
    P. W. Frazier and Wife, v. Percival E. Vaux, Executor of John Pawley.
    The 10£ rule for the hire of negroes, does not apply to a case where there has been an account kept of the proceeds of their labor [*206]
    An executor, in the management of a planting interest, applied the avails of the crops to the purchase of negroes for the estate, and worked them for several years on the plantation, and kept regular accounts of the proceeds of each crop ; the investment being unauthorized, the legatee refused to receive the negroes ; on a bill filed against the executor for an account, he was put on the footing of a part owner and held entitled to a proportionate share of the crops, after making allowance for the rent of the land. [*206]
    The Commissioner, in making up accounts, must conform to the directions of the Court; and if from any cause, he cannot, he should apply to the Court for fresh instructions. [*208]
    An executor is not entitled to commissions for the years in which he has failed to make returns; and such default deprives him also of the right to recover compensation for extra services.[*210]
    John Pawley, of Georgetown, by Ms will, dated 17th August, 1810, devised all his estate to Ms infant daughter Mary, and now Mrs Frazier, the plaintiff, and appointed the defendant, Percival E. Yaux, his executor Mr. Yaux, from time to time, laid out the surplus income of the estate in negroes, for the use of his ward, and in the year 1822, bought of J. P. LaBrace, for her, twenty-five negroes on credit, at $500 per head. These negroes were placed on the young lady’s planatation, and very good crops were made for the estate, by their labor, as well as the others. On the marriage of Miss Pawley, a considerable sum was still due on this purchase, which Mr. Frazier refused to pay, and the negroes were taken under the mortgage, and sold. Mr. Frazier became the purchaser, and the proceeds of the sale merely satisfied the residue of the debt. The bill filed against Mr. Yaux, for an account, charged this purchase as unauthorized, and that the defendant was accountable for sums out estate for that purpose. The defendant filed with Ms answer, a full account of his administration.
    In April, 1828, the case was heard before Chancellor De Saussure, who held that the purchase was authorized, and ordered an account, in taking which he directed a liberal allowance to be made to the defendant for the negroes, and that he should be charged with the moneys he had paid on the purchase. The defendant appealed, and the Court of Appeals directed the account to be taken both ways, to enable them to judge whether the purchase had been beneficial to the estate.
    By this report (January 1832), the Commissioner charged the defendant with $8,102, paid towards the purchase, and allowed him for the labor of twelve and a half full hands, at the rate of £10 per hand per annum. To this report the defendant excepted, among other things, “ because Mr. Heriot [the Commissioner] has allowed for the use of the negroes that the defendant bought of J. P. LaBrace, only $44 per annum; whereas it is submitted, that upon principles of justice, as well as on the terms of the decree, the Commissioner should have allowed the defendant a portion of the crops, according to the number of these negroes ; and that the sum of $44, for hire, is inadequate.” This exception was sustained by Ms Honor Chancellor De Satjsstjre, who held that “ the defendant is entitled to credit for whatever was made by the slaves, deducting therefrom a very moderate sum for land rent.”
    From this decree the plaintiff appealed; and in April 1832, .the cause came again before the Court of Appeals. The Court, after'disposing of the questions raised by the appellant, directed the account to be taken in the following manner :
    “The defendant cannot be regarded as hiring the negroes to his vestui que trust — he supposed they were her property, and charged himself with the whole income derived from the slaves, and the rest of the estate. It has turned out that she and her husband have refused the slaves, and they must, for the purpose of this question, be regarded* as the propery of the executor, employed with the property of the cestui que trust in producing the annual income. How much of it arose from the trust estate, and how much from the property of the executor, are the only questions for decision. The Commissioner will have little difficulty in deciding these questions. Any planter acquainted with the subject can easily say what proportion of the annual net profits of the years 1822, ’3, !4, ’5 and ’6, ought to be allowed to the defendant, for the services of the twenty-five slaves, by him employed with the slaves of his cestui que trust in making the crops of those years : It is therefore, ordered and decreed, that the cause be remanded to the Circuit Court, with instructions to the Commissioner to make up the account between the parties, according to the views contained in this opinion.”
    Mr. Yaux was summoned to a reference, in January, 1833, which he did not attend ; and Mr. Cohen was present, but having been recently engaged, and being without any instructions, took no part. Mr. Heriot, the Commissioner, by his report, disallows the defendant’s commissions amounting to $2,500, on the ground that he had not passed his accounts till after the bill was filed; and allowed him only $50 per head annually, for ten negroes — and annexed two schedules, one allowing, and the other disallowing, the sums paid by the defendant towards the purchase of the negroes. The defendant objected to the report, because the account had not been taken according to the directions given by the decree. But the Chancellor overruled the objection, considering the allowance to Mr. Yaux, of a portion of the crops, an indulgence which he had forfeited ; and confirmed the report, but without making any further decree.
    From this order, confirming the report, the defendant appealed, and moves to reverse it on the following grounds.
    
