.”
    Enoch Carter, (whose deposition was taken by defendant after the court had sustained this exception) says: “I was present when Peter Turney received a horse brute, I think at seventy-five dollars, of Lacy, for which he gave a bond to convey said Lacy one hundred acres of landi which land, I have since understood, lies on the head of the dry fork of Martin’s creek, in Jackson county: and said Lacy sold said bond to one Daniel Miller, who settled on it; and for which I offered Miller about three hundred dollars, in trade; but as there appeared some difficulty about the title, we did not trade; that said Williams, some time thereafter, took up said bond, and gave his own to said Miller for the same land,” &c.
    The land on Martin’s creek was one of the tracts which testator, in his will, directed should be sold for the payment of his debts. The bill charged the sale of all the land set apart for the payment of debts, and also charged the defendant with gross abuse of the trust confided to him. Hence, it became necessary for the defendant, in his answer, to show the sale of this land, and the disposition made of the proceeds; or, to show the reason why it could not have been sold. This latter he does, by setting forth, “that he was unable to discover that Tur-ney had any title to land lying there, (on Martin’s creek) although he searched diligently to ascertain the fact.” Lacy may have sold the bond to Miller, although no transfer appears upon the bond; and Miller may have taken possession of some land on Martin’s creek, claiming it under Turney. These are unimportant inquiries. As to the apprehended liability of defendant, on the bond given by him to Miller, when he took up Turney’s bond to Lacy; that was not insisted upon before the clerk and master, and no credit' was allowed therefor. It is to be regretted, that the defendant should have given a bond to Miller, which would render him thus liable: when it should have appeared to the defendant, from an inspection of testator’s bond, that no recovery could have been had thereon, against Turney, or his estate, unless the land located by Lacy was “vacant,” and Turney or his heirs “held it by said location.” The deposition of Carter does not help defendant on this item. This witness will have it, that Lacy delivered a horse to Turney, in payment for land on Martin’s creek, and took a bond for title: whereas, the bond shows that Lacy located land for Turney, who promised to give Lacy a horse, if the title should prove to be good. “Turney’s bond was mislaid,” and the witness’ memory failed him, or he has detailed another and different transaction, about which no question is raised in the record. It now appears, however, that this bond was presented to the commissioners, in the settlement made with the defendant, in 1814, and was allowed as a credit. This allowance, by the commissioners, is to be added to the list of errors already pointed out in, that settlement. It could have been allowed only, upon the supposition that Tur-ney’s heirs held the land under the location, and that defendant had paid the horse, or its value, to the holder of the bond. The answer negatives the supposition, that this proof was before the commissioners, by showing', conclusively, that payment ought not to have been made by the defendant.
    
