
    Kee’s Ex’or v. Kee’s Creditors.
    April Term, 1845,
    Richmond.
    (Absent BALDWIN, J.)
    1. Appellate Practice — Parties—Representative of Co-executor. — Two executors file a bill against tlie creditors of their testator, to Rave the assets of the estate administered in equity. The executorial account is taken, charging the executor as upon a joint administration without objection: and the exceptions thereto are passed upon by the Court. Then one of the executors dies, and his death is suggested, but the cause is not revived either by or ♦against his representative : and at the same term of the Court the cause comes on for final hearing, without objection by either party, and the Court makes a decree against the surviving executor, who takes an appeal to the Court of Appeals. Held. It is too late for the appellant to object in this Court, that the cause was not ready for hearing, because the representative of his co-executor was not a party.
    2. Appellate Practice — Commissioner’s Report — Exceptions. — A commissioner makes a report, to which the parties file exceptions, and the Court, without passing upon them, refers them hack to the commissioner for further enquiry. To the report upon the recommitment, there are no exceptions. Held. That whether the items excepted to in the first report were retained in or. re: ected from the second report, not being excepted to, they were not the subject of judicial investigation by the Court below, and, consequently, are not to-be considered by this Court.
    
      3. Executors — Rule for Management of Estate.f — Executors pursuing such a course, in the management of the .assets of their testator’s estate, as a judicious man, looking alone to his worldly interests, would, under the circumstances, pursue in his own affairs, will be held justified in so doing.
    4. Same — Payment of Bonds — Unchartered Bank.§— Executors held justified in paying bonds of their testator, discounted by an unchartered banking institution, for his benefit, and the consideration of which bonds was the notes of said institution; it appearing that it was probably for the advantage of his estate that they should have been paid.
    5. Same — Compromise.—Executors held justified in making a compromise with a person having assets of the estate in his hands, for the purpose of getting possession thereof.
    6. Same — Accounts. —Executors not keeping their accounts properly, held to a rigid accountability.
    7. Same — Same — Commission. — Though executors have not kept their accounts properly, yet having been probably charged with as much as they are justly responsible for, they are entitled to the usual commission of 5 per cent, on their receipts and disbursements.
    Aaron Kee of the county of Pendleton, died in February 1816. At the time of his death he owned a considerable real estate, and was engaged in the manufacture of saltpetre and powder, and also carried on business as a merchant in the town of Franklin. By his will he directed that the manufacture of saltpetre and powder, and his mercantile business, should be continued for at least five years after his death ; and he appointed John Boggs and Samuel B. Hall his executors.
    *The executors proceeded to execute the' will, and continued to carry on the manufacture of saltpetre and powder, and also the mercantile business, until October 1816; when finding the estate very much involved, they stopped the business, and sold off all the personal effects.
    Whilst carrying on the business, the executors seems to have kept no accounts from which it could certainly be ascertained what amount of saltpetre and powder was manufactured or sold, or what amount of merchandise was purchased or sold; or out of what funds the expenses of the first, or the purchases for the store were made. The accounts were in fact kept as if Aaron Kee was alive and dealing with his own property.
    When Aaron Kee died, he was a stockholder in the Bank of the South Branch of Potomac, an unchartered institution, to the amount of 25,000 dollars; on which there was paid 10,000 dollars; and he was a debtor to the bank upon specialties discounted for his accommodation, for about 20,000 dollars or upwards. The proceeds of these specialties thus discounted, were paid to him in the notes of the bank; though upon one of the creditors refusing to take these notes, the bank had received them back to the amount of about 8000 dollars, and had given other notes of chartered banks for them.
