
    William Johnson & Martha his wife, v. William Person, adm'r. of Thomas Person, the elder, and Thomas Person, the younger.
    From Franklin.
    Where a replication is taken to an answer, the answer is not evidence unless responsive to the bill — therefore, where the Plaintiff charged one assignment, and the Defendant denied that, and set up another,, and no proofs were taken — held, that that the case was to be consi» dered without reference to either.
    4n administrator Defendant who denies the right of the Plaintiff, and neither renders an account, nor pays money into court, is charge» able with interest from the time the Plaintiff’s right accrued. Where an estate is charged with the education of children, and a near relative takes that charge upon himselfi upon an account between the children, he is to be taken as having intended a benefit to the estate, and not a personal bounty to the children.
    A reference to the Master to take an account need not be renewed at every term between the order and the report.
    Sf a party to a bill for an account resides out of the State, and has no known agent to attend to the suit, it is proper to serve notice of taking the account upon his Counsel in this Court.
    The Plaintiffs alleged, that William Person, the elder, died in the year 1778, leaving a widow and five children, of whom the Plaintiff Martha was the eldest.: that by his will, he gave the residue of his estate, after the payment of his debts, to his widow for life, but charged it with the maintenance and education of his four younger children, viz. the Defendants and two others, Mary and Beniamin, who were dead without issue — that the widow of William, the elder, proved his will, and died in 1818, and that Samuel Johnson, who was made a Defendant, bad taken out letters of administration, cum testamento annexo of the testator. That Thomas Person, the elder, the brother of William, the elder, owed the latter a lai ge debt, which never was settled until tlv death of Thomas t that upon his death, the Defendant William, the younger-fcatl taken ont letters of administration upon his estate: JSjat in the year 1304, (he Defendant William. the elder, by arbitration, settled with ins mother, the executrix of bis father, and there was found tobo due die hitter, from Thomas Person, the elder, the sum of 42 839 : that the ’¿«other co risenting that thin sana should be paid to her children then living, the award was made to them, viz. io all but Mary, who had died some time before ; that sise Defendant William, as the administrator of Thomas .Person, the eider, had never paid the amount due upon the award, hut had used the money thus due, and had possession of the award, or that it was lost — so that the Plaintiff» could not recover at law. The prayer was, that one-fourth of (he award, with interest, ¡wight be paid to the Plaintiff..
    The Deirodani William, in his answer, admitted the debt, the arbitration and tin* award $ but he insisted, that hi» mother was liable for the expense of educating tie' four youngest diiMwm, which she had never defrayed, it having been borne by hi» intestate Thomas, the eider. Thai, iu consideration of this ¡¡ability m the four younger children, the mother had relliiqui-ibed to tfae«> the whole, of Usui debt, which was not. more than a reasonable com-¡tenant Ion for the nurrure and education charged upon dm residue bequeathed io her — that to induce tin- mother io do this., he had paid her 150. The Defendant denied ibas, the Plaintiffs were entitled to any tr-rt of the .4 851), and averred ¡.hat he had paid the Defendant Thomas, the younger, and the husband of Mary, their share (hereof. It was in proof, that the intestate Thomas, the eluer. had paid all the expenses of educating the three sous of his brother, at did not appear how much hail bren expended upon the education of Mary, but it wait proved that she had married respectably.
    No proof of any payments by Use Defendant William« alleged fay him, was offered,
    
      it appeared from the record of the cause, that the older of reference had been made at a former term, and that, it was not renewed at the term immediately preceding that to which the report was returned. The Master, in his report, stated, that as the Defendant William, the younger, was a resident of another State, lie had served notices of the time and place of taking the account upon his Counsel in this Court.
    Exceptions were filed to this report by the Defendant William.
    