      9. Amount paid Edward Jennings for locating, three hundred dollars. This is the last item of complainants exceptions which will require notice. The item wras rejected by the clerk and master, on his first report, and defendant excepted. Upon the argument of the exceptions, at January term, 1834, the court left this item open before the clerk and master, for further proof: the item was allowed by the master in his next report, and complainants excepted. Upon the hearing of complainants’ exceptions, the court sustained this exception, and the item was disallowed.
    It is to be recollected that settlements were made by the defendant in 1808 and in 1814. This item was not noticed in either. The answer is silent on this item, and it was first presented in the discharge account, filed by the defendant before the clerk and master. It has not been sanctioned by the oath of the defendant, and has nothing for its support but the uncertain and contradictory deposition of Edward Jennings. This witness says: Peter Turney was indebted to him one half of a locative interest in a tract of six hundred and forty, acres of land, in Sumner county, on the waters of Second creek; and that his part of said locative interest was worth at least three hundred dollars, at the time of Turney’s death. In a second deposition he fixes the price at four hundred and fifty dollars, and further says, “I furnished a location to Peter Turney, in his life time, for six hundred and forty acres of land, on which Th. Stubblefield afterwards settled, for which said Turney promised me one half the locative interest, being two hundred and thirteen and one third acres; but said Tur-ney afterwards sold said locative interest, and never accounted to me for any part thereof.” In the first deposition of Jennings, we have this interrogatory and answer:
    * Question by defendant: “To whom did you dispose of said claim on said Turney, and what price did you sell it for?”
    Answer. “I sold the said claim to the defendant, S. Williams, and he gave me for it a bond for three hundred and twenty acres of land, which I had given to one John Boyd. The land which I had bound myself to convey to Boyd lay on the waters of Round Lick creek. We estimated this land at one dollar per acre. This bond was given to Boyd in the year 1797, and taken up for me by said Williams several years afterwards, about 1804. This is the consideration which said Williams paid me for the said claim on Peter Turney.”
    Does the defendant claim this credit as a disbursement made for the estate? or does he ask to retain it as due to himself, under the purchase mentioned by Jennings? In either event, why was it not presented for allowance in the settlements of 1808, or of 1814? If omitted by mistake, why was not the matter set forth in his answer? Has it escaped his recollection until the time he filed his discharge before the clerk and master? If the claim ever had any foundation, it was a stale demand even at the date of Turney’s death. The land located is described as lying “in Sumner county, on Second creek;” and the same witness also says, “it wás valuable land, lying on a public road, with good water.” Land of this description, lying on the great thoroughfare, between Nashville and Knoxville, would- not have been vacant, except by accident, as late as 1790, and the location may be safely dated as early as that day. The defendant, then, should be held to strict proof on this item. Every presumption is to be made against such a stale demand. Whether the credit be claimed as for a debt paid for testator, by the executor; or as a debt due to the executor, by virtue of his purchase from Jennings, the complainants ask for the evidence of a contract, obligatory upon their ancestor, and remaining unpaid at his death. Was the promise, of which Jennings speaks, made in writing? If it was, it should be produced; perhaps it contains a defeasance, or a receipt may be endorsed on it. Proof that Turney claimed and sold the locative interest in the land described, is only presumptive evidence of the fact that he was the locator. It furnishes no evidence of the fact that Jennings gave him the information which enabled him to make the location; nor of his promise of payment to Jennings therefor; nor of the fact that that promise remained a subsisting debt against him at his death. If Jennings was-asking payment of the pretended debt, could he be heard to prove its existence by his own oath? If he could not, can he now be heard thus to prove it, after he has swapped this claim with Williams for the bond held by Boyd? When this transaction took place between Jennings and Williams, what evidence did the latter have of the validity of this claim? It should have been authenticated in some form; and this, at least, should have been preserved and produced by the defendant. It was the duty of the defendant to keep an accurate account of his receipts and disbursements, and to exhibit the same on oath. This he has not done; and he should not ask a chancellor to allow him credit for an item which he has not supported by his oath. *
    The defendant filed several exceptions to the report 0f the clerk and master. The following were overruled by the Chancellor, and the defendant will insist upon them here.
    1st. Bond to Solomon Blair for one hundred and forty-four acres of land warrant. “I do hereby bind myself to transfer one half of a certificate for two hundred and eighty-eight acres of land in the name of Joseph Woodfork, that is to say, all the right and interest Peter Turney had in his lifetime, to Solomon Blair, his heirs and assigns, this 14th of June, 1805.
    “S. Williams.”
    This is the bond of the defendant. That his testator was indebted to Blair is not shown by any proof in the record. Let it however be supposed that his testator was bound to release his interest in this warrant to Blair. Why he gave this obligation does not appear. But having done so and taken it up, the possession of the paper only leads to the conclusion that he transferred the warrant pursuant to the terms of his undertaking. He has not been charged with the warrant and no reason has been given why he should receive a credit in this account. This item was allowed as a credit in the settlement of 1814.
    2d. Bond to D. Mitchell for conveyance of land, two hundred and ten dollars. This bond is dated November, 1803, for the sum of four hundred and twenty dollars, with a condition thereunder written for the conveyance of a'tract of land lying in Smith county, within two years from the date, subject to a proviso, “that in case there should be an older title than Turney’s, then, and in that case, said Mitchell agrees to take back two hundred and ten dollars, that being the sum he paid for the land.”
    At May term, 1818, of Smith county court this bond was proven and ordered to be recorded. This item is not mentioned in the defendant’s answer, and was first claimed as a credit, in the last amendment made to the discharge filed before the clerk and master. There is no proof in the record that defendant has ever paid one cent on the bond. He rests bis claim for its allowance upon the fact of his possession of the bond. The act of 1794, ch; 5, authorizes executors and administrators to execute deeds for land, when the bonds for title, of their testators and intestates, shall have been proven, recorded, &c. In the absence of proof (either direct or circumstantial) of the defendant’s having paid any money on the bond, the possession thereof by the executor, can only be considered as evidence prima facie of his having executed a deed to the obligee in the bond for the land described in the condition, pursuant to the provisions of the statute.
    
