
    William Wright Executor of Samuel Wright, Deceased v. William Wright and Others.
    Executors, their commissions and mode of accounting. What interest charged. Costs incurred in suits relative to the estate ought to be allowed an executor, unless good reasons be shown against it. The court of appeals can only lay down rules by which cases are to be governed. The facts of the case are to be investigated by the commissioner and chancellor. An executor is not entitled to commissions unless he makes his annual returns, to be examined by the ordinary. If the executor has done his duty he is entitled to his commissions on the aggregate sum, paid over to the distributees, of principal and interest. If money is placed out at interest, the executor is entitled to commissions, on paying it away; and whether he places it in the hands of others, or keeps it in his own, makes no difference, so it is paid. Where an executor lets out money upon interest and receives it in annually, and re-invests it for the benefit of the estate, making it accumulate until paid over, he is entitled to ten per cent, and when he suffers it to accumulate in his own hands, in the same way, he will be entitled to the same compensation, but not when he is decreed to pay it over, at the close of his administration, on moneys retained by him. The only evidence which the parties interested in an estate can usually offer, of the amount to be administered, is the inventory return by the executor. It is conclusive against the executor, that he must show by satisfactory vouchers how it has been administered. The ordinary should not allow an executor’s accounts, unless the proper vouchers are produced, or their absence accounted for. And it ought to appear on the face of the settlement, what was the nature of the evidence on which the return was accepted and allowed. Though the evidence with the ordinary is not conclusive, per se, in favor of the executor, it ought to be received for as much as it is worth, under the circumstances. The regularity of the accounts, the death of witnesses, loss of vouchers, and lapse of time, must be taken into consideration. Where sixteen years elapsed after the accounts were settled and allowed by the ordinary, it is not to be presumed that he suffered them to pass without satisfactory evidence of their correctness, and they ought therefore to be a complete protection to the executor; subject however to be impeached by the other side for fraud or error, the burthen of proof being upon them. An executor may show that an item in his return was charged by mistake. Without such proof he is bound by his return. An executor cannot sell without permission of the ordinary. If he sells, not having funds, he must account for the value of the property with interest. If an executor suffers the family of his testator to take possession of the property, and to convert any part improperly to their own use, he is liable for it, they being regarded as his agents. An executor has no right to exceed the income of the estate, and to contract debts, either for the benefit of the estate or for the support and education of the family and children of his testator, without permission of the court. Where the income is insufficient, it is his duty to apply to the court to make such further provision out of the estate as may appear necessary. Such advances by an executor however will be allowed, if he shows the necessity and prudence of the expenditure. If an executor omit to settle his accounts for several years, and then make a return for that whole period, lie will only be entitled to commissions for the year in which his account is rendered, and the allowance must not be made to embrace those years in which no returns have been made. And unless his accounts are so made out that the transactions of each year may be distinctly ascertained, no commissions ought to be allowed. The question of animal rests considered. Interest must be paid on the interest where by the will the interest is required to be paid annually for the legatee’s benefit. As a general rule in this State, interest is not to be calculated with annual rests on moneys in executor’s hands. Some cases require it. Difficult always to draw the line of distinction. If the executor keep the funds against the directions of the will, he must pay interest with annual rests. Same strictness not to be required in this State as in England, on account of the difficulty of vesting funds here. Exceptions to the general rule, where the will directs the laying out the fund to accumulate, or the executor unnecessarily calls in money which is accumulating, or employs it in trade, or otherwise, and refuses or neglects to account for the property. In such cases annual rests are made. All profit must enure to the cestui que trust. The rule for calculating interest when partial payments have been made, is to apply the payments in the first place to the interest due, and the surplus to the principal. Subsequent interest is to be calculated on the balance of principal remaining due. If the payment be less than the interest, the surplus of interest is not to be added to the principal. (Black v. Blakely.) A receipt will not conclude a party from showing a mistake in the settlement. One defendant may be a witness for or against another in equity, where his interest is not to be affected by his testimony. Case sent back to the commissioner to have the accounts adjusted according to the rules laid down by the court.