      1. The Commissioner has not followed the directions given by the Court, whereby he is ordered to take the account between Mr. Yaux and his cestui que trust, as between part owners; nor is there any difficulty in following those directions, as the account filed show what the crops were — and twelve and a-half hands were before allowed as the quota defendallt> the cr0Ps °f 1822, ’3,'’4, ’5 and ’6 ; and the number of the other hands would have been shown by complainants, into whose possession they all passed, and where they now are.
    2. That the reduction in his last report of Mr. Yaux’s hands, from twelve and a-half to ten, is arbitrary and without evidence.
    3. That the defendant, being by the will a trustee, is entitled to commissions ; but if not, he should be allowed the benefit of an action at law, to recover a compensation for his services, which, according to all the evidence, were faithfully and diligently rendered, and by which the estate was greatly improved during the long minority of the devisee.
    
      Pettigru and Cohen, for the appellant.
    
      Hunt, contra.
   O’Neall, J.

The opinion of the Court at the last Term fixed the rule by which the Commissioner should have made up his report. The case was then regarded as one in which hire for the slaves, as ascertained by, the £10 rule, or by an estimate of what their hire was worth, would not be a proper allowance to the defendant. He was put on the footing of a part owner with his cestui que trust, and held to be entitled to a proportionate share of the crops. The opinion then expressed, was not a hasty one — it was formed with great care, a proper sense of what was due to the parties, conformably to the established rules of the Court. The £10 rule never was applied to a case in which accounts of the proceeds of the labor of the slaves were kept; nor can it be applied to cases where there is proof showing that they have been employed but a few years, in which the crops were uniformly good, and the prices not subject to material diminution. If, in neither of these cases, the £10 rule could have an application, it follows that the opinion of witnesses, of the price for which similar negroes could have been hired, constitutes no guide to ascertain the value of their labor.

The true question, is, how much did their services yield ? This, in the case before us, is susceptible of an easy answer.* Ascertain the whole number of negroes employed on the plantation, during the years 1822, ’3, ’4, ’5 and ’6, and the amount of the crops, and state a proportion — as the whole number of the negroes employed is to the amount of the crops, so will the twenty-five belonging to Mr. Yaux, be to the share of the crops made by them. From this, must be deducted, in the same proportion, their share of the rent, and the balance will be the gross allowance to be made to the defendant. This, divided into five parts, will constitute the annual allowance to be made to him, in each of these years, for the services of the slaves.

It is, however, objected, that Mr. Yaux forfeited all benefit of this allowance, by not attending the commissioner on the reference. To say nothing of the short notice of the reference, and the hasty manner in which the Commissioner thought proper to conduct and close it, it will be enough for our present purpose to say, that the defendant’s default did not authorize the Commissioner to reverse the opinion of the Court of Appeals, and set up a. rule of accounting of his own, not authorized by any thing in the cause. It was his duty, if he went on ex parte, to have made up the accounts on evidence furnished by the complainants ; but in doing so, the rule fixed by the Court should have been his guide.

It is said, it was impossible to allow Mr. Yaux a proportion of the crops, unless he attended and furnished the evidence of the number of slaves belonging to the estate. To me it appears that the complainants could easily, had it been necessary, furnished that evidence. They are the present owners and have them .in possession, and if they had shown how many they received on their marriage, exclusive of the twenty-five, the Commissioner might have taken that as the number, during the previous years, and made up his accounts accordingly. But there was no necessity to have gone beyond the papers in the cause. It is stated, in the defendant’s answer, that the negroes of the estate amounted to seventy-three, when he turned them over to the complainants. This was either inclusive or exclusive of the negroes now in dispute, and without proof, the Commissioner might very well have concluded that it was exclusive, and this * would have made the whole number of the negroes employed, ninety-eight; and thus, one part- of his proportion was ascertained. The amount of crops for ’22, ’3, ’4 and ’5, he has ascertained and reported from the defendant’s accounts ; the crop of ’26 was partially made when the complainants married, and the complainant, Frazier, received it; the-amount of it he could and ought to have furnished, and thus the second part of the proportion could be obtained, and then nothing remained but to set down the twenty-five negroes belonging to the defendant, and the proportion was completed; and any one acquainted with the rule of three could have produced an answer showing the gross allowance in favor of the defendant, from which would be deducted his proportion of the rent; and the nett result would be the whole allowance to the defendant for the labor of his slaves.