      3d. Costs in suit between executor and Young and Arnold for one .hundred and thirty-one dollars. It appears from the record, that after Young and Arnold had obtained a judgment at law, the executor filed a bill in equity and obtained an injunction. It further appears, that the injunction was dissolved for three hundred dollars, with interest thereon and cost at law, and that upon the final hearing, Young and Arnold were taxed with a part of the cost and the executor with the balance of the cost.
    There is no proof of a decree in favor of Young and Arnold for any other amount than the above. The defendant filed sundry memorandums or receipts, which included costs in several suits, and also divers individual transactions between the defendant and the late clerk of the supreme court. These were informal, indefinite, and did not specify the amount of cost in each suit with certainty, and under these receipts the defendant claimed credit for a larger amount than has been allowed.by the clerk and master. The defendant was credited with one of the receipts, in which the cost was estimated at one hundred and forty-four dollars, and with the principal and interest and cost at law, four hundred and thirty-two dollars, taxed upon the dissolution of the injunction.
    At July term, 1833, (and after the report of the clerk had been filed) the defendant presented an affidavit for a continuance of the cause. With this affidavit he exhibited the copy of an unsatisfied execution which had issued from the supreme court in the suit of Young and Arnold, on which execution the cost decreed against the executor on the final hearing was taxed at one hundred and thirty-one dollars. As cause for continuance he alleged the materiality of the testimony of the late clerk of the supreme court to explain the receipts and the taxation of cost on the copy of the execution. The continuance was granted. The deposition of the late clerk was taken before the clerk and master, but he was not examined either as to the receipts or the execution. The clerk and master disallowed the credit claimed for the cost taxed on the execution; and no exception was filed by the defendant. At January term, 1834, the cause was heard on the exceptions of the parties, and all items were settled by the court except those touching commissions, the credits claimed under the alleged purchases from the widow and James Turney, and the Jennings item, which were left open before the clerk and master for further proof. At July term, 1834, the clerk and master filed his report on the items reserved, and in his report he re-stated his account, setting out all the items of debit and credit as they stood in his former report, with the corrections rendered necessary by the de-cretal order settling the exceptions at the former term. It was to this last report of the clerk and master' that de-fe'ndant filed his exception to the disallowance of this item. There was ample time to have examined the records of the supreme court, and to have re-examined the late clerk on this item. The reasonable conclusion must be, that those records would not have aided him, or a transcript would have been produced, that the testimony of the late clerk would not help him or he would have re-examined him. He cannot complain of being taken by surprise on this item. It can however be readily shown that he has been credited with more than complainants are chargeable with, thus: Cost at law paid on dissolution of injunction, seventeen dollars. Cost as per clerk’s memorandum allowed, one hundred and forty-four dollars. Amount of cost credited to defendant, one hundred and sixty-one dollars. Deduct amount of cost chargeable as per execution, which shows the whole amount decreed, one hundred and thirty-one dollars. Overcharge against complainants, thirty-one dollars.
    The remaining questions presented in the record arise on rhe interest account. Defendant contends that compound interest has been charged, and he insists that under the circumstances attending this .case he ought not to be charged with any interest, especially during the time the cause stood continued by consent. Complainants' say compound interest has not been charged. The de-cretal order forbid the “charging of interest upon interest,” and directed the clerk and master to strike a balance in his account at the date of 9th June, 1808, then to calculate interest on balances from time to time according to the dates of receipts and disbursements, so that the disbursements shall at each calculation discharge the interest on the last balance, and any remainder of disbursement to be applied as a credit on the principal. The calculations of interest have been made pursuant to the directions given in the order.
    The objections raised by the defendant to the payment of any interest, are: first, that complainants were infants and had no guardian, and so he could not make payment of any balance remaining in his hands. This objection comes with bad grace from the defendant, and, withal it is untenable. To give it any claim to plausibility, a time should have been shown, at which the defendant admitted a balance in his hands due to complainants. But when and where has he ever admitted that he owed complainants any balance? In the settlement of 1808 he claimed, and the commissioners allowed him a balance. In the settlement of 1814 he again claimed, and the commissioners allowed him an increased balance. In his answer he exhibits these settlements, alleges the payment of large sums of money for the estate since these settlements, for which he claims a further credit; and in his discharge, filed before the clerk and master, he claims credits for additional sums. From a tabular statement prepared from these settlements, the statements in the answer and the discharge, it appears that he claimed a balance to be due him of about three thousand dollars, exclusive of interest. The tabular statement lies before the court, and its accuracy may readily be tested if questioned. The balances reported in favor of defendant by the commissioners on these settlements, appeared of record in the county court, and this may serve as an excuse to the justices for not appointing a guardian. But if, instead of these false balances against complainants, the defendant had kept his accounts fairly and correctly, and had, in his settlements, shown the true balances due to complainants; and if, upon this exhibition, the justices had neglected or refused to appoint a guardian, the defendant might have applied to a Chancellor, who would have listened to his complaint and appointed a hand to receive any balance due to complainants, the use of which had become burdensome to him.
    The second objection is, that such was the situation of the estate, that he was continually “under a press of multiplying debts and lawsuits;” therefore, he had to keep the money on hand to meet demands upon him. This objection is not more plausible than the first. If he had fully administered; if he claimed a large balance against the estate; how can it now be alleged that he was holding the funds of the estate in his hands to meet the demands of the other creditors? Instead of answering these questions, let them be waived. Let us refer to the stated account of the clerk and master, ascertain the balance in the defendant’s hands at some early day, and then enquire how this balance has been increased or diminished by receipts and disbursements up to the close of the account.
    On 1st January, 1809, the balance against the defendant was $3,109 62
    And his receipts since that date are charged at, - 553 00
    In this sum there is no interest included, - $3,662 62
    The disbursements credited are as follows:
    1810, April, Disbursements, - $58S 73
    1814, January, do - 316 75
    February, do 437 14
    1815, January, do - 219 86
    1819, February, do - 693 97
    1832, January, do - .278 69
    1834, January, do 433 91
    July, Commissions of defendant, - 291 59
    On the 1st January, 1809, the debts remaining against the estate, and since paid by the defendant, consist of the Ballow claim, - 500 00
    Whitesides’ receipt, - 100 00
    Arnold and Young’s claim, - - 415 04
    Greer’s claim, $475 and $132 95, - 607 95
    All other credits allowed since January, 1S09, are for cost, attorney’s fees, expenses of executor, and his per diem allowance, commissions and fees paid sundry officers.
    The court is now familiar with the history of the Bal-low claim. Nor can the court be unacquainted with the Greer claim. This last case stands reported in the early decisions of this county, and it furnishes conclusive evidence of the negligence of the defendant. The case was not, however, finally disposed of until 1834; and it appears, (from the tabular statement prepared for the court and solicitors) that on this item, complainants have been charged with upwards of eleven hundred dollars, when only a small amount, if any, should or would have been payable, if the case had been attended to in its early stages. Complainants, therefore, say, that if, instead of claiming a balance against them, the defendant had admitted the true balance due them, he would still bq, 1 eft without excuse or justification for withholding it. The alleged “pressure of multiplying debts and lawsuits,” is not sustained by the proof in the record; unless the Greer suits should be relied upon for proof. Then, complainants admit, there is proof, at least of the facility with which a multiplicity of suits may be manufactured out of one cause of action; and of the ease with which these suits may be kept in existence, by the process of continuances. See 4 Haywood’s Rep. 235; (Williams, ex’r. vs. Greer, adm’r.)
    Cases are to be found in the reported decisions of our sister States, where, from the peculiar situation oí estates, executors have been excused for having failed to close their accounts, and have been discharged from payment of interest on balances in their hands. But, if the pendency of suits, the prospect of suits, and the unsettled state of accounts, brought about by the negligence and misconduct of executors, should excuse them from closing their administration, or from paying interest on balances in their hands, it might happen that executors and administrators would be less attentive to the trusts confided to them; prolong the time for settlements; invite litigation; neglect to plead the statutes in bar of stale demands; use the trust fund for their own benefit, or dissipate, it in useless litigation and expenses. Courts should not discharge executors from the payment of interest, unless they make out a very clear case of excuse or justification. Indeed, it may well be questioned whether the courts have this discretion, under our statutes. The time at which executors and administrators shall make settlements is limited by the statutes; and these forbid their holding the funds in their hands after the time so limited; and command them to pay the same over to those entitled,'taking refunding bonds. And these “refunding bonds are to be máde payable to the chairman of the county court; and shall be and enure to the sole benefit of creditors.” Haywood and Cobb, 105.
    The third objection of defendant, arises upon the con-linuance from December, 1822, to the filing of the answer, in 1832. Before this objection can have any weight, it must be shown, that at the time the continuance was agreed to, the parties stipulated that interest should not accrue during the time of such continuance. It is only necessary to see who was the solicitor for the complainants. The knowledge of that fact alone, forbids the supposition that such terms would have been proposed by the defendant. 1
    Such terms are not proposed in suits at law, where defendants admit balances to be due to plaintiffs. Such terms are not imposed on plaintiffs, where the defendants are demanding trials, and plaintiffs are praying for continuances on affidavits. If, then, such terms are not proposed in these latter cases, we should not presume them to have been agreed to in this case. This continuance was on defendant’s motion, for time to answer. It cannot, surely, be necessary to cite authorities in this court to show, that, if executors are negligent in paying over balances; if they mingle trust money with their own; if they use it as their own; if they do not invest it so as to render it productive; or if legatees are compelled to sue in each and all of these courts, and all of these events, interest and cost shall be decreed against executors.
    Complainants ask that compound interest shall be charged against the defendant. They ask it, because the defendant has been grossly negligent in the management of the estate; because he has exhibited erroneous accounts, both of his receipts and disbursements, and has clung to them with pertinacity, even after their falsity must have been apparent; because of his breach of trust, and using the funds of the estate to his own profit, claiming them as his own. Many cases might be cited in support of the claim for compound interest. This has been rendered unnecessary by the able decision of the chancellor, in the case of Schieffelin vs. Stuart and others, reported in 1 Johnson, Chan. Rep. 620, where all the cases on this subject are reviewed, and upon which decision the complainants mainly rely. They will, however, cite the case of the Earl of Hardwick vs. Vernon, 14 Ves. 604. In this case, interest and costs were decreed against the representatives of a deceased steward, for concealment, and fraud in his accounts. Also, the case of Pirty vs. Stacy, 4 Ves. 620. In this case, interest at 5 per cent, and cost were decreed against an executor, for keeping 'the trust fund, and using it for his own benefit. The executor had been speculating in stocks. The Master of the Rolls says, “if an executor will take upon himself to act with regard to the testator’s property, in any other manner than his trust requires, he puts himself in this situation; that he cannot possibly be a gainer by it; any gain must be for the benefit of his cestui que trust; and if there is any loss upon the capital, he must replace it, in order that the cesiwi que trust may sustain no damage from his conduct. Every farthing more than the dividends that lay in his hands, is just so much gain to himself. For every shilling he got by these transactions, he shall pay interest at the rate of 5 per cent, for every minute it lay in his hands.” The defendant, Williams, was not a dealer in stocks, but he was a dealer in lands, and in land warrants, a business, in this country, far more profitable than any stocks. His profits, on the funds of the estate in his hands could not be reached, by directing quarterly rests for the interest to compound. •prevails in courts of law, in computing interest on notes and judgments, where partial payments have been made'. , Indeed, it is the rule which prevails in all business transactions between individuals.
    
