
    John Robinson, and Others, v. Nathaniel Gist, Administrator of Hiram Coleman.
    Where an administrator rendered an erroneous statement of assets, and paid the creditors their proportion thereof, and took their assignments for the balance :— Held, that he should not be permitted to retain to his own use the funds afterwards collected. As a trustee, he cannot make profit to himself of the trust estate.— Assignments set aside, errors corrected, and administrator ordered to account. [*467]
    Hnion, Special Term, September, 1835.
    O’Neall, J., (sitting as Chancellor.) The plaintiffs are creditors of the late Hiram Coleman, of whom the defendant is the administrator.
    In 1828, three years after the death of his intestate, the defendant exhibited to the plaintiffs a statement of the Ordinary, by which it appears that after paying preferred debts, the defendant had in his hands only $1895 04 of available assets, for the payment of their debts. Of this sum he paid to them their proportions, and took their receipts for the same, with an authority to himself to receive, to his own use, any farther sums applicable to the said debts which he might be able afterwards to collect from the assets of his intestate.
    It appears, on looking into the accounts made up by the Ordinary, and on which his statement was predicated, that they were erroneously made up, in allowing defendant commissions on paying a very large debt due by his intestate to himself; and in computing interest on the amount of that debt, from 1825 to 1828, and not applying annually to its extinguishment the annual balances in the hands of the defendant since 1828.
    The defendant has collected and received of the doubtful assets r*4.co of his intestate, $1410 47, which he now contends, under the set- *- tlement and the receipts of the plaintiffs, he is entitled to retain to his own use.
    There can be no doubt that the plaintiffs accepted of the sums paid them by the defendant, under the belief that the Ordinary’s statement of the account was correct. When this is shown to have been incorrect, it follows that this was such a mistake in fact, as -would have made that settlement not binding on the plaintiffs.
    But, independent of this, the defendant cannot be allowed to set up these receipts as a purchase or gratuity from the plaintiffs or their interests as creditors in Hiram Coleman’s estate. The defendant was their trustee, and he cannot be allowed to speculate upon his cestui que trusts. It is a settled rule that he shall not make profit out of his trust. For collecting the funds, which was a duty imposed on him by law, he would claim that they should become his own. It is true that the plaintiffs assented to this in 1828; but it is equally true that they now object to it, and the defendant has not even the pretext of a consideration on which he can claim to hold, for his own use, their dividends of the funds in his hands. It cannot therefore be allowed that he should be regarded as the assignee of the plaintiffs.
    But, if there had been an assignment on some slight consideration, I should hold the relation of confidence between the defendant and plaintiffs, would render it invalid.
    It is ordered and decreed that the defendant do deposit with the Commissioner, the evidence of his intestate’s indebtedness to the plaintiffs— that the Commissioner do report the balances due to the plaintiffs, after deducting the payments made by the defendant in 1828 — that he do also advertise in the papers published in Charleston and Columbia, for three months, for the other creditors of Hiram Coleman to present sworn statements of their debts to him on or before the 15th of February next; and that he do examine and report the amounts due to them, together with the amounts due to the plaintiffs, to the next Court of Equity for Union District.
    It is also ordered that the Commissioner do charge the defendant, in his account on Hiram Coleman’s estate, with the amount retained by him as commissions for paying his intestate’s debt to himself, and the interest thereon.
    is also ordered that he do correct the defendant’s accounts made up by and before the Ordinary, Rice, by applying the annual balances in the hands of the defendant, from 1825 to 1828, to the payment of his intestate’s debt to himself, and that the amount of the difference between his debt thus ascertained and paid, and as it was allowed by the former Ordinary, Rice, be charged with interest, to the defendant.
    It is also ordered that the defendant do account for the assets of his intestate, collected since 1828, with interest thereon.
    The defendant contends, that in making these last collections, he has been put to extraordinary trouble, and has claimed compensation beyond the regular commissions.
    It is therefore ordered that an issue be forthwith made up and tried at the ensuing term of the Court of Common Pleas for Union District, to ascertain whether the defendant is or is not entitled to compensation beyond the commissions of two and a half per cent, for receiving, and two and a half per cent, for paying out the assets of his intestate ; and if this issue be found for him, then that commissions of two and a half per cent, for receiving, and two and a half per cent, for paying out the assets since 1828, and such extra compensation, be deducted from the amount decided to be charged against him ; if not, that the commissions of two and a half per cent, for receiving, and two and a half per cent, for paying out, be alone allowed; and that the balance found to be due by the defendant, as administrator of Hiram Coleman, be apportioned by the Commissioner, among’ the plaintiffs and the other creditors of Hiram Coleman. Let the defendant pay the costs of this suit.
    
      Thomson and Dawkins, for appellant.
    
      Herndon, contra.
   O’Neall, J.

This Court instruct me to say, that they are satisfied with the decree of the Judge, who sat for the Chancellor in this case. It is necessary barely to remark, that one of the grounds of appeal is founded in error. There is no limitation in the decree, such as the ground supposes, preventing the jury who may try the issue from allowing five per cent, on the whole estate, if, under the instructions of the law Judge, they should 'think the ^defendant entitled, on the facts, to .-.¡, so much extra compensation. The Circuit decree is therefore L affirmed.

Chancellors De Saussure, Johnson, Harper and Johnston, and Justices Gantt, Richardson, Evans and Butler, concurred.  