    Soon after the death of Kee, and even before the qualification of the executors, they, in order to sustain his credit at the bank, and without any knowledge in fact that the specialties discounted by the bank were invalid, executed their own bonds for a large portion of the debt due from Kee; and they finally settled with the bank, by transferring to it Kee’s stock for the amount that had been paid upon it, 10,000 dollars, and the dividends which had accrued on the stock- since - the - death, of.Kee,‘ amounting to 300 dollars; and paying the balance out of the assets of the estate in their hands.
    *Kee being very much indebted at his death, many suits were instituted against the executors; and among others, suits were instituted on the specialties which had been discounted by the Bank of the South Branch of Potomac for Kee in his lifetime, and for which the executors had given their bonds, and the executors were about to confess judgments in these actions when the other creditors of Kee applied for leave to defend the actions on the ground that they had been paid; but the Court refused to permit the defence, and the executors confessed the judgments. The only object of these suits seems to have been to give priority to debts for which the executors had made themselves responsible.
    The executors finding it impossible, from the perplexed state of the assets, to make their defences at law, instituted this suit in the late Superior Court of Chancery holden at Staunton, against the creditors, widow, and heirs of Aaron Kee, for the purpose of having the assets administered in equity, and distributed according to the rights of the various parties; and suggesting that the personal assets were not sufficient to discharge all the debts, they asked that the real estate might be subjected to satisfy the balance remaining unpaid, after applying the personal assets. Many of the creditors answered the bill; and the case was referred to a commissioner, with directions to settle the executorial account; and to ascertain the debts yet due from Kee’s estate, and their priority and dignity.
    In settling the account of the executors, the commissioner, on the ground that they had kept no accounts, held them to strict proof, both to discharge themselves of all assets which seemed to have come to their hands, and of all credits claimed by them; and blending the profits of the real estate, and of the saltpetre works after the death of Aaron Kee, and the expenditures for carrying them on, as well as for the support of the widow and children, with the account of the administration of *the personal assets, he reported a large balance against the executors, and allowed them a commission of but two and a half per cent.
    To this report the plaintiffs filed forty-two exceptions, and the defendants filed forty-one, but these exceptions related generally to mere questions of fact, and need not be farther noticed here. The only exceptions of the plaintiffs, specially noticed in this Court, were the 8th, which was for disallowing a credit of 2000 dollars for money paid to the Bank of the South Branch of Potomac, and which the commissioner believed to be the same allowed by him under another date; and the 10th, for the allowance of but two and a half per cent, commissions. The exceptions of the defendants noticed in this Court are a part of the Sth, and the 23d, 25th and 26th. The first of these relates to a credit for money paid Givens for keeping cattle belonging to Aaron Kee during the winter of 1815-16. Kee had made a contract with Givens for keeping the cattle during the winter, and after Kee’s death Givens refused to deliver them to the executors unless he was paid for keeping them, though he was a debtor to the estate, and insolvent. The 23d, 25th and 26th exceptions refer to the payments made by the executors to the Bank of the South Branch of Potomac, and the costs incurred in the suits brought against them by the bank.
    When the cause came on to be heard upon the report of the commissioner, with the exceptions thereto, the Chancellor sustained some of the exceptions, he overruled many, and leaving others open for farther enquiry and proof, he recommitted the report. The above mentioned exceptions of the plaintiffs were overruled, and those of the defendants were sustained.
    The commissioner subsequently made another report, to which' the defendants filed two exceptions, which were sustained by the Court, and the account reformed accordingly ; and the executor Hall having died after *the making up of the account, and his death having been suggested, the cause came on in January 1830, to be finally heard, without having been revived by or against his personal representative; and the Court made a decree against the surviving, executor for the balance found by the reformed statement to be in his hands.
    Prom this decree the executor Boggs took an appeal to this Court.
    Johnson, for the appellant.
    Cooke, for the appellee.
    
    
      
      He had been counsel in this cause in the Court below.
    
