
    Carter’s Executors v. Cutting and Wife.
    Decided, Nov. 19th, 1816.
    1. Co-Executors — Settlement of Accounts — Charging Estate of Deceased Executor. — when a Commissioner is stating Accounts between Executors and tUe estate of their Testator, if one of them, who had for collection the evidence of debts due the estate, which might have been collected by him, be dead, his representative cannot object to his estates being charged with those debts, unless the means be furnished of charging the surviving Executor therewith.
    2. Same — Same—Private Accounts with Testator — Co-Executor. — In such case, the private account of each Executor, with the Testator in his life time, and with his Co-executor, and all other accounts that are necessary to make a just settlement of the matters in controversy, ought to betaken, if requested; though not specifically putin issue in the cause.
    3. Advancements — Payment of Gaming Debt.  — if a father make payments in part of a gaming debt of his son, and never reclaim them in his life time, but provide by his will a fund for payment of the balance, they should not, after his death, be claimed of his son’s estate, but considered as payments, or advancements, to the latter; as payments, to the amount of any previous existing accounts of the son against the father; and beyond that amount, as advancements to the son.
    4. Executors — Settlement of Accounts — Credits—Payment of Illegal Debt. — An Executor ought not to be allowed a credit for paying a debt of his Testator, appearing, on the face of the written instrument intended to secure it, to have been for money won at unlawful gaming.
    5. Wills — Devise of Realty Charged with Payment of illegal Debt — Effect.—A father having undertaken, by written agreement as surety for the payment of a gaming debt of his son; and afterwards, by his will (reciting that he had so become surety,) having devised to his son certain real estate, charged with the payment of that debt, such charge is not a condition precedent, binding the son or his representatives to pay it; but he and they shall hold the estate discharged therof.
    6. Wilis — Direction That Just Debts Bei Paid — Effect.— A Testator’s directing alibis just debts to be paid, out of the sales of certain lands, does not authorize the payment of a gaming debt of his, out of the proceeds of such sales.
    7. Executors — Time from Which Interest Runs against. —Monies directed to be invested, by Executors, in government securities, should be accounted for, as if invested, after a reasonable time for that purpose: but the Executors ought not to be charged with interest during such reasonable time; nor with interest upon dividends of stock, if such dividends have not been actually received. See Hooper & Wife, &c. v. Royster & Wife, 1 Munf. 119.
    8. Same — Investment in Stock — In Whose Name.— Where an Executor is directed to invest money in stock, he ought to have the investment made in his own name as Executor; in order that, if necessary, the stock may be readily converted into money to pay the debts of his Testator.
    9. Same — Compensation—Allowance Besides Commissions. — Although, under peculiar circumstances, an allowance may be made to Executors, in addition to the commissions given to attornies, for collecting debts confided to them; such additional commissions ought not, in general, to be allowed, where the debtors reside in or near the neighborhood of the Executors, who, consequently, might collect the monies themselves.
    Fitzgerald Executor of Jones v. Jones, 1 Munf. 150; See Triplett’s Executors v. Jameson, 2 Munf. 242; Sheppard’s Executors v. Starke & Wife, 3 Munf. 29; Cavendish v. Fleming, ibid. 198; M’Call v. Peachy’s Administrator, ibid. 288; Hipkins v. Bernard, 4 Munf. 83.
    John Browne Cutting and Sally his wife, formerly Sally Carter, widow, and Sally, Mary, Fanny and Landon Carters, ^infant children of George Carter deceased, by said Cutting their next friend, brought suit in the Superior Court of Chancery for the Richmond District, in December, 1807, against Landon Carter surviving Executor of the said George Carter, and Fanny Lee and George Carter Executrix and Executor of Thomas. Lud well Lee deceased, who was an Executor of the first named George Carter deceased.
    The Bill stated, that George Carter, holding large real and personal estates in Stafford and Loudoun counties, made his last Will and Testament, whereof he appointed Landon Carter and Thomas Lud-well Lee Executors, and by his Will directed that his said Executors, as soon as convenient after his death, should sell and convey in fee all his lands in the county of Loudoun; and, out of the proceeds, pay all his just debts; and place the surplus, if any, in six per cent, stock of the United States; and pay the dividends accruing therefrom to his wife, (now Mrs. Cutting,) towards her support and the support and education of his children; and, as either and each of his children married or attained to full age, transfer to such child one fifth of the said stock: and the Testator farther, by his Will, lent his said wife the rest of his lands, slaves, stocks, crops and household furniture, then in Stafford, for support of herself, and support and education of his children, ’till his eldest daughter should attain to full age; and, then, one thousand acres of the Stafford land (particularly described,) with the house and kitchen servants, ten plantation slaves, and the household and kitchen furniture, to the use of his wife for life, remainder to be equally divided among his children; and directed the rest of the Stafford land to be divided among his children, by his Executors; concluding with giving the residuum of his estate to his children: 'that the Testator died March 20th, 1802, and both Executors qualified in the same year; that, instead of proceeding with convenient despatch, they causelessly delayed the sale of the Eoudoun lands ’till September, 1803, and April, 1804, when the Executors, or Eee with the concurrence of the other Executor, sold parts of the Eoudoun lands for one third cash, and two thirds distant credits: the remainder was still unsold: that the amount of sales was 10,3821. 