
    WILLIAM A. BLOUNT and others against JOHN D. HAWKINS and others.
      
    
    Where real and personal estate were given by will to one for life who was . also appointed executor, with discretionary power to sell all or any of the said property at any time during the continuance of the life estate, for the payment ef debts,, and sueh life-tenant appropriated .the property thus willed without paying the debts, it was Held that be should have kept down the interest during his life, and that not having done so, Ms estate was helfl1 liable- to that extent to those- in remainder.
    Where slaves ranaway from a holder for life to. a free State without' the fault of such life-holder, and he in efforts to obtain them back, expended more than the value of the slaves, it was Held that the remainderman was bound to ' contribute-to such expense in proportion to the value of his interest in the property.
    Cause removed from the Court of Equity of Wake County.
    ■The bill was filed' against the defendant, Hawkins, as the executor of Sherwood Haywood'and against R. W. Haywood, as the executor of Elen or Haywood, who was one of the executors of the said' Sherwood' Haywood, by some of the residuary legatees in remainder, after the death of Mrs. Haywood, praying an account of the said estate and payment of their legacies. 'The other legatees, under the said will, were made parties defendant, and having answered, an account was ordered to be taken by Mr. Freemcm, as the commissioner of this Court. Upon the coming in of his report, exceptions were taken- to the same by tbe plaintiffs, as follows:
    1. That the commissioner allowed the tenant for life interest paid by her on the debts of the testator accrued before and after his death.
    2. That the commissioner did not charge the executor with the proceeds of the sale of the fugitive slave.
    3. The third exception is not important.
    4. The fourth exception that the commissioner allowed the defendant the whole sum paid by the executor to the Bank of New-Berne on a compromise- of the testator’s indebtedness ; whereas, it was contended by the plaintiffs a part of such sum was for interest, and ought not to have been allowed.
    ‘ Si The fifth- exception is explained in the opinion of . the Court.. - i
    - The clause in-the will of Sherwood Haywood, out of which -thq-iquestion.-of.-theipayment of interest . arises.in. this-cas&yis recited below in the- opinion efthe Court. <
    
      The cause was set down to be heard upon the report of the commissioner and the exception to it. ■
    Fowls, Rodman and Bushes, for the plaintiffs.
    
      B. F. Moore, for the defendants.
    
      
      
         Decided at the last term..
    
   Battle, J.

The first exception is, that the commissioner has allowed the tenant for life, interest, paid by heron certain debts of the testator accrued before and after his death. This exception is founded upon the following clause of the testator’s will: “ In the first place, I do hereby devise all my estate, both real and personal, to my wife, Elenor Haywood, to have, hold, occupy and use the same, for her comfort and maintenance, and for the maintenance and education of my younger children, for and during the term of her natural life; and, whereas, also, I am somewhat involved in an important law-suit, of a doubtful issue, and it may be deemed expedient to sell a part or the whole of my real estate in preference to slaves, for the purpose of paying my own debts, and those for which I am bound as security, I do hereby authorise my wife, Elenor Haywood, by and with the advice and consent of my executor, hereinafter mentioned, to sell, mortgage or convey in fee simple absolute, all, or any part of my said real estate, whenever she and my said executor may think it most advantageous to do so; and upon-a sale of the same, or any part thereof, I do hereby authorise my said wife, or my executor after her death, to convey the same in her or their names in fee simple, or for a less estate.”

By another clause of the will, the remainder in the property is given to the testator’s children, and grand-children by a deceased daughter.

The exceptants contend that the widow, as tenant for life, was bound to keep down the interest during her life; while the defendants, admitting the general rule, insist that ¡it is varied by tlm plenary power given to her as an executrix, as well as, tenant for life, as to the time and manner of paying the debts.

The exception -must be sustained-upon the authority of the cases referred to by the plaintiff’s counsel; Smith v. Barham 2 Dev. Eq. Rep. 420; Jacocks v. Bozman 1 Dev. and Bat. Eq. 192, and Jones v. Sherard 2 Dev. and Bat. Eq. 179.

The subject was fully discussed in the case of Jacodks v. Bozmm%, which was a bequest of the testator’s whole estate, consisting principally of slaves, to his wife for life, and after her death, in certain proportions, to other persons. The difficulty was felt and expressed of applying the rule to all cases alike; because, sometimes the property, while yielding great immediate profits, is gradually diminishing in value, while in other instances just the reverse will be the case. If the property given consist both of land and slaves, as in the present case, and the executrix and tenant for life elect to keep both, either during her whole life, or for any indefinite period after the death of the testator, instead of selling immediately for the payment of debts, we cannot imagine any just rule which can be applied other than to require her to keep down the interest of the debts during her life.

2. The second exception is overruled. It appears that some of the slaves, after the death of the testator, ran off and escaped to a free State, and the executrix expended a large sum in having them recaptured and brought home. They were after-wards-sold by her for a less sum than the amount of the expenses incurred in their recapture. The commissioner did not charge the estate with the proceeds of the slaves, nor credit it with the expenses of retaking them. The plaintiffs except because the estate was not debited with the proceeds. We think the commissioner was right. There is no pretence that the escape of the slaves was caused by the misconduct or neglect of the tenant for life. They were, while gone, lost to the remainderman, as well as to her. They could be recovered .only by the outlay of a large sum of money. Surely, that ought not to have been borne altogether by her, as the interest of the remainderman was much greater than hers.: Yet it was her duty, both as a temporary owner of these, as well as the holder of other slaves, to have them brought. back if she could. She acted in good faith, and it is not •sliowm that the object could have been accomplished at a less expense. If the slaves had runaway, and not gone beyond the limits of the State, then, any small expense which might have been necessary in recovering them might, very properly, have been borne by her alone; but where they were lost to all parties, the rule should be different. In most cases, the life tenant would not attempt a recapture of the slaves, if he had to bear the whole or any considerable part of the expense. Where the whole value of the property is not expended in the effort to regain it, the expense should be borne by each party in proportion to his respective interest; but where the whole is expended, then, in the absence of mala fieles, the loss must be total to each. As the commissioner has not, in the present case, credited the estate of the tenant for life with the expenses, he did right in not debiting it with the proceeds of the recaptured slaves.

A The fourth exception must be over-ruled, because the executrix was in no default in not paying interest on a debt which was not ascertained until the compromise. Besides, wo cannot see that the compromise embraced any amount which bore interest from an antecedent period of time. The plaintiff in the suit which was compromised, claimed a large sum as being due from the testator, which was resisted by him, and after his death, by his executrix. The compromise in question was then effected, by which the plaintiff agreed to take, and the executrix to pay, a round sum in which there was no distinction of principal and interest, and we cannot say, therefore, that any interest Was included in, it; but, if there were, the executrix had no means of ascertaining what it was, and on that account ought not to be charged with it.' ' i ’ , , ' ’ ,. '

5. The fifth and last exception is also disallowed. The executrix had. duties to perform in that capacity before she took the property as tenant for life. In collecting the assets, converting them into money, and paying the debts due from the estate, she was acting as executrix, and as such we cannot see why she- should, not be allowed commissions as well as any other person acting in that capacity. . It appears from the report that the commissioner has allowed her five jper cent, on the amount of the receipts and nothing for disbursements — making the sum of $1320 27, which we think is nothing more than a reasonable allowance for commissions.

The report of the commissioner must be reformed in conformity with this opinion, and may then be confirmed.

Per Curiam, Decree accordingly.  