    
      This bill was filed for the purpose, first, of correcting an error made in a settlement which had taken place between the complainant and three of the legatees of complainants’ testator, Elijah Watson and wife, Daniel J. Beacham and wife, and Henry Paisley and wife; and secondly, to compel all the legatees to come to a settlement and account with him, against three of whom, William G. Wright, James Wright, and Tobias Cook and wife, he had demands to the full amount of their shares. The defendants’ answer admitted the error in the settlement, the demands which the executor had against three of them, and consented to come to an account. Their answer urged many objections to the executor’s accounts, which will more fully appear from *the exceptions to the commissioner’s report hereafter to he stated. The five first clauses of the testator’s will contained specific legacies of a horse, saddle and bridle to each of the testator’s children on their respectively arriving at full age or marrying. The sixth clause of the will was as follows: “Item, I lend to my beloved wife, Patience C. Wright, while she remains my widow, all the rest of my property both real and personal; and it is further my desire that my children he kept together and maintained and educated out of the property of my estate until they marry or come of age. My further will and desire is, that after the death of my wife, all my remaining slaves, stock, household and kitchen furniture, and every parcel of my property real and personal, that is not before given, be set up and sold at public auction, and an equal division to be made. I ordain, nominate and appoint my brother, William Wright, executor to this my last will and testament. It is further my will and desire, that if my wife should marry again, that my executor should lend her property sufficient for a comfortable maintenance during her life.”
    The case was referred to the commissioner at June term, 1825, and at the next term he submitted a report, to which both parties excepted.
    These exceptions came on before Chancellor DeSaussure, June, 1826.
    The complainant excepted, first, “Because the commissioner did not allow him commissions on the interest with which he charged him.”
    The commissioner charged the complainant with the interest on the whole amount of assets in his hands from the time he respectively received them, and the complainant contended that under the act of the legislature he was entitled to ten per cent, commissions on *the whole amount of interest with which he was charged. The commissioner overruled the exception, and the chancellor confirmed his decision without assigning any reason.
    The complainant’s second exception was, “That the commissioner charged him with the receipts charged in the return of 1810, and refused to credit him with the payments made in the same return.”
    In the year 1810, the complainant made a return on oath to the ordinary, which was approved and filed. In that return he charged himself with $734 received, and credited himself with $608 45 paid out. On the reference, the defendants, in order to charge the complainant with the amount of $734 contained in thatreturn, introduced the return as evidence. The complainant contended that the return, when so introduced, became good evidence to discharge as well as to charge him, and must be taken altogether. The commissioner, however, ruled that the return might operate to charge the complainant, but could not be allowed to discharge him. The complainant then showed by proof the following circumstances in support of the credits contained in his return. He proved that the testator at his death was indebted to the different persons mentioned in that return, and in about the sums there mentioned; that Simpson, one of the persons mentioned in the return, to whom the testator was indebted, was dead and his books burnt; that Larkin Griffin, Dr. James Moore, W. Caldwell and Andrew Lester, to whom were also debts due by the testator, and which the return charged as paid, were either dead or removed.
    By Major Black it was proved that the testator owed him at his death the sum charged in the return, and that it had been paid. The complainant was enabled to vouch the payments made to Elizabeth Wright and John Neely. The defendants replied that some of these debts *were paid by the widow. The complainant rejoined by showing, that under the will the widow was entitled to the whole estate, and actually had the funds with which the complainant had charged himself placed in her hands for the payment of the debts; and if any were paid by her, they were paid out of these funds. He also showed that when he settled with three of the defendants, the receipts and payments contained in that return were considered as mutually balancing each other, and, therefore, were not taken into the calculation. Notwithstanding these facts the commissioner rejected the payments contained in the return, and charged the complainant with the amount received.
    The complainant’s exception was therefore overruled by the commissioner. The chancellor concurred with the commissioner.
    The complainant’s third exception was, “That the commissioner had charged complainant with the amount of Reuben Ligon’s note, when it did not appear that there ever was such a note due to the estate, but, on the contrary, from the return of 1810 it appeared as a debt due by the estate.”
    The return of 1810 was the only evidence offered to charge the complainant with this item. In that return it appeared to be a debt due by the estate, and the complainant contended that in fact it was anote due by the estate to Reuben Ligón.
    The commissioner overruled the exception, and the chancellor concurred with him, “but not entirely to his own satisfaction.”