8s. 9d; that there were about 40701. 2s. 7d. of debts; but what debts, or what the amount thereof, the plaintiffs knew only from report; that the surplus bad not been vested in six per cent. United States stock; and Cutting and Wife had received not more than $600: that the Executor Lee died early in 1807, leaving the defendant Fanny Lee and George Carter his Executrix and Executor; and, in the same year, Landon Carter, the surviving Executor of George Carter deceased, first directed, and then countermanded, payment of the interest of the said surplus to the plaintiff Cutting: that the Testator’s eldest daughter, the plaintiff Sally Carter, came of age August 8th, 1807, and so became entitled to possession of the said provision, made for her by her father’s Will; and the other children to their shares of the Stafford land: that the profits of the children’s estate in Stafford (which the plaintiff Cutting received) even if aided by the intended dividends of stock, would not have been more than sufficient for their support, &c. ; and that the Testator had other estate, which was still in the hands of the surviving Executor; particularly, a gold wafch and chain. The Bill prayed a discovery and account of the credits and other personalty of the Testator that came to the Executors; a discovery and account of the profits they received from the Testator’s lands; an account of their administration; (Cutting proffering an account of the profits of the children’s Stafford lands by him received;) that the surviving Executor be compelled to pay such interest on the surplus of the Loudoun sales, as such surplus would have yielded had it been vested in six per cent. United States stock according to the Will: and for general relief.
    A Bill of Revivor was filed in the name of J. B. Cutting Executor of Sally Carter (the daughter,) who died after the suit brought, and, by her Will, gave the whole estate to Mrs. Cutting.
    *The answer of Fanny Lee denied any personal knowledge of the subject, and called for full proof; admitted the Will, and the several Executorships; and insisted that the surviving Executor Landon Carter was the accountable person to the plaintiffs. Her Co-executor George Carter never answered.
    The answer of Landon Carter admitted the Will, the several Executorships, and the character in which the plaintiffs sued; and stated, that he resided at a distance from Loudoun county, in which his Co-executor Lee resided; that the Testator not having prescribed the terms on which, nor the time when, the lands there should be sold, he left that matter to Lee, who, from situation, was the best judge thereof, and who appointed the time and terms of sale, and therein acted judiciously; that some small parcels remain unsold, because incumbered, and therefore not saleable, except at a great sacrifice; but they had taken steps to settle titles; that, in the mean time, these unsold lands are yielding fair rents, which enure to the benefit of the plaintiffs; that the plaintiffs cannot justly claim the whole proceeds of the sales enhanced by the credit, and interest thereon from the times of sales, as if they had been made for cash: that the affairs of the estate devolved almost exclusively on his Co-executor Lee, ’till his death; the papers and vouchers pertaining thereto were among his papers, and were selected and retained by this defendant, who was then settling the accounts of the Executorship before Commissioners appointed by Lou-doun County Court, and is ready to account before Commissioners of the Court of Chancery : that no debts were due to his Testator, within his knowledge, other than Loudoun rents, which Lee received. He admits that the gold watch, but denies that the chain came to his possesison : the other personal property was left in Cutting’s hands; and he calls for an account of it, and of any disposition made of it by Cutting and wife. He farther stated that some of the money, due for lands sold, remained uncollected ; notwithstanding all due diligence; and, when collected, should be duly applied according to the trust: that the plaintiffs had received much more than was stated in the Bill; and Cutting and wife had very little to receive.
    General Replications were filed to both answers, and commissions to take depositions were awarded. At February 'Term, 1810, the Chancellor referred all the accounts between the parlies to a Commissioner. Two reports were successively made, and set aside, on various exceptions. The Chancellor then recommitted the Accounts, with the following instructions to the Commissioner:—
    1st. “That the Accounts of Executors, where they act separately, should, as in this case, be separately stated.”
    2d. “That the balance, without interest, be struck at the end of each year, after allowing five per cent, commissions, for risk, trouble and such expenses, as accrue in the course of their own business; but, when they are taken out of that course upon their Testator’s affairs, reasonable expenses should be allowed. Vide Miller v. Beverly, 4 H. and M. 415.”
    3d. “That the balance of each year, on either side, should be considered a principal debt, carrying interest from that time.”
    