    1st. Because the Master had not allowed the Defendant the sum of £ 150 paid the mother.
    2d. Because he had not charged the fund wills the ex penses of nurturing and educating the four youngest children.
    3d. Because interest had been computed from a period before the bill was filed, via. from the year 1804.
    4th. Eeraus,e the order of reference was not renewed at the last term.
    5th. Because notice of the time and place of taking the account had not bren personally served upon him.
    
      Badger & W. II. Haywood, for the Plaintiffs.
    
      Seawell, for the administrator of Thomas Person.
    
   Ruffin, Judge,

after stating the case as above, proceeded as follows : Upon the will, any residue remaining at the death of the widow, is clearly divisible amongst the surviving children equally. Up to that event, the. profits belonged to the widow, and the whole was subject to the charge of educating the younger children. But the report is predicated on a false basis, the award and transfer of the debt by the mother. There is no evidence of such a transfer. The Plaintiffs allege one to all the children, then living. This is expressly denied by the Defendant William; and the Plaintiff lias taken no proof. That Defendant admits, or insists on a different assignment, namely, one to the four children, excluding Mar, cha, and says that be paid £150 for it. Of tills the P«-fendant fias offered no proof; am! being a new and dis» tiuct allegation, his answer to this point is not evidence. Tt is only evidence, when responsive So the bilk It is not like one charging and discharging himself in the same breath, and from the same fact, standing as one. admission, it is a denial of the Plaintiff’5»allegation, and then bringing forward a new fact., as a title in him* »elf. There being no proper proof of any assignment, Isii-ih are laid ont of the case 5 which must 1st; left to stand on (he will. By that, it is declared by the Court, that i'be PkiníiíT, in the case which has happened. Is «mí’¡¡led io one-third of the sum of £ Bit/. Cosmcyuenily, the first exception is overruled.. Then, as to the interest: it is to be observed, that the Defendant does not say, that he has not used the money ; and he does not bring it into Corrí, and render an account. On the contrary, ho de-fiscs the Plaintiffs right altogether. finder such circumstances, ho is chargeable with interest from the time the legacy became doe to the Plaintiffs s that is, fro® the ikath of their mother. To that extent, iho third exception is allowed ; and overruled for the bakncc.

The second exception goes to die charge of education-Th&t was certainly to be defrayed out of this fund. But when a near relative, ami the head of the family, takes die charge on his own-private purse. If must bo held to be for the benefit of the whole estafe, and not rcHlrictcd to be a personal bounty to particular children. It in most probable, that the understanding of the parties was, shat this very úsbt of denerui ferstm shUnld be paid in >ib»t way. If so, it was a most ««pardonable and mi-f.enccientions advantage taken of his estate, to claim it after Ills death. But it is too late fo consider that now» V has been settled, without any deductions for his dis-bursrmeui# for his nephews. Plow 0111 bis nephews asfe now, that the allowance, instead of being made to him, should be given over to them ? Rat if this were not so, ■j Is pkin that the ezpenvrc, con*.¡ímplate:! by the testator in 1778, would not have exceeded tlie income from ^18 estate. The tenant for life was therefore responsible, and the profits accruing in her time are adequate. xiicy are in the Defendant’s hands, and must remain there, for any thing which can be decreed in this suit. The Defendant says, she surrendered them. We must take that for granted, until her representative shall contest it. Admitting it to be so, those profits constituted a compensation for the education, that is, such an edacation as the children could have got in the country at that time. This exception is therefore overruled. And the Master will immediately compute the legacy according to these directions.

The account here has been taken, according to the course of the Court. The order of reference, need not be specially renewed at every term. The Defendant being a resident of another State, and having no agent mentioned of record, or known to (he Master or parties, it was regular to serve the notices to attend the Master, ok the Solicitor or Counsel in Court.

Per Curiam.

— Decree that the Plaintiffs are entitled to one-third of the amount of the award, and charge the Defendant, the administrator of Thomas Person, the elder, with interest thereon from the death of the mother in *9813, and an account is directed accordingly.  