
    Robert Oswald and others vs. Charles Givens and Wm. B. Oswald, Executors. Chas. Givens, Executor, vs. Wm B. Oswald and others.
    IN CHANCERY — Beaufort District.
    The only question 00 which an appeal is taken, is that embraced in .the first and second exceptions to the report of the commissioner. The following extract from the Chancellor's decree,, will present the point very clearly.
    “ The ease comes up on exceptions to the commissioner’s re. port.
    The first exception on the part of Charles Give ns, is,—
    ‘ Because the commissioner has not credited Charles Givens with $10,992.12, (the amount of Bickham’s debt, and costs,) on th# 9th March, 1823, as directed by the Court of Appeals, but has credited it as of the 1st March, 1824.’
    This exception' does not appear to be well founded. The decree of the Appeal Court is sufficiently explicit, that the amount may be credited as of the 9th March, 1824. This was not said, however, with a view to its bearing interest from that date, or stopping accruing interest. The judge, who delivered the opinion of the court, afterwards adds, * It satisfactorily appears that in th* course of that year, he paid the whole amount.’ This was evidently said in reference to the rule laid down in the case of Davis vs. Wright, 2 Hill, 560, and Jones and West, there reported in * note, which has been recognized in several other cases, with respect to the method of charging an executor with interest. The payments made by an executor during the year are to be deducted from the charges against him, and then the interest to be calculated on that balance, to the end of the ensuing year, when a similar deduction from the aggregate is to be made of the payment of that year. For the purposes of this case, the year begins on the 1st, of March, and a payment made at any time after that day, must be sub. ject to the rule. Interest should be calculated on the balance due the 1st March, 1828, up to the 1st of March, 1834, and the pay. inents of the year, including the credit in question, then deducted ; and this is what the commissioner has done. Misapprehension has, perhaps, arisen from the credit having been given under the head, ‘ 1824.’ Under that head the commissioner has charged th© interest accruing for the year beginning 1st March, 1823, and credited the payments made during the Same time. That is to say, the charge and credit are as of the first of 1824, instead of the last of 1833 — a course which he has pursued throughout the account, hut which can make no difference in the result.
    This disposes of the second exception, which extends the same objection to Mr, Givens’ accounts with the individual legatees.”
    
      
      Ground of Appeal.
    
    That the Beckham execution should be credited as oí the 9th of March, 1823, so as to carry interest from that date, and not of the 1st March, 1824, as reported by the commissioner, mid sustained hy the chancellor.
    A. M. SMITH, Defendant's Solicitor.
    
   Chancellor D. Johnson

delivered the opinion of the court.

The proposition contained in the only ground of this appeal, is Very clearly correct. The general rule is, that an executor is chargeable with interest on the annual balances, from year to year* but his right to retain funds to meet demands, falling due within the current year, is an exception recognized in all the cases. An executor is entitled to no gain from the admininistration of the estate,but the commissions allowed by law and no rule can be right,, which, in its operation, subjects him to inevitable loss;- and such would be the effect of charging him with interest on the funds, which he has disbursed in the course of the current year in the due course O'f administration.

In making up this account, if I understand it correctly, these rules have in some instances been violated. The account of Mrs. Rickard, one of the legatees, will serve as an example. The proportion of Beckham’s execution, with which she is chargeable, exceeds the amount due to her on the interest account by the sum of $240, and yet the defendant is not credited with that amount until the 1st March, 1824, when, according to the rule which allows the-executor to retain funds to meet accruing demands,, he is entitled to be credited with the amount of the execution as of 1st of March, 1823and the effect is to charge the defendant with interest for the current year, on the funds which he had properly dis« pursed.

The accounts of some of the other legatees, do not stand on precisely the same footing. That of Wm Oswald, may be taken as an example. The balance due to him on the interest account, exceeds, by about $109, the proportion of Beckham’s execution with which he is chargeable t and as that fund does not carry interest, and is, therefore, primarily applicable to the payment of debts, the result is precisely the same whether the defendant is credited as of the 1st March, 1823, or 1824. The report must, therefore, bo reformed accordingly.

To-save the necessity of a future reference to the commissioner, l havo looked over his report, with the assistance of the somplain-ímt’s solicitor, Mr. De Treville, and when corrected according f<t the principles laid down, the balances against the defendant may be thus stated.

Due to Wm. Oswald according to report, .$5657 34

-4806 10 To Sarah Slowman, $4822 90 Deduct interest overcharged, 16 80

$26(54 55 16 SO -2647 75 To Sarah Rickard, Deduct interest overcharged,-

$4346 i)6 20 13 To Mary Freeman, ' - Deduct interest overcharged,--4326 83

To Robert Oswald, Deduct interest overcharged, $42S 06 35 21 -392 85

To Bethel Dewes, adin’r, Deduct interest overcharged,-$243 59 21 36 -222 23

18053 10

By Wm. Oswald, $7983 15 Mrs. Reynolds executrix, 2286 ll -10269 26

Balance, $7783 84-

Of this sum Mr. De Treville, the complainant’s solicitor, in a memorandum at the fool of a copy of the report, herewith filed, acknowledges the receipt' of $6.000, as of the 1st June, 1836, and according to the principles above laid down, the accounts may be thus stated — the interest having, been brought down in the report-to the 29th February, 1836.

Balance due 29th February, 1836, $7783 84

Interest to 1st June, 1836, — 4 months,- 181 62

7965 46

Deduct paid as of that day, 6000 00

Balance due 1st June, 1836,

$1965 46

It is, therefore, ordered and decreed, that the defendant, Charles Givens, do pay to the complainants', Wm. Oswald, Surah Slowman, Sarah Rickard, Mary Freeman, Robert Oswald, and Bethel Dewesj-the sum of nineteen hundred and sixty-five dollars and' forty-six cents, with interest thereon from the 1st day of June, 1-836, until paid ; and that the decree of the Circuit Court he reformed ae-sordmgly.

A. M. Smith, for motion.

De Tkevh,i,b, contra.

Filed 6th March, 1837.

DAVID JOHNSON.

We concur,

J. JOHNSTON,

Ü W, DESAUSSUREs  