    4th. ‘ ‘That they should not be charged with debts, due to their Testator in his life time, not received by them, unless lost by their negligence; but still they are liable for debts contracted by themselves, in manner aforesaid, (and so it was held in this Court in the case of Guerrant .v. Johnson, ) unless in the cases provided for in the Act of Assembly, Rev. Code, 1st Vol. ch. 92, sect. 41, p. 165. ”
    5th. ‘ ‘That they should be charged with all sums received, whether before or after qualification.”
    6th. ‘‘That money directed to be vested in government securities should be accounted for, as if vested, after a reasonable time for that purpose; paying common interest in the mean time.”
    7th. “That Executors, being debtors, should account for their debts without any deduction; in other words, they are not entitled to a commission on debts due by themselves.”
    8th. “That where they have occasion for the aid of counsel, the custofnary allowance to such counsel, whose services they cannot control without, should be allowed.”
    9th. “That, in a suit exclusively for the settlement of Executor’s accounts, and distribution of the Testator’s estate under *his Will, items of debit or credit with the Testator in his life time, by his Executors, should not be allowed, unless by consent of parties; because such matters, in such a suit, are not in issue between the parties.”
    10th. “That, in cases where a Testator, in his life time, received compensation, in confidence, for the payment of an obligation (though void in law,) to a third person, which is afterwards discharged by his Executors, they should be allowed a credit for the same, although they knew of the circumstances under which such obligation was created. And
    11th. “That notice, to a party, of the time of taking the Account, should never be left in doubt.”
    In obedience to these instructions, the Commissioner presented a third Report, which, at February Term, 1812, was recommitted, by consent of parties; and the Commissioner was ordered to state an account between Landon Carter and George Carter, for transactions in the life time of the latter; neither party waving objections to the relevancy of such account to the issue in this cause, &c.
    The Commissioner then made his fourth Report, stating, 1st, An Account between Landon Carter, as Executor of Robert W. Carter, with the estate of George Carter deceased; shewing a balance due to the latter of 1651. 3s. 1 l-2d. (This account was excepted to by Landon Carter, as not within the issue between the parties in this cause.)
    2d. An Account between Thomas Lud-well Lee, Executor, and the estate of his testator, George Carter, shewing a balance of principal, due from this Executor, of $16,997 20 1-2 cents, (being stated as if vested in United States six per cent, stock,) with $8733 98 cents, estimated amount of Interest and Dividends. The difference between the principal, not vested in stock, and the same vested in stock, is stated at $705,46 1-2 cents, and the difference between simple interest and dividends at $433,78 cents. To this account, Mrs. Lee,, the Executrix of Thomas Ludwell Lee, objected; alleging, “that, soon after the death of Col. Lee, the surviving Executor took such papers and evidences of debt out of the possession of this defendant as entirely deprived her of the power of doing any thing with effect; that the amount of those uncollected balances, at least *the greatest part of them, amounting to nearly the sum of twenty seven hundred dollars, is still charged to this defendant, although the surviving Executor or his attorney, hath collected a part thereof, and taken security from William Wright, and executed a deed for his purchase, which balance, this defendant believes, is nearly all that is now due and uncollected.”
    3d. An Account between T,. L. Lee, Executor as aforesaid, and Mrs. Cutting; shewing a balance due her from this exécutor of $1860,53.
    4th. An Account between T. L. Lee, Executor as aforesaid, and Miss Sally Carter, shewing a balance due her from this Executor, of $1697 21 cents.
    5th. An Account between Landon Carter, Executor, and the estate of his Testator, George Carter; shewing a balance due from him of principal, converted into United States six per cent, stock, amounting to $12,772 92 cents; and of estimated amount of interest and dividends, $5482 94 1-2 cents.
    6th. An Account between Landon Carter, Executor of George Carter, and Mrs. Cutting, shewing a balance due from her to this Executor, of $456 76 1-2 cents.
    7th. An Account between this Executor and Miss Sally Garter; shewing a balance, due from him to her, of $957 34 cents.
    8th. An Account of the estate in Stafford, called the Park estate, shewing a balance, due from Mrs. Cutting to Landon Carter, Executor of George Carter, of $673 43 cents. The Executor excepted to this Account because Mrs. Cutting was charged with only two thirds, instead Of the actual proceeds of the sales of two female slaves, which she had no right to dispose of, except during her life. These Accounts were all brought down to April 7th, 1813.
    To this Report, the plaintiffs filed many exceptions; the most important of which were against the allowance of credits to the Executors for payments made by them, respectively, in satisfaction of a gaming debt from George Carter to a certain John Cooper. The material circumstances in relation to this debt, according to the Exhibits and Depositions, were, that Cooper unfairly won at play, a large sum of money from George Carter; that a written agreement was entered into, by George Carter and his father, Robert W. Carter, with Cooper, dated *June 23d, 1792, reciting that “George Carter being indebted to John Cooper 18931. 18s. 0d., monies won at play,” therefore Robert W. Carter and George Garter agreed to mortgage Kippon Hall estate to John Cooper, for payment of 1001. per annum, ’till said debt should be discharged, without interest; and, if any of it should remain unpaid at the end of 20 years, then the said estate should be sold for payment of the balance; that Robert W. Carter, by his last Will, gave to his son, George Carter his Rippon Hall estate, and the Park Instate in Stafford, and (reciting that he had become surety for payment of Cooper’s debt,) charged the Park Estate with the payment thereof, in manner stipulated by the agreement with Cooper, deposited in the hands of Mace Clements, “which must be produced to the said George Carter, his Executors, &c., at every period of payment, that each payment may be endorsed on ■said agreement;” that the Will of George Carter directed payment of all his just debts, out of the sale of his Loudoun Lanas; that two payments, of 1001. each, were made by Robert W. Carter towards this debt; that several assignments were made on a copy of the agreement; that George Carter gave an obligation to Samuel Tyler, one of the assignees, dated July 14th, 1799, reciting that Tyler intended to purchase the claim, and promising, if he did so, to pay it to him, and that George Carter would pledge to Tyler the rents of his Stafford estate to secure the payment.
    The plaintiffs also excepted to the allowance of the half per cent, brokerage in the Stock Account; and of ten per cent, commissions, upon bonds not put in suit, and sales of lands where no title was contested. Their other exceptions need not be mentioned, as no opinion was given upon them by the Court of Appeals.
    It was proved by a witness, that the papers, evidences of debt, &c., belonging to the estate of George Carter were first put into Landon Carter’s hands after the death of Thomas Ludwell Lee; and that the surviving Executor also took possession of the lands remaining unsold.
    