      The case of Schieffelin vs. Stewart, will now be noticed, and the present case compared with it.
    Schieffelin vs. Stewart and others,
    1. The bill was filed by the executor, for an account.
    2. Commissions were disallowed.
    3. The master allowed only two years to close estate.
    4. The executor admitted a balance due the legatees.
    5. The executor’s accounts were free from errors, and the bill was filed to settle doubtful items.
    6. The. executor used the trust money, and submitted the question of interest to the court.
    7. Annual rests and compound interest was allowed by the Master.
    S. The chancellor affirmed the Master’s report.
    Turney and others vs. Williams.
    1. The bill is filed against the executor for an account.
    2. Commissions and per diem pay are allowed the executor.
    3. The Master has allowed’four years before interest is charged.
    4. The executor claims a balance against the legatees.
    5. The executor has exhibited erroneous accounts: withholding sums which he certainly received, and claiming credits for sums he never paid.
    6. The executor used the trust money, claiming it as his own, and resists all claims for interest against him.
    7. Simple interest is allowed in the court below.
    The previous decisions upon the question of interest, chargeable against executors, having been cited and reviewed, in the case of Schieffelin, it is not deemed necessary to detain the court, farther than to read this case. It entirely supercedes the. necessity of any argument here, on those authorities. Complainants rest their claim for compound interest upon this decision.
    It has been insisted for the defendant, that the balance reported against him is nearly all' made up of inler-estythat the difference in amounts between the receipts and disbursements is small, whilst a large balance has been given against him.
    It is true, the difference between the receipts and disbursements is small, not exceeding* seven hundred dollars;-and that the balance reported against the defendant amounts to five thousand dollars. This, however, results from the rule of calculation directed by the court, and the great length of time which the moneys of the estate have remained in the defendant’s hands. The rule of calculation directed by the court, is the same which
    