    
      
      Appellate Practice — Commissioner’s Report — Exceptions. — In Kyle v. Conrad, 25 W. Va. 772, the court, In referring to the principal case and Simmons v. Simmons. 33 Gratt. 451, said: “These cases certainly establish the position, that unless errors appear upon the face of a report, they cannot be taken advantage of for the first time in the appellate court, when no exceptions were taken to the report in the court below; and that an error in a commissioner’s report not appearing on its face, and to which no exception was filed in the court below, will be disregarded by the appellate court, even though the identical error had been committed in the making of a previous report, and it had then been excepted to, and the cause had been remanded to the commissioner without deciding on this exception; for in such a case this error not being excepted to in the last report of the commissioner will be regarded as waived by the parties, who on account of it had excepted to a former report. But this principle has no application in this case.” The principal case is cited upon this point in Morrison v. Householder, 79 Va. 632, and Arnold v. Casner, 22 W. Va. 458.
      It was held in Kyle v. Conrad, 25 W. Va. 760, that if the circuit court by its decree determines a point put in issue by the pleading, or if the court on an exception to a commissioner’s report decides the point and by decree refers the cause hack to the commissioner, and he makes a report in accordance with the point so decided, and the court renders either a final decree or a decree settling the principles of the cause upon such report, the appellate court will review the point so decided; though there was no excepticin in the circuit court to the commissioner’s report on the matters embraced in the decision of the circuit court on this point.
      In Carskadon v. Minke, 26 W. Va. 729, the court, citing the principal case, held that items or matters excepted to in the report of a commissioner, which is recommitted by the court, will not be open for judicial investigation either in the court below or the appellate court, in acting upon the report made upon such recommittment, unless such items or matters are excepted to in the latter report.
      fExecutors — Rule for Guidance of; — The general rule for the guidance of executors in the administration of their trusts, as stated by Judge Stanard in delivering his opinion in Kee v. Kee, 2 Gratt. 128, is quoted with approval in Southall v. Taylor, 14 Gratt. 281, and Davis v. Chapman, 83 Va. 71, 1 S. E. Rep. 472 See generally, monographic note on “ Executors and Administrators ” appended to Rosser v. Depriest, 5 Gratt. 6.
      §Same — Payment of Bonds — Unchartered Bank. — In Surber v. Kent, 5W. Va. 103, it was said: “In Keen. Kee, 2 Gratt. in, the executors were held justified in paying bonds of their testator- to the ■ amount of twenty thousand dollars, discounted by an unchar-tered banking institution, for his benefit, and the consideration of which bonds was the notes of said institution issued contrary to law.” See also, Wilson v. Spencer, 1 Rand. 76, holding that the issues of such unchartered banks are utterly void.
    
    
      
      The cause was argued before the appointment of the present Reporter.
    
   STANARD, J.

The first and preliminary question in this case, is, were there proper parties before the Court when the decree appealed from was rendered?

The supposed defect of parties results from the death of Hall, one of the executors of Kee, which was suggested in the Circuit Court at the term at which the decree was rendered, and the failure to revive the suit by or against his representative before the decree was rendered.

The suit was instituted by Boggs and Hall, the co-executors of Aaron Kee, against the creditors of their testator, some of whom were prosecuting suits at law against the executors, and others named who were not suing at law, and all other creditors not named, and the widow and infant children of their testator. The main object of the suit was to have the execu-torial accounts settled under the direction of the Court, and the remaining assets, if any, appropriated to the creditors entitled thereto; and protection from the pursuit at law of the creditors for the payment of whom the assets were inadequate.

In the progress of the suit the executo-rial accounts were stated on commitments and recommitments to commissioners *of the Court, and reported to the Court. Numerous exceptions were taken by the parties; which were adjudicated by the Circuit Court, and in conformity with the decisions of the Circuit Court a reformed report, to which there was no exception, had been made and returned, before the term of the Court at which the death of Hall,'the executor, was suggested; and the case was then heard and the decree rendered, without objection from the surviving plaintiff and executor that it was not proper to hear and decide the cause before the representative of his co-executor was made a party; without a suggestion from him that he required the aid of such representative in the settlement of the exec-utorial accounts; or to share the burtheh of the decree that might be rendered; and without any step having in view the revival of the case against such representative.

The suit was brought by the executors jointly. All the accounts of the administration rendered by them, were joint. In the whole course of this tedious and voluminous litigation, the administration is represented as joint, for which both executors were jointly and severally liable to the whole extent, so far as the assets were chargeable by creditors; and during the life of Hall, every litigated question, the decision of which the appeal brings under the revision of this Court, was decided by the Circuit Court. It is in a case so circumstanced that this objection for the want of parties is urged in the appellate Court, as requiring that Court after the case has lingered so long there, to send it back to the Circuit Court without any investigation of, or decision on the merits: and leave the case to the fate to which such a course would inevitably consign it, that of a litigation which may be protracted for an indefinite length of time. Is the objection tenable?