      
       Executors — Settlement of Accounts. — See mono-graphic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Same — Same—Private Accounts with Testator.— On the authority of the principal case, in Trevelyan v. Lofit, 83 Va. 141, 144, 1 S. E. Rep. 901, it was held that it is proper for an- administrator, who has been the decedent’s agent, to settle his agency accounts at the settlement of his administration accounts.
    
    
      
       Advancements — What Constitutes. — In Bruce v. Slemp, 82 Va. 358, 4 S. E. Rep. 692, it is said: “Chiejt Justicie Rotein said in Bridges v. Hutchins, 11 Ired.; ‘gift to the husband during coverture is undoubtedly an advancement to the wife; and it is quite clear that the release or cancelling, the bonds of the child., with the intention thereby to prefer him in life, is as much an advancement as so much cash.’ Gilbert v. Wetherell, 2 Simons and Stuart, 254; Carter v. Cutting, 5 Munf. 223; Hatch v. Straight, 3 Conn. 31; Dutch’s Appeal, 57 Pa. St. 461; Bailor v. Taylor, 9 Dana, 84; Cleaver v. Kirk’s Heirs, 3 Metcalf’s Rep. 270; Chinn v. Murray, 4 Gratt. 348.”
      See further, monographic note on “Advancements” appended to Watkins v. Young, 31 Gratt. 84.
    
    
      
       Administration Accounts — Interest on Interest.— Although a decrqe gives interest on a sum which, according to the mode of stating the account, is itself interest, yet if it be manifest that a settlement upon proper principles would have made the balance larger, and that such balance would have been principal, the decree will not be reversed at the instance of the debtor. Handly v. Snodgrass, 9 Leigh 484, 490, citing principal case.
      See principal case also cited in Garrett v. Carr, 1 Rob. 212.
    
    
      
       Note. The Chancellor In his final decree disapproved of this third instruction, upon the principles laid down in the case of Lightfoot v. Price, 4 H. & M. 431. — Note in Original Edition.
    
   At February Term, 1814, the Chancellor, rejecting- the Accounts taken by the Commissioner, which were irrelevant to the issue in this case, and contrary to his ninth instruction, and disapproving of his third instruction, decreed that the defendant, Mrs. Lee, Executrix &c., de bonis iestatoris, if so much, *&c., if not, then de bonis propriis, pay to the plaintiffs, John B. Cutting and wife, 151860 S3, (balance due from her to them, as per Commissioners’s last Report) with interest from April 7th, 1813; that the same defendant, in like manner, pay into the Farmer’s Bank at Fredericksburg, to the credit of this suit, and subject to the future order of the Court, $16,997,20, (principal due the estate of George Carter, deceased, as per same Report (with interest from April 7th, 1813, to be computed on the principles stated in said Report; that the same defendant, in like manner, pay inlo the same bank, to the credit of this suit, and subject to future order, $1724,89, (balance due to Sally Carter’s estate, as per said Re-, port,) with interest from the same day; that the plaintiffs, Cutting and wife pay the defendant, Ijandon Carter, $456 76, (balance due from them to him, as per said Report) with interest from the same day; that the defendant, Landon Carter, pay into the same bank, to the credit of this suit, and subject to future order, $957 34, (balance due from him to Sally Carter’s estate, as per said Report,) with interest from the same day; and that the same defendant pay into the same bank, to the credit of this suit, subject to future order, $12,723,92 (balance due from him to George Carter’s estate, as per same Report) with interest from the same day. The Chancellor declined deciding as to the rights of Sally Carter, deceased; there being a suit pending, to contest the validity of her Will. Cutting and wife were required to give bonds for refunding, in case of debts coming against the Testator’s estate. As to the defendant, George Carter, against whom no decree was sought, the Bill was dismissed: and liberty was reserved to any party interested, at any time, to apply to the Court for disposition of the monies paid into the bank to the credit of the suit. Costs were awarded against the defendants, Landon Carter and Mrs. Lee.

From this Decree the defendants appealed.

The case was argued, on the 15th, 16th, 18th, 22d, ánd 23d days of March, 1816, by Leigh and Wirt for Mrs. I^ee; Wickham for Landon Carter; and Call, Williams, and John B. Cutting himself, for the Appel-lees.