    The defendants excepted to the report, first, “Because the commissioner ought to have charged complainant with the value of the negro Caesar, and his hire from April, 1812, as it appeared that he was sold by the executor without any order from the ordinary, and the executor then had funds sufficient to pay the debts of the estate.”
    *It appeared that the negro Cassar had been seized by the Sheriff of Laurens to satisfy an execution recovered against the estate of Samuel Wright on a debt due by the testator at his death. The complainant attended on the day of sale, and thinking it would be better for the estate to sell by private contract, he sold the negro for what all the witnesses said was a full price. The negro was sold by consent of the Sheriff, and the money applied to the execution. There was no evidence that the complainant out of the funds of the estate could have paid the debt without selling the negro. The amount for which Caesar sold, and interest, were accounted for by-complainant. The commissioner overruled the exception, and the chancellor confirmed his decision.
    The defendants’ second exception was, “ That the commissioner should have charged the complainant with the amount of the property which he suffered Thomas Ligón to dispose of belonging to the estate.”
    The exception related to some property, which at the death of Reuben Ligón, Thomas Ligón, his administrator, sold as his property. Reuben Ligón married the widow of Samuel Wright, deceased, and at his, Reuben Ligon’s death, his administrator sold the crop at the place where she lived, which the defendants contended belonged to the estate of Samuel Wright. The complainant replied that the widow, Reuben Ligon’s wife, having an estate for life in Samuel Wright’s estate, her husband would, of course, have an interest in the same for his own life, as the case might be, and that, therefore, the crop made by Reuben Ligón belonged properly to his estate. If he was incorrect in this conclusion, the complainant contended that he was not liable, and that defendants should look to Thomas Ligón. He also urged that the widow, Patience C., was the only one who had any right to complain; for if the property did not belong to Reuben *IQD1 Ligón, it belonged to her, and hence *the defendants had no J right to ask an account from complainant, when she had lived for nearly ten years after the sale by Thomas Ligón and made no com, plaint. The commissioner overruled the exception and the chancellor concurred.
    The defendants’ third exception was, “ That the commissioner allowed the complainant commissions, although he never made annual returns, as required by law, and, in other respects, neglected to discharge his duty as executor.” It appeared that the defendant had made returns on the estate for every year in which he received anv sums of money belonging to the estate. The defendants relied solely on complainant’s returns to charge him with the testator’s estate. The commissioner allowed complainant commissions on the amount of his returns made. Lie, therefore, overruled the exception, and the chancellor concurred with him.
    The defendant’s fourth exception was, “Because the commissioner should have charged the complainant with the amount of property which he suffered Reuben Ligón to sell and dispose of belonging to the estate.” Upon the marriage of the widow the complainant believing that the whole of the testator’s estate was not more than enough for the maintenance of the widow and children, the children being then all small and, of necessity, would remain with their mother, permitted in the exercise of the discretion given him by the will, the property to remain with the widow. Reuben Ligón sold a mare, a few goats and a steer, amounting altogether to, perhaps, sixty dollars. It appeared, however, that the children were supported and maintained by him without any allowance, except the estate in his hands. The commissioner overruled the exception, and the chancellor concurred.
    The fifth exception was, “That the commissioner allowed the complainant the costs that accrued in the *case of Washington Williams v. Complainant.” The case alluded to was brought, and the recovery had against complainant, as executor. The subject matter of the action was for necessaries furnished defendants after Samuel Wright’s death, and while living with their mother, Mrs. Ligón, the tenant for life. The judgment at law was for debt and costs de bonis testutoris. The chancellor allowed the executor these costs. He said that it appeared to him that costs incurred in suits relative to the estate ought to be allowed, unless good reason be shown against it.”
    The sixth exception was, “Because the complainant, from his negligence and misconduct in the management of the estate, should be charged with annual rests.” There was no act of wilful mismanagement or culpable neglect proved against the complainant. Every charge against him was allowed upon his own returns to the ordinary, and not a dollar w7as charged to him upon proof aliunde. The complainant appeared to have been actuated by honest motives in every one of his acts as executor. The commissioner overruled the exception, and the chancellor concurred with him. The chancellor observed, “ this question depends on the circumstances. It is sometimes allowed and sometimes refused. The rule in this State is against the allowance of rests and compound interest. The exceptions to the rule depend on the facts of the case. I do not think the exception well founded in this case.”