But whether the problem was of hard or easy solution, it was the business of the" Commissioner to pursue the directions of the Court, and not undertake to adopt his own notions of what was right and proper. If he could not get on without Yaux’s presence, and he had refused to attend, he ought to have applied to the Court for fresh instructions, or he might have been authorized by the Court to attach the defendant until he did attend. The rule is a familiar-one, that the Commissioner must conform to the instructions given to him by the Court.

In Remsen v. Remsen, 2 J. C. R. 501, Chancellor Kent says—“ Orders of reference should specify the principles on which the accounts are to be taken, or the inquiry proceed, as far as the Court shall have decided thereon, and the examination before the Master should be limited to such matters within the limits of the order, as the principles of the decree or order may render necessary.” The Commissioner, according to these observations, ought to have confined his examination to such matters as were within the limits of the order. He was directed to inquire what sum out of the crops the defendant should receive as a part owner entitled to a share; and instead of making an attempt to ascertain it, he recommends the allowance of hire, which the Court had before repudiated, and in its place had directed the account as between* part owners. To allow such a report to stand, is to make the Commissioner the appellate jurisdiction, instead of the Court.

In Lupton v. White, 15 Ves. 432, the Master reported that he could not make up the accounts, on account of the uncertainty of the evidence. It was contended in that case, as in this, that the Master ought to have charged the defendants with the whole produce of the mines, inasmuch as they had not kept clear and distinct accounts, which they ought to have done. The Lord Chancellor held, that it was the subject of further directions, and -not of exception. He remarks, “If the result is that the Master cannot take the account, it is clearly not for him, without a further direction, to apply the great principle, familiar both at law and in equity, that if a man, having undertaken to keep the property of another distinct, mixes it with his own, the whole must, at law and in equity, be taken to be the property of the other, until the former puts the subject under such circumstances that it may be distinguished as satisfactorily as it might have been before that unauthorized mixture upon his part. There maybe cases upon which the Master may charge parties upon that principle; but it must be under the direction of the Court, whether the case is proper.”

From the case of Lupton v. White, this principle is to be extracted— that the Commissioner has no right to depart from the instructions by which his account is directed to be made up, if it is even impossible, by the default of the defendant, to conform to them. He must report thé fact, and let the Court give him fresh directions. If the case proceeds ex parte, it is the business of the Commissioner to examine the case more minutely, and attend more particularly to see that justice is administered to the defendant, than if he had attended in person. The proposition is very well enforced by Lord Redesdale, in the case of Carew v. Johnston, 2 Sch. & Lef. 300, in which he says, “The decree having been obtained, the matter proceeds before the Master, and he makes a report which I must consider as the report of the party, and not of the Master. I am afraid reports of this kind are too often made, when no person appears on *one s^e' ^ ^at very improper for it is the duty of the Master to take the account, though the parties who might resist the claim do not attend, with as much care as if they did, and even with more jealousy; for when the parties do attend, it is to be expected that they will attend to their own business.”

In the case before us, the Commissioner can have no difficulty in making up his report according to the directions given, if he will take the trouble to read this and the former opinion before he commences his examination.

The defendant is clearly not entitled to commissions on the receipts and expenditures of years in- which he did not make returns to the Ordinary. In those years in which he made returns, he is entitled to.commissions. This Court has no power to order an issue, to ascertain what extra compensation should be allowed to an executor, when he has failed to make regular returns. The default deprives him of the commissions allowed by law, and also the right to recover extra compensation.

It is ordered and decreed that Chancellor Johnston’s decree be reversed,' and that the cause be remanded with instructions to the Commissioner, to mate up bis report according to the principles contained in the former and this opinion.

Earle, J., concurred.  