      The balance of principal reported is $3,119 12
    The balance of interest (after extinguishing such parts of the disbursements as were not credited upon the principal presented, is $2,172 47
    $5,291 59
    From which commissions deducted, 291 19
    Leaves balance against defendant of $5,000 40
    The shares of complainants’ five-sevenths of this balance have been long, and most wrongfully, withheld from them, by the defendant: and they ask that it shall be increased by charging compound interest against defendant.
    
      J. Rucks and W. E. JLndersm, appeared on the same side.
    
      Judge Isaacs and Jl. J. Marchbanks, for defendant,
    Williams, argued the cause very fully and elaborately, no notes, however, of their argument, were taken at the .time, and the brief made out has never came into the hands of the Reporter.
   Green, J.

delivered the opinion of the court.

This bill is brought by the complainants against the defendant for an account of his trust as executor. The bill was filed in 1819, and in 1822, no answer yet having been filed, the cause was continued by consent of the parties to await the decision of a suit then pending against the defendant as executor of Peter Turney, deceased. In 1832, on motion of the complainants, the defendant was required to file his answer, the said suit to await the de-cisión of which it was continued, not yet having terminated. The cause was then, in the course of the court, brohght to a hearing, and finally determined at the last term of the chancery court at Carthage, from which decision this appeal is prosecuted.

The bill sets forth the property that came into the hands of the complainant, and prays for an account generally. To this bill the defendant answered, setting forth the manner in which he had administered the estate, the credits to which he is entitled for disbursements, and relies on two settlements made by him with commissioners appointed by the county court of Smith, the one in 1808, and the other in 1814, by which it appears that the estate was, in 1808, in arrears to him the sum of three hundred and eighty-three dollars forty-three cents, and in 1814, the sum of three hundred and ninety-one dollars ninety-six cents, and insists that these settlements ought to protect him to the extent of the matters included in them. Peter Turney died in 1804, having made his will, in which the defendant and William Martin were appointed executors. Martin renounced, and the defendant alone qualified. By the will several tracts of land are devised to be sold for the payment of debts, and the balance of the property was devised to Frances, the relict of the testator, during her life or widowhood, for the purpose of raising and educating the children; and on her death or marriage, it was to be divided among the complainants, either by sale or division, as might seem best to the executor. Frances, the widow, married Thomas Pharis in 1807, and shortly thereafter the defendant took into his possession and sold the negroes and the whole of the personal estate then undisposed of. No inventory of the estate was ever returned to the county court by the executor. The settlement with commissioners in 1814, exhibits disbursements by the defendant of an excess of three hundred and ninety-one dollars ninety-six cents over and above all the- estate which? had come into his hands.

1. The first question tobe considered is, whether these settlements are a bar to the claim of the -complainants for a general a¿count. This court decided, in the case of Stephenson vs. Stephenson and Yandal, (3 Haywood, 124,) that these ex parte settlements with comr missioners appointed by the county court were not even prima facie evidence against a distributee or legatee. This was probably going too far, and this decision, doubtless, produced the act of 1822, ch. 31, sec. 2, by which it is declared, that settlements made by executors and ad-, ministrators with a committee of the county court shall, when made, be received as prima facie evidence for such executor or administrator. Perhaps this will be-the safe doctrine to adopt even in relation to settlements which were made before the passage of the before mentioned act. An executor or administrator who acts legally, and returns an inventory of all the estate which may have come into his hands, thereby furnishing the legatees or distributees with full and ample testimony of record, of the amount of their ancestors estate, and who honestly, vigilantly and faithfully administers the effects which may have come into his hands, ought to be protected by his settlement with the county court, so far, as to throw the burthen of proof upon those who question the correctness of his conduct. But the counsel for the defendant insists that such settlement is to have the force and effect of a settled account, and can only be opened by a bill brought to surcharge and falsify! To support this position the decision of this court in the case of Burton vs. Dickerson, (3 Yerge'r’s Reports, 112,) is quoted and relied upon. It will be seen, by looking into that case, that it has no resemblance, scarcely, to the present. From the report of the case, it appears that “when the settlement took place, the complainant, Burton, was then in North Carolina, (where he then lived.) But a few months before„the division he was in Tennessee and the administrator requested him to stay until the settlement took place. This he de-dined. But he appointed Matthias B. Murfree, a brother of his wife, and also a distributee, his agent, to receive whatever share might be allotted him. After allotting the negroes and .dividing the land, according to the above principle, there was one hundred and thirty-six dollars forty cents due in money, which Matthias B. Murfree received, as agent for the complainant, and gave a receipt therefor, dated 24th August, 1814. The negroes allotted to complainant were also delivered to him as agent.” By the above extract from the case it will be seen that this was in effect a settlement between Burton, the complainant, and the administrator. The estate had been managed with scrupulous integrity, and settled with punctilious honesty and fairness. Dickerson, the administrator, “requested Burton to stay until the settlement took place.” This he declined doing, but appointed his brother-in-law, who was also a distributee, his agent. This agent, who was equally interested with the complainant, superintended the settlement .while in progress, and received the negroes and money to which, by the settlement, Burton was entitled. The commissioners were, in that case, merely agents of both parties. These settlements, where the distributees are of age, and attend before the commissioners, having it in their power to dispute items, and require full proof, and thus probe the accounts of an administrator, ought, in reason, to have the same force and conclusive character that belongs to a stated account. It will be seen, by reference to the opinion of the court, that this was the view in which the remarks are made, which have been pressed by the counsel for the defendant as of conclusive authority in this case. The court says: “There is no fraud; it is even doubtful if there-were any mistakes; and were the court to open this account, it would set a precedent like-to disturb the repose of the country, and to endanger J ,, . . r , greatly the situation of the most iaithrul administrators. This was unquestionably a settled account within the authorities. The receipt of complainant, by his agent, Matthias B. Murfree, recognized it as such, and this bill came greatly too late to call it in question.” Here the court plainly give the reason why it is a settled account “within the authorities;” because “the receipt of the complainant, by his.agent, recognized it as such!” The very reason given, and wh^ch more fully appears by the statement of the case, why that was to be regarded as a stated account, would evince that a case like this could not be so regarded. In this case, none of the plaintiffs were present when either of these settlements were made, and they were all, or nearly all, infants, when even the last settlement was made.

