
    John Black and Benjamin Jones v. John Blakely and Wife, Administrators of Andrew Wilson.
    Executors and administrators, how they should account and pay interest j and of their commissions. Executor not allowed commissions where his accounts are irregular, imperfect or unintelligible. An executor or trustee may at all times apply to the chancellor for directions, as to the discharge of his trust. And if he has funds in his hands which he cannot loan, he may appíy for directions or pay interest himself. An executor or administrator’s accounts filed with the ordinary, must be properly vouched, or the ordinary should not receive it. It is his duty to strike out charges not properly vouched. If the highest evidence cannot be produced, the next must. The ordinary may allow him time to produce his vouchers, or evidence of payment. An executor or guardian should not break in upon the capital for the maintenance and education of minors without the permission ofthe court. An executor or administrator is not allowed commissions for those years that he fails to render correct accounts to the ordinary. The executor charged with costs, his conduct being improper. Annual rests in accounts against executors not allowed, but in particular cases. When interest was ordered to be paid annually on a legacy to be paid at twenty-one, for maintenance and education, annual rests will be allowed against the executor, or where an executor or administrator employs funds m his own business, and refuses to account for the profits, the court, at its discretion, may make annual rests, and allow interest on the annual balance against the trustee. Not allowed on a mere neglect to pay over money. (Colcock, J. thought annual rests should be allowed.) On sums reported to be due and the report confirmed.
    Bill by the complainants, the guardians of several minor children, against the defendants, the administrators of their father’s estate. It appeared from the commissioner’s report, that in 1818 and 1819 the defendants received of their intestate’s estate upwards of $3,000, belonging to the minor children. The commissioner charged the defendants with the amount and interest from the 1st of March, 1818, and the 1st of January, 1819, the periods when the moneys became due, and allowed the defendants a credit of $121 57 per annum, *with interest from the end of each year, from 1818 to 1826, for the hoard, clothing, and tuition of the children. It was objected by the complainants, that it was wrong to allow interest on the sum thus expended by the defendants; inasmuch as the amount so advanced was not equal to the annual interest of the principal sum belonging to the children in defendant’s hands.
    The accounts were stated by the commissioner in the following manner:
    
      The Administrators, Dr.
    
    To amount of first sale of property,.$1,206 07
    Interest from 1 March, 1818, to 1 January, 1826,. 661 30
    To amount of second sale,. 3,206 06
    Interest from 1 January, 1819, to 1 January, 1826,. 1,570 96
    To cash received in 1817 from debts due intestate, . 91 96
    Interest from 1 January, 1818, to 1 January, 1826,. 51 49
    To cash received in 1818 from debts due intestate, . 14 68
    Interest on $7 34, from 1 January, 1819, to 1 January, 1826,. 3 59
    Interest on $7 34 from 1 January, 1820, to 1 January, 1826,. 3 08
    6,809 19
    ^Brought up, $6,809 19
    
      Cr.
    
    By amount paid by administrator and adminis-tratrix for debts due by the estate, together with interest on those payments up 1 to January, 1826,.$ 705 69
    $6,103 50
    Deduct for the widow, Mrs. Blakely, one-third, 2,034 50
    $4,069 00
    
      Dr.
    
    Add two-thirds of rent of land in 1818,.$ 40 00
    Interest from 1 January, 1819, to 1 January, 1826,... 19 60
    Add two-thirds of rent of land in 1819,. 40 00
    Interest from 1 January, 1820, to 1 January, 1826,. 16 80
    
      Add two-thirds of rent of land in 1820,. 30 00
    Interest from 1 January, 1821, to 1 January. 1826,..' 10 50
    §4,225 90
    *Brought up, $4,225 90
    
      Cr.
    