*On the part of the Appellants, it was contended, that, under the peculiar circumstances of the case, the Executors should have been charged with principal and legal interest only, and not with the estimated amount of United States six oer cent, stock and dividends, as if the fund had been invested therein; and that, even supposing that principle to have been rightly assumed at all, it had, in its actual application by the decree, been stretched beyond the bounds of reason and equity.

The Executors were not guilty of any neglect io make a proper application of the surplus arising from the Loudoun sales. The Cash payments were absorbed in the payments of debts: it will not be pretended that the proceeds of them should have been vested in stock. The Credit payments fell due in 1804, 5, and 6; that is, a part within less than two, and the rest within about three years before the institution of this suit, and within a much less time before the death of the Executor, Lee. The suit was brought in December 1807. Xvet it be considered that the plaintiffs called on the Chancellor to take upon himself the execution of the trust; that the Trustees might be at any moment called upon (as they well knew) to pay up the balances in their hands, in cash, to the Receivers of the Court, and it will be thence clear, that they did right not to invest, the money, not to proceed in the execution of their trust, but to hold the balances subject at any moment to the disposal of the Chancellor. It was not equitable, therefore, to require an investment of the money after the institution of the suit. neither ought they to be mulcted, as for a breach of trust, because they did not invest it before the suit brought. The money came into their hands, at different times, in the course of about three years; counting, from the dates when it fell due, to the commencement of the suit. In that space of time, they had, 1st, to collect it: 2dly, to liquidate and collect their Testator’s credits, and to pay his debts: (he had been improvident; all his affairs were in confusion; there was hardly any knowing when the debts were all paid off:) 3dly, to settle their accounts, and ascertain the balance in their hands, which alone they were bound to invest in stock; and 4thly, to make the investment upon the best terms, which required time. Were three years too long a time to be allowed for all these things?

*It is true that it now appears there were balances in their hands, that might have been invested within that time: but the Court must consider the situation they were in at the time, and judge their conduct accordingly: it must ask, could the trustees then have known, that debts to no greater amount, than now appears to have been due, would be brought against the estate? Could they have estimated, with any certainty, the amount of outstanding debts? If not, could they, without gross imprudence, so invest the fund, as to be unable to command it in cash, at any moment, without a sacrifice?

While the Court should take care, on the one hand, that Executors do not abuse their trust, it should guard, on the other, against making the executorial trust so burthen-some and dangerous, that to man will be willing to undertake it, for the benefit of the creditor, the widow and the orphan. It appears, then, that the impatience of the plaintiffs in bringing the Trustees before the Chancellor, and putting the trust into his management, in so short a time, as allowed not of the performance thereof by themselves, is an abundant excuse for their not performing it.

This excuse holds as to both Executors, but much more strongly in favor of Eee. He died early in 1807, eight or nine months before the suit was brought: he had so much less time, then, for the performance of his trust; and for some time before his death, he was in extremely bad health, un-ble to transact business. And if he had not time to make the investment, surely his Executrix should not be held answerable for not making it: for she was not George Carter’s Executor; the executorship survived to Eandon Carter, and she was not bound to execute the trust, but only answerable for her Testator’s breach of trust.

On the other side, it was said that the Testator intended the investment of the money in stock as a provision for his wife in lieu of dower, and for the maintenance of his children. It should therefore have been done as soon as possible. #The first sales were in April, 1803. Eee purchased at that sale upwards of 10001. : he was also a purchaser at the second sale. The two Executors purchased nearly one half of the whole ^amount of sales. A court will hold a Trustee bound to reasonable diligence. These gentlemen ought at least to have collected from themselves: they were chargeablé for the money they owed, on the days when the sums fell due. But they kept not only the money and interest, but the profits of the lands which they had purchased; leaving the widow and children almost in a state of starvation.

Trustees are liable for any injury resulting from a breach of trust, Even if they mistake their duties, they are liable, And if no good reason appears for their failing to apply profits to the use of the cestuy que trust, they may be compelled to pay interest thereon from the time of the receipt thereof, A Court will consider that as done, which ought to have been done, as between cestuy que trust and Trustee.

In this case, the Executors failed to give Mrs. Cutting the dividends, which would have been principal money to her: if, therefore, she gets only her principal and interest upon it, she gets nothing for her interest. The Executors did not want time to find out the situation of the estate. TL. Eee, from his previous acquaintance with it, residence, &c. knew all about it. In 1805, there was a large balance in his-hands, which ought to have been invested.

The institution of the suit ought not to stop the dividends; for the suit did not stop the claim of the plaintiffs. If the Executors had made the investment, they would have had the stock in hand, ready to be paid when after debts should have appeared. The defendants are properly charged with the stock at the price of the day, when it should have been purchased? for that is the actual damage sustained by the plaintiffs,

The Counsel for the Appellees also objected to the Decree, on the ground that the payments to Cooper’s gaming debt ought not to have been credited to the Executors.