The case of Burton vs. Dickerson, therefore, is not in the way of the account prayed for in this bill, and it has been thus particularly referred to that the misapplication of it to this case may be plainly seen. The doctrine of that case is in accordance with .the opinion of Chancellor Kent in the case of Evertson vs. Tappan, (5 John. Ch. Rep. 511,) where he held, that an account taken'under an ex parte order could not be binding upon infant plaintiffs; “but as the father of the infants attended before the master, as their guardian, during the whole progress of the taking the account, it does not seem to me necessary to open it further than to correct such errors as have now been pointed out on the part of the plaintiffs.”

From what has been said, it results, that where the parties interested attend the commissioners during the settlement of the accounts, having an opportunity of objecting to any improper allowance, and, by the act of 1822, have the right of contesting the report, and of appealing to the circuit court; if, under these circumstances, they agree to the settlement, it is made in effect their own, and should have all the force and effect of a stated account. But where the parties are infants, as in this ... .. . . , case, and without guardians; where no one attends before the commissioners, and the order and settlement, as in the present instance, is wholly ex parte, it is going far enough to say that they shall only be prima facie evidence against the distributees, and liable to be opened and reviewed by a bill asking for an account generally. To say that distributees under such circumstances, must surcharge and falsify by their bill, and that the account can only be opened so far as errors are pointed out and shown by the bill, would be most absurd. They have had no knowledge of the accounts; they do not know by what evidence the items were supported; they are often unable to obtain other evidence than that which they may extort from the executor on his oath. And shall they be deprived of the benefit of that, because they cannot point out the items improperly allowed him, and shall this severe rule be permitted against a parcel of infants without guardians, and in favor of an executor whose accounts abound with gross errors, and who returned no inventory of his testator’s estate? Surely not.

2d. The next inquiry, is, upon what principles the account ought to have been taken, and whether this executor ought to have been charged with interest. Formerly, executors were not charged with interest, but ever since the time of Lord Thurlow, they have been held liable to pay interest, according as the circumstances of each case may justify. Interest is not chargeable against them as a matter of course. When the exigencies of an estate require an executor to keep money by him; where he has not unreasonably delayed a settlement of his accounts; where he has made, promptly, a just and true exhibition of the receipts and disbursements, he is not to be charged with interest on any accidental amount he may have had in his hands, and upon which he received no interest. 3 Dess. Eq. Rep. 241: 13 Mass. Rep. 233: Jer. Eq. Juris, 144-5-6. But on the other hand, if an executor makes interest, he is chargeable with ity and as the fact, whether he has actually received a profit from the estate or not, can scarcely ever be directly proved, courts of chancery have adopted certain rules, by which, from the existence of given facts, it is presumed that a profit was received by the executor. The authorities above quoted, and which are relied on by the counsel for the defendant, show, that where an executor uses the money of the estate for himself; where he keeps the money by him without a reasonable ground for doing so; where by long delay in settling his accounts, the use of the money by him may be inferred, in all such cases interest will be charged. This rule is not adopted with a view to punish an executor or trustee, but with a view to reach the profits, which, from these facts it is to-be presumed he may have made. 1 John. Ch. Reports, 510, 620: 1 Vesey, 247: 4 Vesey, 620: 7 Vesey, 124: 3 Dess. 244. In the case of Schieffelin vs. Stewart and others, (1 John. Ch. Rep. 620,) Chancellor Kent reviews the English cases upon this subject, and lays down the rule that an executor or other trustee, is not allowed to make gain or profit from the use of the funds committed to him in trust, that if he negligently suffer the moneys to lie idle, he is chargeable with simple interest, but if he convert them to his own use, he is chargeable with compound interest. And this is the only possible way of reaching the profits which the executor or other trustee may have made. If the moneys are retained a length of time in his hands, when the exigencies of the trust did not require it, the inference is irresistible, that the fund has been so retained that it might be employed for the private benefit of the trustee; and, if upon that presumption, he could not be charged with interest, an executor could easily make an estate worth more to himself than to the legatees, especially if they were young when the estate might come into his hands. Such a consequence could not be tolerated by any principle of justice.