The objection is urged in behalf of the surviving executor, for the first time, in the appellate Court. If any other benefit could result to him than the mere delay of *this protracted litigation, I should think it ought not to avail in the appellate Court, because he on the face of the record, is confessedly bound for the whole of the assets, and his failure to suggest or insinuate the objection to the proceeding of the Court below, without the representative of the co-executor, and to claim that he should be made a party, to aid in protecting him from, and sharing the burthen that the decree might impose, was a waiver of the right, if right he had, to have that representative a party before the decree should be rendered. Furthermore, what advantage could the surviving executor derive from having the representative of the co-executor before the Court? To have a new account, so as to shew the separate primary responsibilities for the aggregate amount of assets shewn to be in hand by the joint account? This would have been totally inadmissible. After acting and accounting jointly, for near twenty years, without an effort, or even, the intimation of a wish, that the account? should be framed and stated so as to shew their several responsibilities inter se, the court ought not to have even countenanced such a pretension. To have indulged it at that stage of the litigation, would have violated the plainest principles of justice, by rewarding with success a scheme to add indefinitely to the delays to which the parties had already been exposed. The decree on the merits, involved in the Court below the consideration and decision of 42 exceptions of the plaintiffs, and 41 of the defendants, some of which branch out into specifications amounting in the aggregate to 63. These exceptions and specifications presented upwards of 146 questions of law or .fact, or both, for the adjudication of the Court below, all of which might have been propounded for adjudication by this Court, by the appeal that has been taken to it.

The counsel of the appellee insisted that the questions of fact involved in the exceptions to the commissioner’s ^report, and adjudicated by the Judge in his decision on the exceptions, were not examinable in this Court; and on that ground forbore to enter into the investigation of the evidence bearing on them that the record furnishes. My opinion is, that as the appeal in a chancery case brings up for examination by this Court, every question of law and fact on which the decree is founded, and which has been adjudged by the Court below, errors in the decision of facts involved in exceptions to a commissioner’s report, and dependent on testimony examinable by the Court below, may be with as much propriety objected to in this Court, as error in the adjudication of any other fact adjudged by the Court below, and necessary to the vindication or impeachment of its decree. It is not sufficient to say that such investigations impose on this Court a burthen which it cannot bear, and dispose of the mass of business which is brought into it. That is an argument for the Legislature, by which the jurisdiction of this Court is defined; and the subjects for the action of its judicial functions determined. The law which gives the right of appeal as to law and fact, imposes on the appellate tribunal the duty of investigating and deciding both.

Although all the questions of fact involved in the 146 exceptions and specifications might have been brought up, and propounded for decision by this Court, a very large portion of them have not been so brought up by the appeal in this case. The number requiring investigation by this Court is comparatively few. They have been so reduced thus: (

1st. In respect to many, the Court below forbore to make anjr decision, and referred them back to the commissioner for further equiry, and new evidence. To the report on this recommitment, there are no exceptions, and whether the items have been retained in, or rejected from the last report, they did not form (as there were no exceptions to that report) matter of investigation *by the Court below, and consequently not for this Court.

2d. Many of the exceptions of the plaintiffs were sustained, and still more of the exceptions and specifications of the defendants were overruled; and the defendants do not in this Court controvert those decisions.

3d. Many of the overruled exceptions of the plaintiffs are not insisted on, and many of the sustained exceptions of the defendants are not controverted by, the plaintiffs in this Court.

[The Judge then noticed the exceptions which were the subject of controversy in this Court, and stated the opinion of the Court upon them; and proceeded :]

The transaction with the bank deserves a more special notice.