    121 57 By boarding and clothing children, tuition, &c. in 1818,.$
    59 57 Interest from 1 January, 1819, to 1 January, 1826,.
    121 57 The same in 1819, .
    51 06 Interest from 1 January, 1820, to 1 January, 1826,.
    121 57 The same in 1820,.
    42 55 Interest from 1 January, 1821, to 1 January, 1826,.
    121 57 The same in 1821,.
    04 04 Interest from 1 January, 1822, to 1 January, 1826,...
    121 57 The same in 1822,...
    Interest from 1 January, 1823, to 1 January, 1826,. tO CD CD CO
    The same in 1823,. *3 *-* CD ■**1
    17 02 Interest from 1 January, 1824, to 1 January, 1826,.
    121 57 The same in 1824,.
    8 51 Interest from 1 January, 1825, to 1 January, 1826,.
    121 57 — 81,210 84 The same in 1825,.
    §3,015 06
    Deduct for amount received by intestate in his lifetime, instead of defendants,. 50 00
    Due the minors on 1 January, 1826,. §2,965 06
    To this report both parties excepted.
    *June, 1826. DeSaussure, Chancellor. The commissioner reports a balance of two thousand, nine hundred, and sixty-five of dollars, six cents, due by the defendants to the minor children Andrew Wilson, with interest from the 1st of January, 1826. To this report the defendants except, because they are not allowed commissions for moneys received and paid out. The commissioner overruled the exception ; as it appeared from the answer of both the defendants, that the returns made by them to the Ordinary were irregular, imperfect and unintelligible. It is not easy to draw the line exactly between those returns made to the Ordinary, which are so regular and exact as to entitle the executor or administrator to his commissions; and those returns which are so incomplete as to take away his right. The statute of the 13th March, 1798, enacts, “that if any executor or administrator shall neglect to render such annual accounts (as are before directed,) he shall not be entitled to any commissions for his trouble in the management of said estate.” The account directed to be made annually before the ordinary is to be a “just arid true account, upon oath, of the receipts and expenditures of the estate, the preceding year.” The account may be just and true in most particulars, and made in good faith; but it may be defective or erroneous in some particulars, through mistake or misapprehension. In such case, I do not think that the executor ought to be deprived of his commissions. On the other hand, accounts may be regularly returned but be so imperfect, erroneous and defective, as not to answer the purposes of the statute, which were to enable the heirs and creditors to see and judge how the affairs of the estate were managed, and the funds applied. In such a case, the accounts would be altogether illusory, and the statute would apply.
    In the case before us, the commissioner states the accounts rendered to have been irregular, imperfect and unintelligible. This, 1 fear, comes within the exclusion of the statute; and the exception was properly overruled by the commissioner.
    Another exception was made on the ground, that the commissioner allowed interest on the board of the children, from the end of each year; when the amount of the board exhausted the interest due, at the end of each year; and the board should always be paid out of the interest, which did not draw interest.
    This exception is founded on the principle, that the children entitled to an estate must, of necessity, be supported within the interest of the estate. This ought to be done where it can be done, and even as much of the income laid up as possible. But if the income should really be inadequate, then the court would sanction the breaking in upon the capital ; for subsistence and education arc more essential to the well being of the minors than accumulation. And as the court will allow it when applied to, so it will sanction it when done; provided that, after a rigorous inspection, it should appear, that the expenditure was highly proper, if not indispensable.
    The commissioner having reported in favor of the allowance, I presume it was indispensable in this case. When allowed, interest follows of course, where interest is allowed the estate against the executor on all his receipts. The commissioner overruled the exception, and the order is confirmed.
    From this decree both parties appealed, on the grounds taken in the exceptions to the report of the commissioner. The defendants besides contended, that the estate should pay the costs.
    Jan. 7, 1827.
    Irby, for the complainants.
    The administrator is not entitled to commissions unless he makes annual returns. 4 Desaus. Rep. 4G4.
    *P. Farrow, contra.
   Curia, per

Colcock, J.

The question raised by complainants’ counsel in this case admits of no doubt. The act of 1798 requires executors and administrators to make annual returns to the ordinaries of the respective districts. Now, had his executor complied, how would his accounts have been made out? At the end of 1818, which appears to be the year the money came into his hands, he would have stated the sum of (say) 83,000, as a debit against himself, with the interest thereon, making- a sum of 83,210, and then credited himself with the annual expenditure, which, it is said, was $121 57 cents, leaving- a balance of 83,088 43 cents in his hands, with which he would be debited for the next year 1819; at the conclusion of which the interest would again be calculated, and the expenditure deducted, and so on yearly.