The Contract itself was void, and the provision concerning it in the Will of Robert W. Carter was also void by virtue of the Act against gaming, which is to be extensively expounded for suppression of that odious vice, Indeed, without any extension, the words of the Act are sufficient for our purpose ; for Wills are “Convey-anees;” being treated as such *by text writers ; and that idea is recognized by the Courts, They are also “Securities;” for they are Common Assurances, and in England pass as a muniment of title._

The devise in this case comes within the meaning1 of the Statute, because within the mischief intended to be prevented; for it is a provision for payment of a gaming debt, and therefore should no more prevail, than a gift to uses. Its being the act of a third person, who was no party to the gaming, does not make it valid; for it is equally affected by the vitious origin of the Contract; being contrary to the policy of the Statute, whicn treats gaming, as a public evil, and is meant to protect the loser and defeat the winner. The Contract indeed was reprobated by the common law as well as the Statute; for the gaming was excessive, fraudulent, and in a tavern; and therefore Grants and Devises founded on it are necessarily void,

The provision in Robert W. Carter’s Will was void by the testamentary law; because the Testator was mistaken ; for he supposed the obligation binding; and that mistake avoids the devise, It does not appear to have been for the sake of the honor of the family, but to discharge the debt, for payment of which the Testator considered himself bound as surety.

The case is not aided by the clause in George Carter’s Will directing the payment of “all his just debts;” for, in the eye of the law, this was not a debt at all; and it certainly was not a just debt. Such devises are not applied to claims founded in maleficio, but only to such as the law will enforce, The devise is not to Cooper, but to the debt; so that, to recover the legacy, the debt must be shewn; and then the Court will not sustain a suit for it.

The voluntary payment of this debt by the Executors was a breach of trust, and a devastavit: for it varied the situation of the parties, and put the winner in possession, when the law would not have helped him.

On the other side, it was said that, however the debt was originally contracted, it beca'me, by the agreement of June 23, 1792, the debt of Robert W. Carter, as well as of George Carter. The question then is, had not Robert W. Carter a i;right to pay this debt, if he chose to do so? And if he did pay it, or (which is the same thing) provide for its payment; can George Carter’s devisees object, because it was originally a gaming debt of George Carter’s own? Robert W. Carter, by his Will, charged the Park estate with the payment of this particular debt, and, subject to that charge, devised the estate to George Carter. Suppose he had j>aid the debt in his life time, and expressly declared In his Will that he deducted the amount from what he gave his son ; could the sons devisees now complain?

The general words of the Statute are relied on; that all securities for payment of gaming debts shall be utterly void: but it does not follow, that they may be avoided by any and every person, against any and every holder, under all possible circumstances. The cases of Buckner v. Smith, 1 Wash. 296, and Hoomes v. Smock, Ibid. 389, prove that there are circumstances, under which gaming debts will be binding on debtors, notwithstanding the strong words of the Statute. George Carter’s assurances of payment to the assignee, Tyler, were an express recognition of the trust, on which he took the Park estate; and enured to the benefit of the subsequent assignees. Those assurances were dated the 14th of July 1797; the assignment to Tyler was on the 27th of the same month. Very possibly, the debt was offered to Tyler, without any explanation as to its character, and only with an estimate of its value. There is no evidence to shew, that Tyler knew its character at the date, when he received George Carter’s assurances of payment: and if he did not, the case falls within the principle of Buckner v. Smith and Hoomes v. Smock.

But, suppose advantage may be taken of the unlawful character of the debt, to avoid the charge of it upon the Park estate; who may take such advantage? Not George Carter, the devisee, nor his devisees, but the heirs of Robert W. Carter only, by the words of the Statute, As to George Carter, he was a purchaser of the estate, subject to this charge and condition of paying Cooper’s debt, and must fulfill the same, or yield the estate, or a just proportion of its value, to the heirs of Robert W. Carter. All that his Executors did was to take in that debt, to relieve the Park estate, for the benefit of his widow and children, to whom it was devised; and whatsoever ^either of them paid towards the debt enured to that effect. The payments, therefore, were a fair credit to them, in account with the estate.

The office of an Executor is one of much trouble and danger; and his labours are generally rewarded with ingratitude. It is but to throw a little more rigor upon the office, to drive every prudent and honourable man from undertaking it, and to place it in the hands of harpies or Sheriffs.

The Courts do not adopt the rigor of dis-tributees. Thus, although it be the duty of Executors to settle Accounts, yet if the failure be an act of mere negligence without advantage to the Executor, he shall not be punished for the omission. So, an Executor cannot release a debt; but if he compound, bona fide, without benefit to himself, and with a view to benefit the estate, he shall not be prejudiced by it. Wherever he acts with that intention, bona fide, he shall not suffer by the act, though mistaken in his judgment; as in calling in debts standing out at interest, or in lending money on security which fails, So, if, with reference to the honor of the family, an Executor pay a debt, it shall be allowed, So, also, if an Executor pay money to one named Co-executor,, who never qualified, and died insolvent, or to a Clerk to pay over, who absconds, the uprightness of his views saves him from a charge, The result seems to be that, if an Executor pay a debt, believing it to be his duty so to do, with no reference to his own advantage, but with a single eye to that of the estate for which he acts, he ought not to be held personally responsible for it, although the debt may not have been strictly detnandable at law.