At the death of Kee, he owned stock in the Bank of the South Branch of Potomac, an unchartered institution, to the amount of 25,000 dollars, on which he had paid 10,000 dollars; and he was the ostensible debtor of that bank, by specialties given for loans from it to the amount of about 20,000 dollars. His executors,, between his death and their qualification, made themselves responsible for this debt, or at least for 16,000 dollars, and afterwards proceeded to pay off the whole of the debt to the bank, appropriating to it the stock for the amount paid on it, to wit, 10,000 dollars, and the dividend of 300 dollars on it, accruing after the death of their testator, and the excess of the debt over these sums of 10,000 dollars and 300 dollars, they paid out of the assets of their testator, and claim credit therefor in the settlement of their executo-rial accounts. The Court below disallowed this credit, on the ground that the association with which the debt was contracted was illegal, and the consideration for which the specialties were given to it rendered them invalid; and the executors had improperly applied the assets of their testator to the payment of them.

The objection thus founded on the legal invalidity of the specialties given for the loans, rests not. on the ascription to the executors of actual knowledge that the law invalidated the specialties, but on the maxim that ignorance of the law does not excuse; and the responsibilities of parties are governed by the legal intendment of knowledge of what the law is.

1 think that it cannot be reasonably doubted, that in this case the executors paid these debts under the full conviction that they were valid: that they did not even conjecture that there was a colourable objection to their binding obligation on their testator and his estate; and the payment of them, so far as actual knowledge and intention can impress a character on the act was bona fide. Even the creditors who now insist on withholding this credit from the executors, and their able counsel, with their vigilance sharpened by the threatened loss of their debts, for more than 18 months after the death of the testator, were wholly unaware that these specialties were invalid. This is evinced by the fact that when the executors were about to confess judgments on them, such confession was resisted byr the creditors, solely on the ground that the debt had been paid in whole or in part by the executors. If this stern maxim of law, which implies knowledge where it does not exist, and fixes responsibility ás if it actually' existed, shall subject the executors to the heavy loss of the payment in question, we may regret, but have no right to avert the consequence. We are not, however, forbidden from considering such a consequence as the infliction of a great hardship; and of requiring that before it is inflicted, the case for the application of the judgment producing it shall be made out on distinct allegation, and by clear proof of the facts which invalidate the specialties in question. It is not sufficient that the debt was contracted with an unchartered bank. Such .a bank might legally exist under the act of 1805, as a bank of deposit, *and even of discount, if it did not issue its bills or notes, or bills or notes of an unchartered banking company. This is conceded in the case of Spencer v. Wilson, 1 Rand. 76; and even a company formed with the intent to issue such bills or notes, would not be wholly outlawed. A valid obligation could be incurred by or to it, by a contract which had no connexion with the issue or circulation of such notes. The case of Spencer v. Wilson shews that the defence and the adjudication of its sufficiency, rested on the distinct averment, and the admission or proof that the consideration of the security sued on, was the1 notes of an unchartered banking company. In this case there is no distinct allegation that the consideration of the specialties was the notes or bills of the unchartered company. The proof, however, is, that such notes were received on the discount of the specialties for a large portion, if not the whole amount. But coupled with this proof, is the further proof, that in respect to a considerable amount, from 5000 dollars to 8000 dollars of the notes were returned, and notes of chartered banks received. Did my ultimate judgment on this question turn on the sufficiency of the allegation and proof that the consideration of the specialties was the notes of the unchartered company, I should, if I resolved that question in favour of the appeltees, do so with some hesitation; and to the extent of the substitution of the notes of the chartered banks, I should strongly incline to think, that to the extent thereof, that substitution gave validity to the specialties. This I should found on the analogous case, the law of which is well settled, of a security given on a usurious contract. In such a case, a subsequent rescission of the. agreement to give and take usurious gain, and rejection thereof from the security, by the parties, free it from the usurious taint, and give it validity. But as my opinion on the matter in judgment does not require the resolution of either of these questions, I give no opinion on them, and dismiss them from further investigation.