Shall he then derive a profit from neglect of duty? This is a question which can receive but one reply. It is in vain that the complaint of hardship is urged, or that the court should be told, that the executor is honest, and meant well, lie has undertaken the performance of an important duty, and the, difficulties must, or ought to have been foreseen. If they prove too great, he may procure assistance, lie is allowed a commission, and, for extraordinary service's, additional compensation ; and at all limes may apply to the court for direction, as to the manner in which he shall discharge the trust. When his accounts are regularly made out and vouched before the ordinary, if the annual balances which remain in his hands are small, and he does not wish to be charged with interest, he may loan out the money; or if that cannot be effected, let him so state the matter to the court, and ho will he directed how to dispose of it. But it is mere mockery for tin executor to file an account which is *not vouched. What information can be obtained from such an account? The ordinary ought not to receive it. It is his duty to strike out such charges as are not properly vouched; then to strike the balance and calculate commissions on the receipts and expenditures thus established. It is asked, shall an executor lose the benefit of a payment, because he cannot produce the receipt given for the money paid? The affairs of an executor are to be governed by those general rules which apply to the common concerns of other men. If the highest evidence cannot be produced, the next must be produced. As to his returns to the ordinary, he is not limited to a day. If the account be filed yearly, he complies with the requisition of the law. If then any difficulty arises, he can always he allowed lime to produce such evidence as may appear to he wanting to establish a payment. If he is before the commissioner upon a final settlement, any satisfactory evidence of payment is sufficient.

Although the court concur in the general observations which are made by the chancellor, as to the propriety of breaking in on the capital, for tiic maintenance and education of the children, when it is indispensably necessary, yet the question does not arise in this case, and the court would avoid expressing any opinion, which might seem to imply a power in an executor to do so, to the utter destruction of an estate, without the sanction of the court. It is not possible, in this case, for the court to perceive what is due bv the executor to the minor children. The case must be sent back to the commissioner. His method of stating the account may be the more easy and convenient, but it is utterly incorrect in point of principle. The account must be made out with annual rests, according to the principles laid down at the beginning of the opinion; and if in the course of any yew, during which the executor is charged with interest, *he should pay a claim, he of course may be allowed interest on his payment to the end of the year, when the balance is to be stricken.

Having disposed of the grounds of appeal on the part of the complainant, I proceed to examine those on the part of the defendants.

The commissioner refused .to allow them commissions, and the chancellor supported his decision; and this court concur with him in his views of the exception. The act of assembly is express on the subject, and imperative on the court. He failed to make returns; or those which he did make were utterly unintelligible, which is equally a default of duty. He is therefore not entitled to commissions. We would not be understood to say, that mere trifling errors are sufficient to deprive the executor of this claim. We have before intimated how they may be avoided or corrected. If an executor should make out his accounts properly for several years, and then fail to do so, so long as he discharged his duty, he would be entitled to commissions; but from the moment he fails to render his annual accounts, he forfeits his claim to them.

The second ground is to amend the decree, so as to order that the costs be paid out of the estate.

There is no foundation for this claim : the executor has been in default from the commencement of his administration. He has, by his improper management of the estate, rendered it necessary that these legal proceedings should be instituted against him, and the chancellor has very properly exercised his discretionary power by determining that he should pay the costs.

Nott, J.

I concur in the opinion which has been delivered in this case, except in that part allowing annual rests in the calculation of interest. The rule for calculating interest has long been settled in this and I *cannot lay it down with more precision than in the words of Chancellor Kent, in the case of Connecticut v. Jackson, 1 Johns. Cha. Rep. 17. The rule for casting interest when partial payments have been made, is, to apply the payments, in the first place, to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of principal remaining due. If the payments be less than the interest, the surplus of interest must not be taken to augment the principal, but interest continues on the former principal until the period when the payments taken together exceed the interest due; and then the surplus is to be applied towards discharging the principal: and interest is to be computed on the balance of principal, as aforesaid. That method of calculating interest has been settled by the decisions of our courts for more than thirty years. There are indeed exceptions to this rule. In the case of Bowles, et ux. v. Drayton, 1 Desaus. Rep. 496, where a testator had given a legacy to his daughter, to be paid on the day of her marriage, or on her arrival at the age of twenty-one years, and directed the interest thereon to be paid annually for her maintenance and education, the court allowed interest on the arrears of interest, because the will directed that sum to be paid annually; and the provisions of the will ought to be complied with. So when an executor or trustee employs money in trade, or otherwise, for his own benefit, and refuses to account for the profits, the court may in its discretion make annual rests, and make him pay interest on those balances. Schiefferlin v. Stewart, 1 Johns. Cha. Rep. 629. But I have never known it to be allowed on a mere neglect to pay over money. I do not think, therefore, it ought to be made a general rule; but ought to be only in special cases, and those cases, like exception to a general rule, must depend *upon their own peculiar circumstances. Perhaps where a sum has been reported due by the master, and that report has been confirmed by the court, interest ought to be because then it be considered a sum liquidated.

Mr. Justice Johnson concurred in the views expressed by Mr. Justice Nott.  