In reply it was said, that the Executors were not excuscable in this case, because the written agreement shewed, on its face, the debt to have been for money won at gaming. If Robert W. Carter had given a bond, it would have been void: if so, the provision in his Will was equally void. The charge on the Park estate was not a condition precedent, but subsequent: it was therefore void, and the estate passed, unincumbered, to the devisee.

The principles upon which Buckner v. Smith, and Hoomes v. Smock were decided, do not apply to this case. In both *those cases, the peison relieved was an innocent purchaser, who was induced to take the bond, by the conduct of the obligor, without knowing its unlawful consideration. But Tyler the assignee in this case must have known, before he took the assignment, the true nature of the debt he purchased.

Tuesday, Eov. 19th, 1816. The following was entered as the Opinion and Decree of the Court.

In passing an opinion upon this long and complicated case, in which the Decree of the Court of Chancery seems predicated upon the fourth Report made in the cause, the Court will confine itself to that Report; to the exceptions of the parties thereto; and to points made by the Counsel respectively; considering that any inferior and subordinate points, not brought before the Court in one or other of these modes, have been acquiesced in by the parties.

With respect to the exception of Mrs. Eee, the Executrix of Thomas Eudwell Eee, an Executor of George Carter, against the payment of nearly two thousand seven hundred dollars, which, she alleges, were improperly charged to her, on the ground that the evidences of the credits constituting that item were put into the hands of Eandon Carter, the surviving Executor of George Carter deceased, who, she alleges, has collected, or is in progress to collect them; the Court is of opinion that the same was rightly disallowed, because the Appellees ought not to be turned around to the surviving Executor, *on grounds, of the existence of which they may have been ignorant, and when she has not furnished them with the means of charging the said surviving Executor therewith. The supposed hardship of this decision upon Mrs. Eee may however, be 'obviated, in taking the accounts between the two Executors of George Carter, in pursuance of this Decree, when each Executor is to be charged with the .sums appearing due by him, by the evidence exhibited; which accounts are hereby directed to be taken accordingly; and, as to the interest on this sum, it follows as an accessary to the principal.

As -to the private account of the Appellant Eandon Carter, with the estate of his Testator George Carter, the Court is of opinion it was proper to be adjusted in this controversy, although it may not have been specifically and particularly put in issue; and that an account thereof ought to have been taken. With respect to the accounts of George Carter with the estate of Robert W. Carter, the Court is of opinion, that, as it was the duty of Eandon Carter, as Executor of George Carter, to collect and apply debts, due to that estate from the estate of Robert W. Carter, it was also proper to adjust those accounts in this suit; the said Landon Carter being Executor to both estates.

The Court is farther of opinion, that, as the sums paid by Robert W. Carter, on account of Cooper’s debt, herein after mentioned, were never reclaimed by him in his life time; but, as, on the contrary, he provided a fund, by his Will, for the payment of the balance of that debt, they should not now be claimed from the estate of George Carter, but be considered as a payment, or advancement to him, and, as such, extinguish the previous accounts of George Carter against his father, which are stated to been of inferior amount. The last mentioned account is to be taken separately, however, from the private account of Ean-don Carter.

The Court is farther of opinion, that Cooper’s gaming debt ought not to be allowed to the Executors of Mr. Lee in the settlement of his accounts. That debt, if not stamped with fraud and imposition in its very origin, carries evidence, on the face of the instrument, by which it is supposed to have been guaranteed, that it arose for money won at gaming. Of the terms of that instrument, none of the subsequent holders *are proved, or can be supposed, to have been ignorant; and the transaction is proved to have been of general notoriety. As to the Will of Robert W. Carter in relation to this debt, it was not made in favour of Cooper, or any of his assignees. It added no new sanction, and gave no new character to this claim. It imposed no new obligation of payment on George Carter, as a condition of the devise to him, which relates to it. That devise '.vas made in favour of the Testator himself and his estate, by substituting a particular fund in lieu of his previous liability. It could not bind Cooper to waive his prior ground of claim, and rely on the substituted fund. It was made by Robert W. Carter, as a surety for Cooper’s debí, and probably under an idea that he was bound to pay it. It results, from these considerations, that the Executor of George Carter ought not to have paid this debt; and, whatever his motives may have been for. the haste, with which he proceeded to compound and discharge the same, they cannot vary in his favour the general principles, by which this debt stands reprobated as aforesaid.

The Court approves of the principles, embraced by the sixth instruction of the Chancellor in the proceedings contained; namely, “that the money, directed to be invested in Government Securities, should be accounted for, as if invested, after a reasonable time for that purpose, &c. with this exception, that the Executors should not be charged with interest thereon during such reasonable time; it being presumed that, during such time, the Executors would not use it for their own purposes, but would keep it by them for the purposes of making such investments. As to the claim of interest upon the dividends of such investments, supposing them made, the Court is of opinion that, although such ■dividends were intended for the support of the Testator’s family; and although, if such investments had been made, the dividends might have probably been received without difficulty, on application at the proper offices; yet, as they were not in fact received, no interest should be allowed on such dividends. The farthest the Court has gone is to allow interest upon rents, hires and interest, when actually received.