^However strongly the conscience of Kee might have been invoked to return the value he had received, and which had availed him to its nominal amount, and to save his sureties from the harassment of suit's, if not the opprobrium of the defence, which, if successful, confiscated for his benefit the property of those who had confided in their engagement, his executors might not be justified by the stern principles of law, in listening to such invocation. If the law, in its rigour, absolved his testator from obligation, and the consequences to the estate of the testator of a successful appeal to the protection of its rigid rules, were limited to the exoneration of the estate from the claim, it may have been the duty of the executor to appeal to that protection, regardless of the inculcation of a morality that might reach and affect the conscience of his testator. The duties of the executor, though they may not be moulded by the finer moralities, which though sanctioned by conscience, cannot be enforced by law, are yet to be performed under the obligations of sound judgment, acting on those considerations of worldlj’’ prudence, which affect the safety of the pecuniary interests confided to his care. When such judgment, so governed, is fairly exercised, and (tested by the facts existing and known at the time it is exercised) is such as would probably be formed by a judicious man, managing his own affairs, with reference to considerations of mere worldly prudence, the executor is justified in acting on such judgment; and so acting, is not responsible for alleged losses, resulting from his conduct.

£oolcing to the condition of things at the death of the testator in respect to the state of his assets and responsibilities, the state of his business and property, and connections with others, the question is, were the executors in the act of paying the debts due the Bank of the South Branch of Potomac governed by a judgment, having respect to the considerations of worldlj” prudence *alone, which a judicious man, under the influence of such considerations, would probably form and act on, in the arrangement of his own business.

The only resistance that could be made to the claim for those debts, was the defect of legal obligation, arising from the nature of the association to which the debts were contracted, and the nature of the consideration received from that association. Kee had been one of the association, and owned 25,000 dollars of the stock, on which he had paid 10,000 dollars. Supposing this resistance made, it at once involved the loss of that stock; for the principle on which the resistance was founded, disavowed the right of the associators to all legal remedies to enforce their responsibilities, or claims inter se. If this was the only consequence, the resistance might be recommended by worldly prudence, for though its success involved the loss of the 10,000 dollars paid on the stock, it absolved the estate of upwards of 20,000 dollars of debt. But there were ulterior’ 'consequences‘’which might follow, and which prudence required should be deliberately weighed. The responsibilities of the association were large and indefinite. The means to meet those responsibilities were the notes that had been discounted; and these were notes either of the stockholders or of others. The principle of law which would absolve the stockholders, would a fortiori absolve those not implicated in the legal delinquency of forming the association; and the example of an associate claiming such absolution, would, in all human probability, be followed by the other debtors on discounted notes. The proximate and almost inevitable consequence of the example of claiming exoneration from the debts, on the ground of want of legal obligation on the contracts with the association, and that too in behalf of one of the associates, would have been an utter annihilation of all the means of the association to discharge its responsibilities ; and those responsibilities *would remain a charge on the stockholders, binding them jointly and severallj’ to the full amount of their large- and indefinite extent, as far as the law might allow a remedy to enforce them. To what extent such remedy might exist, was and is problematical. Whether there would . have been a legal remedy to recover the amount of the notes that might have been issued by the association, and in the hands of third persons not connected with it, was, and is undetermined. The decision of the Court of Appeals, which sustained the de-fence to a note discounted by such association, leaves undecided the question, whether the law will allow a remedy to the holder of the note against the association, with a strong intimation, however, that the policy of the law which forbade the remedy on the discounted note, did not oppose a barrier to the remedy on the note of the association. The able counsel, however, who maintained the nullity of the discounted note, conceded that the holders of the notes of the unchartered bank, could recover on them from the stockholders. When more stringent statutory inhibitions were provided against unchartered banks, it was the policy of the statute, to give it more certain effect, to provide that the notes issued by such bank, should bind each and every member of the association, and this statute had passed, and its provisions were known before the ■ payment was made by the executors of Kee. But there were other responsibilities that would more certainly bind the association. • Responsibilities on deposits, on advances to its use, on transfer notes or bills of others, acquired by the association, and ■ passed off for value. Under the statutes in force at the time, private banking was, to a certain extent, lawful; and individuals, or many associated in partnership, might lawfully do all the business of banking, . such as receiving deposits, discounting bills, contracting loans, or making loans, dealing in specie or the notes of chartered banks or individuals, in short all the ' ^business of banking, except issuing • bills or notes of an unchartered banking company. Such responsibilities diversified in form, and large in amount, in all . probability, existed at the time of the death of the testator; and the destruction of the resources of the association by a successful resistance to its claims on the notes discounted by it, would leave the private estates of the associators exposed_ to the full amount of all such responsibilities. Would it have been prudent and judicious, having regard alone to the pecuniary interests of the estate, to have adopted a course which would have exposed it to the imminent risk of, if it did not certainly incur consequences that might probably prove ruinous to the estate? Those consequences, by being averted, cannot now be accurately gauged. No one can, I think, safely affirm, even at this day, that the course adopted by the executors, in applying the stock their testator held in the bank, in part discharge of the debt, and paying the residue of that debt out of the assets, has not averted from the estate a loss more than equivalent to any gain that might have resulted from the denunciation of the association formed by their testator and others, as illegal; and the resistance on that ground of the claim resulting from his dealings with his associates. Still less can it be affirmed that a prudent and judicious man, managing his own affairs, having respect solely to the probabilities of profit and loss to result from his course, would not, under similar circumstances, have adopted that which was taken by the executors. I, therefore, am of opinion that the Court below erred in denying credit to the executors for the payments made to the Bank of the South Branch of Potomac, not including in such payments that claimed by the executors’ eighth exception. The decision of the Court below, on that exception, is correct, and ought to be affirmed.