    The seventh exception was, “That the commissioner charged defendants with interest on the specific legacies.” The commissioner’s report charged the complainant with interest on the funds in his hands from the time he received them, and allowed him interest on the payments made from the time they were paid. Each of the legatees received for the specific legacy of a horse, saddle and bridle, and in lieu thereof, one hundred dollars* in cash. Interest on this payment was allowed from the time it was made, because the executor was charged with the interest on the funds out of which he paid the same. The defendants contended that the commissioner should have calculated interest on the funds in the hands of the executor up to the time the specific legacies were paid, and deducted the legacies from the aggregate of principal and interest. The commissioner overruled the exception, and the chancellor concurred with him.
    The eighth exception was, “ That the commissioner allowed the complainant a credit for the amount of two receipts given by Daniel J. Boacham and Henry Paisley, which receipts were given on erroneous calculation, and on a settlement which had been set aside. The receipts here alluded to were given on the settlement to correct an error in which this bill was filed. The defendants offered to prove by Dr. Watson, who made the calculations upon which the receipt was given, the true amount for which they were given to show the error. The commissioners rejected his evidence because he was a defendant to the suit, though not interested as regarded the receipts. The chancellor sustained this exception.
    The complainant now appealed and moved to reserve so much of the chancellor’s decree as overruled his first, second and third exceptions, and as sustained the defendants’ eighth exception. The defendants also appealed and moved the court of appeals to reverse so much of the chancellor’s decree as sustained the complainant’s exceptions, and overruled those of the defendants.
    
      May 25, 1827.
    O’Neall for the complainant.
    The rule as to allowing commissions is; that executors and administrators are entitled to ten per cent, on all the interest with which they are charged. This rule is in conformity with the principles of the act. Brev. Dig. 336.
    Harper’s Eq. *Rep. 224. It is no objection to this allowance that the executor has not let the money to interest. Equity compels him to make interest on the amount in his hands; and if he fails to do so, he is chargeable with it. If, therefore, he accounts for interest as if he had let it out, it is of equal benefit to the legatees, and the executor is entitled to commissions on the interest. This is the case now before the court. The rule has long been to compute interest on tile annual balance of principal, and the interest account is kept in a separate column and not compounded. The only exception to the rule is where the trustee makes of the fund more than the legal interest, and refuses to account for the profit, or where he neglects to invest the funds as directed by the will. He cited Black v. Blakely, ante, p. 1. Edmunds and Wife v. M’Morris, Harper’s Eq. Rep. 224.
    As to the second ground, the returns must be evidence as well as to charge and discharge. The whole declarations and acknowledgments of a party must be taken together. 1 Phil. Ev. 78, 79. Besides sixteen years had elapsed; and the executor after such a length of time would not be compelled to produce the vouchers. The circumstances supported the truth of the return. The testator owed the debts there stated. The returns were made on oath, and examined, approved, and filed by the ordinary. Greater proof, after such length of time, ought not to be required; the witness being also dead who could have proved the payments. 1 Eq. Cas. Abr. 10. Lapse of time itself was often sufficient presumption of payment. 1 Eq. Cas. Abr. 11. Many of the payments were under forty shillings, and therefore should have been allowed on the executor’s oath. Toll. 492.
    The debts contracted by the widow for necessaries for herself and children were properly paid by the executor. The defendants assented to it by their settlement. The will directed that the should be left in the possession* of the widow for their support; so that the executor was not entitled to the income : and if that fund was wasted, the executor was still bound to provide necessaries for the children.
    Irby, contra. The complainant is not entitled to commissions on interest with which he is charged. The testator died in 1808, and there was no return of the debts due to the estate, nor any account filed before 1810. The executor has rendered no account of the interest on the interest, and he ought to be charged with interest on account of his neglect, and ought not to derive a benefit from it. As to the returns, the admissions against the executor are good, but what he states in avoidance must be proved. 2 Johns. Cha. Rep. 88. The admission of those who settled with the complainant could not bind the others, who were minors. No returns were made by the executor for two years, he is not therefore entitled to commissions. The executor should pay interest with annual rests.
