
    IN THE MATTER OF THE ESTATE OF JOSEPH LAZARUS, DECEASED.
    Appeal from Circuit Judge, First Circuit.
    Submitted January 7, 1901.
    Decided January 11, 1901.
    Ebear, C.J., Galbraith and Perry, J.J.
    •Upon the evidence the court affirms a charge against the executor oí a will of a sum of money reported by him in his inventory as being in his possession and not accounted for in his statement of receipts and expenditures.
    Under the circumstances stated in the opinion, a charge against the executor of interest for one year at the current rate on the sum of $4550., and an order that he pay a master’s fee of $100. out of .his commissions, sustained.
   OPINION OP THE COURT BY

PERRY, J.

The executor of the will of the decedent • appeals from an -order of a Circuit Judge of the Eirst Circuit sitting as a Court of Probate, charging him with the sum of $340. as cash on hand •at the time of the institution of the trust and with the sum of •$364. being interest for one year at eight per cent on $4550. 'being funds of the estate withdrawn from the bank by the appellant, and requiring him to pay a master’s fee of $100. out of Lis. commissions.

The facts, in brief, are as follows: the will of the decedent was, after contest, admitted to probate and the appellant appointed executor on August 6, 1897. The contest against the •admission of the will to probate continued in various proceedings until April 15, 1898, when the Supreme Court rendered a decisión in the matter overruling contestants’ exceptions. On May 11, 1900, the executor filed bis accounts, to wbicb certain objections were on tbe day of bearing made by various parties interested. Tbe accounts were thereupon referred to a master, who, after taking testimony, filed a report, therein, inter alia, charging tbe executor with tbe sum of $340. above referred to. No exceptions were noted, either by tbe executor or by any one else, to this report, and tbe Circuit Judge confirmed this charge of $340. and, of bis own motion, further charged tbe executor with tbe two other items above mentioned.

Passing by tbe possible objection that no exceptions were noted by tbe executor to tbe master’s report and without reference to tbe rule contended for by tbe appellees that tbe finding of a master is entitled to as much weight as tbe verdict of a jury •and that it must be upheld if there is any evidence to support it, we think that the finding of tbe master and of tbe Circuit Judge must be sustained on the evidence. The executor filed bis sworn inventory on August 12, 1897, six days after bis appointment, and in that inventory charged himself with tbe sum of $340., describing it as “cash in J. S. Walker’s band.” Tbe presumption is that be did bis duty and promptly after bis appointment •ascertained what property tbe deceased left and took possession ■of tbe same. Tbe item was not entered by tbe executor in •Schedule A. of his accounts and tbe explanation offered by him at tbe bearing before tbe master was that tbe entry in tbe inventory was made upon information furnished by one Eleazar Lazarus, a son of the deceased, to tbe effect that tbe sum mentioned was in tbe safe of the decedent at tbe time of bis death, and that, upon opening the safe, no such sum was found there. The executor further testified that tbe safe was opened in tbe presence of said Eleazar, and, perhaps, of tbe widow. Eleazar died in 1898, and tbe widow was not called as a witness by tbe executor. Tbe master reports that on many occasions he requested tbe executor to exhibit for bis examination bis original books of accounts but that tbe executor failed to do so. Upon the evidence, the finding as to tbe $340. is affirmed.

At the time of the institution of the trust, the sum of $4550., belonging to the estate of the decedent, was on deposit in a bank. On October 20, 1897, the executor withdrew from the bank $550. on a check payable to “cash or bearer,” and on the 28th of the same month the further sum of $4000. on a check also in favor of “cash or bearer.” On October 8, 1898, the sum of $4261.84 was received by him from sales of certain stocks belonging to the estate, and on the same day he paid a legacy of $1000. Three days later, a legacy of $4000. was paid by him. The item of $4261.84 is entered in Schedule A. under date of October 8, 1898, but that of $4550. is credited in said Schedulo not until April 15, 1900. Out of what funds the two legacies were paid, whether from the proceeds of the stock or from the cash originally in bank, does not clearly appear, though the inference is a natural one under the circumstances that these payments were out of the proceeds of the stock. In any event, it is not shown that from October, 1897, until October, 1898, any investment or other use of the $4550. was made on behalf of the estate nor has any explanation been offered by the appellant as to its disposition during that period. The conclusion is a justifiable one that the funds in question were withdrawn from the bank by the appellant for his own personal use as a loan to himself and that he personally obtained the benefit of their use during the time stated. The estate certainly was deprived of the benefit of their use for that period in consequence of the executor’s wrongful act. Under these circumstances, interest is properly chargeable against the executor; nor is such charge necessarily limited to the legal rate, which for a portion of the year in question was nine per cent and for the remainder six per cent, the new law on the subject having been approved in March, 1898. The current rate of interest was eight per cent and that, is the rate which the executor would have had to pay had he borrowed the money from others or which he received or could have received if he in turn loaned the money to others, and it is also the rate which the estate could have received had the investment been made on its behalf.

G. A. Davis for the appellant.

Holmes and Stanley for the appellees.

The order that the executor pay the master’s fee of $100. out of his commissions, which amounted to $744.70, was in effect a disallowance of commissions to that extent. In view of the circumstances of the case, we see no reason for disturbing the order in this respect.

The order appealed from is affirmed.  