The other Judges concurred in the opinion of Stanard, J.

*The decree of the Court was as follows:

The Court is of opinion, that the profits of, the plantation and the saltpetre works, after the death of the testator, were equitable assets, and consequently that the accounts, embracing the charges for conducting them by the executors, after the testator’s death, and for supplies to the testator’s family, and the credits for the profits derived from them, should not have been involved in the account of the legal assets, and the administration thereof by the executors. But of the charges properly incurred by the executors in respect to the farm and saltpetre works, and the profits derived from them, a separate account should have been stated, the balance of which would be equitable assets, for which as such the executors would be chargeable. In.stating such separate account, a reasonable credit in favour of the legal assets should be'made against the profits, for the hire of the slaves and personalty of the testator employed on the farm and saltpetre works since the testator’s death, and for the amount of such credit for hire and personalty, the executors should be debited in the account of the legal assets.

The Court is further of opinion, that considering the principle on which the executors have been made accountable for the estate of their testator, (and justly so, having reference to the manner in which they have kept the accounts of their administration,) they have been charged in favour of those interested in the estate, probably, with as much, and perhaps more than they would have been, had the accounts been kept with the utmost exactness, it was not proper to inflict on them the further penalty of the loss of part of the customary commission of 5 per cent, on the personal estate for which they are held accountable ; and the 10th exception of the executors to such reduction of commission ought to have been sustained, and they should be credited for the customary commission of 5 per cent.

The Court is further of opinion, that the executors should have had credit for the excess of the payments made by them to the Bank of the South Branch of Potomac over the dividend received by the executors of that bank, and the amount allowed for the stock of their testator in that bank, excluding from such credit the payment claimed by the executors by their 8th exception, (the decision of the Court below on that exception being approved and affirmed,) .and the costs incurred in the suits in behalf of the bank, and bringing the credit for the surplus of the debt paid the bank over the said dividend and allowance for stock into the account, so as to withhold from the executors any commission on the said dividend, or on the allowance for the stock so discounted, against the debt to the bank. The Court is further of opinion, that the exception of the defendants to the credit claimed by the executors for the payment made by them to Givens to get the cattle belonging to the estate out of his hands, ought to have been overruled, and that the Court below erred in sustaining it; and that the decree, so far as it conflicts with the, foregoing opinion, is erroneous.

The Court doth therefore adjudge, order and decree, that so much of the said decree as is above declared to be erroneous, be reversed and annulled, and that the residue thereof be affirmed, and that the appellees pay to the appellant the costs by him expended in the prosecution of his appeal in this Court; and the case is remanded to the said Circuit Court for further proceedings, in conformity with the foregoing opinion and decree.  