We come now to the facts of this case, to see how the principles above laid down are to be applied. By the settlements both of 1808 and 1814, made by the executor before commissioners appointed on his ex parte application, nominated, doubtless, by himself or his attorneys, he exhibited accounts and vouchers, and got them allowed him, by which it appeared that the estate was considerably in arrears to him. These settlements of themselves contain, on his part, a direct claim of right to all the moneys of the estate then in his hands. Now, as in truth, when the settlement of 1808 was made he had near a thousand dollars belonging to the estate, then undis-bursed; and at the settlement of 1814, near .two thousand in like condition; the settlements showing the estate to be indebted to him, furnish conclusive evidence that he was employing these sums for his own use. This fact alone, upon the best settled principles, is sufficient to authorize the court to charge him with interest. But almost every other ground laid down in the books why an executor should be charged with interest exists in this case. He kept the money by him without reasonable ground for doing so. It is said, there were many suits pending against the estate, and that its exigencies required the fund to be retained in the executor’s hands. This is a mistake. In the list of suits exhibited by the defendant’s counsel, eleven in number, there are only three that were undetermined after 1808, which required the application of any of these funds, and the demands then set up in these suits fell very far short of the amount of funds in his hands. The case of Wilson Cage is put down at seventy-three dollars, as having been paid in 1814. The case of Young and Arnold, three hundred and seventeen dollars; and in the case of Sarah Greer there was originally claimed only about three hundred and fifty dollars. The case of Esther Ballow, if the estate should have been liable for it at all, ought to have been settled by him immediately on his becoming executor, for he had agreed with the testator to fulfil the con-«it! riii ti act with her by a conveyance or the land.

From this view of the case, it is apparent that the ex-igenc.ies of the estate did not require that the executor should retain the monies in his hands. But there is no pretence for the assumption that the fund was retained to' answer the exigencies of the estate, when it is recollected that the executor, by his settlements with the county court, and by his answer in this case, claims the fund as his own, by denying that he was in arrears to the estate. This is inconsistent with the pretence that the fund was kept on hand, to answer the exigencies of the estate. But he now urges, as a reason why he ought not to pay interest, that the legatees were infants, and had no guardian, so that there was no one to whom he could legally or safely pay it. To this argument there are several sufficient answers. In the first place, the answer negatives the idea that he was holding the money unemployed in his hands, awaiting the appointment of a suitable person to receive it. In the next place, the executor had exhibited to the court, whose duty by law it was to appoint guardians for these orphans, accounts and vouchers, from which it appeared, by the reports of their commissioners, that the estate was wholly insolvent. We are bound to believe, that if the executor had procured such settlements, and statements of the receipts and disbursements of the estate, as would have been warranted by the truth, showing a large balance in his hands, that the county court of Smith would have done its duty, and appointed guardians. But why appoint guardians, when he had made it appear that such an appointment would have been an idle ceremony. When we receive these settlements, and compare them with the master’s report, and with the admissions at the bar, thé claim to exemption from the payment of interest, which is urged on the ground that there was no guardian, furnishes a striking evidence of the influence men’s interests have on their judgments in perverting them from a just conception of truth and justice.

But, in the last place, a sufficient answer is contained in the language of Chancellor Kent, in Dunscomb vs. Dunscomb, (1 John. Ch. Rep. 570) where he thus obviates the objection of a party making a similar claim to exemption from interest: “The executors say, it has always been kept in readiness to pay the persons entitled, when demanded. But this is no sufficient excuse. If they had met with any real doubt or difficulty as to the person authorized to receive, they could have applied to the court for advice, or brought the money into court.” So it is here. If this executor had desired to pay the money out of his hands, and discharge himself from paying interest, he could have brought the money into court, and he would thereby have assured the appointment of guardians to receive the money, and execute bonds as required by law.

It is further urged, as a reason why interest ought not to be charged, that, although there were very great mistakes in the settlement made with the county court, yet there was no design on the part of this executor to claim any thing unjustly; and that he has retained the money under a misapprehension of his rights, honestly supposing that it was his own.

The explanation given by counsel, as to the manner in which the gross error of $1,333 50 was introduced into the settlement of ISOS, is plausible, and may be true, as it is shown in proof, that the widow settled that $1,333 50 claim, by the payment to Haynes & Arnold of $700, it may be that when the settlement was made in 1808, he had no evidence of the payment, other than the remittitur he found of record. This supposition, however, is contrary to the evidence of the widow, who says she told the defendant of the arrangement she had made, and that he expressed himself well pleased. But, be that as it may, when he was making the settlement in 1814, and then produced the receipt the widow had taken for the payment of the $700, and asked to be allowed for that, surely he ought to have remem bered the $1,333 50, which had been allowed him in 1S08, for the same claim; and to have then corrected the mistake. But so far from doing so, he retains the allowance for both the sums, and insists, in his answer, upon all the allowances made him in these settlements. When we consider the amount of the sums claimed, sufficient to have attracted the defendant’s attention, and to have fixed them upon his memory; and when, in connection with this prominent error, the amount claimed in both these settlements, so greatly beyond the true amount due, is also considered, it must be confessed, that if the defendant thought himself entitled to it, his interest must greatly have perverted his sense of justice. The facts of this case have no analogy to the case in 12 Vesey, 385, which was relied on in support of this argument. There the executor was-in justice entitled to the sum retained; but he could not be allowed it, because he did not claim it in time.

It is further insisted, that the defendant ought not to pay interest from the time this cause was continued by consent in 1822, until the order was made in 1832, requiring the defendant to file his answer. It is said, that during that time he retained the money by the consent of these legatees.