The allowance of such interest, in this case, would open a wide field, in relation to this subject: and the principle might "be equally relied on in all other cases, in which it might be presumed that the interest, though not in fact received, might have been obtained on application. As to what was said of its being unknown to the Executors what was the amount of the debts of George Carter; and that, therefore, they could not safely make the investments at an early period of their Executorship, the Court remarks ; 1st, that those debts, though perhaps large, were prooably not numerous; and, 2dly, and chiefly, that if such investments had been made by the Executors in their own names, as such, (as they ought) the stock could at any time have been converted into money, and applied to the payment of the debts of their Testator.

With respect to Beale’s bond, and all Lhe other items of the private accounts o£ Landon Carter, and of the estate of Robert W. Carter, with that of George Carter, other than those relating to the sums paid to Cooper as aforesaid, the Court passes no opinion upon them, as those accounts remain to be taken by a Commissioner.

As to the Commissions charged in this case, the Court is of opinion that, although, under peculiar circumstances, an allowance may be made to Elxecutors, in addition to the Commissions given to Attornies for the collections of debts confided to them, such additional Commissions ought not, in general, to be given, where the debtors reside in, or near the neighbourhood of the Executors, who, consequently, might easily collect the monies themselves.

Therefore it is decreed and ordered, that so much of the Decree of the said Court of Chancery, as conflicts with the principles now stated, be reversed and annulled; and that the residue thereof be affirmed; and also that the Appellants out of the estates of their Testators in their hands to be administered, if so much thereof they have, but if not, then out of their own estates, pay to the Appellees, being the parties substantially prevailing, their costs by them about their defence in this behalf expended. And it is ordered that the cause be remanded to the Court of Chancery, to be there finally proceeded in, pursuant to the principles of this Decree. 
      
       Note. This part of the argument was urged by the counsel for Mrs. Lee. — Note in Original Edition.
     
      
       1 Cruise, 554, § 43; — 1 Bro. Ch. Cases, 68, Bordman v. Mossman.
     
      
       Earl Powlett v. Herbert, 1 Vesey jr. 297: Pocock v. Reddington, 5 Vesey jr. 794.
     
      
       Quarles’s Executor v. Quarles. &c., 2 Munf. 321.
     
      
       Groves v. Graves, 1 Wash. 1; Shepherd, Executor, &c. v. Johnson, 2 Bast 211.
     
      
       Rev. Code, 1st vol. ch. 96, sect. 1, p. 174.
     
      
       6 Bac. 338. 389; 3 Bac. 339; 2 Atk. 467, Fleetwood v. Jansen.
     
      
       Lilly on Com. 96,98; 6 Cruise’s Dig. 8; Hale’s. Anal. 94.
     
      
       Fishery. Nicholls, 3Salk. 127; Hogan v. Jackson, Cowp, 306.
     
      
       Shep. Touch. 2 id. 399.
     
      
       Hussey v. Jacob, Com. Rep. 5; Ld. Ray. 87, same case; Jeffreys v. Walter, 1 Wils, 220; Woodson and Royster v. Barrett, & Co. 2 H. and M. 80.
     
      
       3 Bac. 336; Firebrasse v. Brett, 1 Vern. 489; and 2 Vern. 70 S. C.
     
      
       Swinb. 5; Shep. Touch. 433.
     
      
       Mewl, on Contr. 432; Swinb. 482.
     
      
       Young v. Moore, 2 Wils. 67.
     
      
      
         Hollis v. Carr, 1 Vern. 431, 432.
     
      
       Burke v. Jones, 2 Vez. 275, 291.
     
      
       Newl. on Oont. 157, 1 Vez. 254.
     
      
       Toller, 233 ; 3 Bac. 78.
     
      
       Rev. Code 1st vol. ubl supra, sect. 2.
     
      
       Jones v. Williams, 2 Call, 102.
     
      
       Toller, 482.
     
      
       Newton v. Bennett, 1 Bro. Ch. cases, 361.
     
      
       Brown v. Litton, 1 P. Wms. 141.
     
      
       Wallis v. Everard, 11 Viner 433. Title Execu tors (C. c.) pl. 8.
     
      
       Bacon v. Bacon, 5 Versey, jr. 330.
     
      
       Note. The Court’s opinion was read by Jtose Roane a few days before, but re-considered in consequence of some suggestions from the Bar. In pronouncing it on this day he made the following remarks on the part of the Court:
      The Decree is now to be entered precisely as it was reported the oth'er day, the Court only striking out so much thereof, as might be supposed to Imply that each Executor is liable for the acts of the other; a point unnecessary to be decided in this case, and which is therefore left open for future consideration and decision.
      with respect to the Costs, the Court is clearly of opinion that the Appellees will gain by this decision more, than they got by the Decree complained of. They will gain more money, though perhaps some particular items may have been erroneously decided in their favour; and therefore the Appellants were not aggrieved by that Decree, but the contrary. The Appellees wereinjured thereby, and are now to be considered as the party substantially prevailing. The Court is also of opinion, that, as the two Executors joined in this appeal, they cannot be separated in awarding the Costs. — Note In Original Edition.
     