At the time this continuance was agreed upon, the parties were litigating the matter of this bill, at arms’length. The complainants had alleged that the defendant was largely in arrears to the estate, and the defendant had constantly denied that Ije owed it any thing. It could' not, therefore, have been an agreement that he should retain the money; for before such an agreement could exist, it must have been admitted that there was money in his hands, upon which the agreement for him to retain it might be predicated. But as that fact never was admitted by the defendant, the ¡continuance did not amount to an agreement that he should retain the money, and be discharged from the payment of interest. It could, in fact, have no other effect than a continuance in any other case, where neither party is ready to try, would have. Yery different is the situation of a trustee, who admits that money is in his hands, and who retains it by the express consent of the cestui que trust. In such case it would be most unjust that he should pay interest for the time he might so retain it.

3d. As, from the view of the case which has been taken, it is believed there cannot be a doubt but that the defendant should be charged with interest, we. come next to consider in what mode it ought to be calculated. It is argued by the complainants’ counsel, that the defendant, under the circumstances of the case, ought to be charged with compound interest. It must be admitted, that were the rule laid down by Chancellor Kent (1 John. Rep. 620) tobe rigidly applied to this case, it would be difficult to distinguish this case, in principle, from those where compound interest has been allowed. It is true, the defendant did not speculate in stocks with the money of complainants, nor vest, it in merchandise; but it is equally true, that he used it as his own; concealed from them the knowledge that he had any in his hands, and claimed it as his own. It is also true, that he was an extensive dealer in lands and land warrants, and that no investiture of money has been more profitable than that in which he was employed from 1804, when he became executor, until 1808, in the acquisition of lands in Tennessee. Five thousand acre tracts, lying in the Indian boundary, were procured, about that period, for five hundred dollars, which are now worth forty or fifty thousand. If the defendant was a judicious dealer in lands, and land warrants, no rule, even of compound interest, which a court of chancery ever has adopted, would reach the probable-profits, which may have been realized by him, from the investiture, in that description of property, of the sums belonging to this estate, and retained in his hands. But no case in Tennessee has gone so far upon this subject as the complainants insist the court ought now to go. We will not, therefore, circumstanced as the court now is, go beyond the rule adopted by the chancellor; that is, allowing interest on the balances in the executor’s hands.

Great astonishment is expressed at the amount of interest, which the master’s report presents, in comparison with the balance of the principal on hand. This astonishment will cease, when it is recollected that the money has been in his hands along time, from twenty-five to thirty years; and that the sum in 1809 was a very considerable one which was in his hands; and that it has been but gradually diminished, by disbursements, up to this time.

4th. We next come to consider of the account; and here, after the most attentive consideration of the matters of exception on both sides, we find very little, in which our minds are inclined to differ from the chancellor. Indeed, this account seems to have been scrutinized with the utmost vigilance; to have been most carefully and patiently made up, and to have been adjusted with the ability, and enlightened sense of justice, which distinguish the chancellor who reviewed it. It has been before the chancellor four times; and the facts and circumstances calculated to throw light ori the subject of every exception seem to have been thoroughly investigated. There are some allowances for services which were not strictly legal, but which, in justice, an executor ought to have; and which are in accordance with an act of assembly passed since these services were performed. The account, therefore, will not be changed in that respect.

The only items which have given us any difficulty, are, the claim of $131 00 by the defendant for costs, paid in the Young and Arnold suit; and the allowance made to the defendant, of five hundred dollars, paid Mrs. Ballow. We are not entirely satisfied with either of these items. The defendant was certainly liable for these costs; and the only question is, has he been allowed for this sum in either of the other items allowed him on account of the Young and Arnold suit. The chancellor thought he had, and we strongly incline to the same opinion. We do not find any evidence in the re-, cord, that more than three hundred dollars was ever, decreed against the defendant in that suit, besides the $131, the costs in equity, and the $17 00, the costs at law. He has been allowed on account of this suit, in one item $432 00, and in another $144 00. This amounts to more than all those sums added together. The records of the court in which the suit was tried were accessible, and since this item was in contest, the deposition of the clerk has been taken. The proof could have been made plenary on this point; but the defendant has chosen to rely upon the receipt of the clerk, expressing that the $144 00 was for the decree- in the suit of Williams vs. Young and Arnold. The language is equivocal; and under the circumstances, this item is rendered too suspicious to be allowed, by the mere production of the execution for that amount of costs.

As to. the Ballow item, there is too , much uncertainty about the assumption, that the Taylor bond covered the one hundred acres sold by the testator to Mrs. Ballow, to hold the defendant responsible for the 'damages it is supposed he ought to have recovered from Taylor. We do not think, either, that there is a reasonable presumption that Turney paid the defendant for this one hundred acres of land in his lifetime. It is true, Colonel Martin proves that the parties had agreed about it, six years before Turney’s death; but if Turney had paid the defendant, it is likely he would have taken up his bond, and caused the defendant to have executed his own to Mrs. Ballow.

The greatest difficulty is as to the amount. The defendant ought to have settled this with Mrs. Ballow so soon as he became executor; and to have retained the amount Turney had agreed to give him. Its value, Col. Martin says, was three hundred dollars, when Turney and Williams agreed about it. Strictly, that sum and interest, from 1798 to 1806, is all he ought to have charged. However, as the chancellor allowed the whole $500 00, which was paid, we will not disturb it. Let the decree be in all things affirmed.

Decree affirmed.  