    O’Neall, in reply.
    The executor is not required to make returns where there is nothing in his hands. As to the costs in the case of Neily, he cited Smith v. Goggaus, Hart. Law Rep. 52. Warden v. Burtz, decided January, 1827, at Columbia.
    As to annual rests, it had lately received the attention of this court in the case of Black v. Blakely, ante, p. 1, to which he referred. In the case of Edmunds v. M’Morris, the executors were compelled to account with annual rests, because the bill'directed such an investment of the funds as would have compounded the interest. The principle of these cases does not apply here.
   Curia, per

Nott, J.

This case presents a great variety of questions, both of law and fact, for our consideration.* I have heretofore taken occasion more than once to remark, that the province of this court does not extend to a minute examination of long and complicated accounts. These matters must be left to the commissioner, who, under the supervision of the chancellor, has more ample means of deliberate investigation than is allowed to this court. We can only lay down the rules by which cases ought to be governed, and leave the investigation of the facts where they can be better considered, and m all probability more correctly decided.

The case is brought upon exceptions to the report of the commissioner, and the decree of the chancellor upon them. It appears that upon a settlement with the executor, a certain sum was found to be in his hands, which he was decreed to pay over, with interest upon it. And the first inquiry is, whether he is entitled to commissions on the amount of interest so decreed to be paid. The act of 1789, prescribing the duties of executors, allows them two and a half per cent, on all moneys received, and the same on all moneys paid away in debts, legacies, &c. The same act makes it the duty of executors and administrators to render annual accounts of their administration to the ordinary. And it further provides, that if they neglect to do so, they shall receive no commissions for the management of the estate. The great security which minors have, for moneys in the hands of guardians and executors, is the annual examination and settlement of their accounts by the officer of whom that duty is required. Commissions are allowed only when the duty is performed; and the withholding of them in other cases was undoubtedly intended to ensure a faithful and punctual performance of their duties. It is the business of the court therefore to see that provision of the act rigidly enforced. If the executor in this case has fulfilled his duty, according to the requisitions of the act, he is entitled to the compensation which the law allows; that *is, two and a half per cent, on all the moneys which he shall finally pay over to the distributees : and although a part may consist of interest, he will be entitled to commissions on the aggregate amount. If the money had been placed out at interest, he would have been entitled to commissions upon paying it away : and whether he places it in the hands of others, or keeps it in his own, cannot be material to those to whom it is to be paid.

But it is to be contended that the executor is entitled to ten per cent, on the interest so paid over. When an executor lets out money upon interest and receives it in annually, and re-invests it again for the benefit of the estate, and makes it thus an accumulating fund until it is paid over, he is entitled to ten per cent, for his management: and when he suffers it to accumulate in his own hands in the same way, he will be entitled to the same compensation ; but not when he is decreed to pay it over, at the close of his administration, on moneys retained by him.

The next question is, whether, when the return of the executor to the ordinary is the only evidence of the amount of moneys received by him, it shall also be received as evidence in his favor of the disbursements of the same. The only evidence which the parties interested in an estate can usually offer, of the amount to be administered, is the inventory returned by the executor: and being his own act, it must be conclusive against himself. And it is incumbent on him to show, by satisfactory evidence and vouchers, in what manner it has been administered. Those vouchers he ought to keep as his security ; and the ordinary ought not to allow his accounts, when the vouchers are not produced, nor their absence accounted for. And it ought to appear on the face of the settlement, what was the nature of the evidence on which the return was accepted and allowed. And although the evidence with the ordinary is not conclusive,* perse, in favor of an executor, it ought to be received for as much as it is worth ; and its value must depend upon a variety of circumstances : the regularity of the accounts, the death of witnesses, loss of vouchers, and the lapse of time, must all be taken into consideration.

In this case, sixteen years have elapsed since the account was settled and allowed by the ordinary. It is not to be presumed that he suffered it to pass, without satisfactory evidence that it was correct. I think, therefore, that it ought to have been allowed by the commissioner, Executors are not less liable to loss of papers, by lime and accident, than other persons. The settlement with the ordinary is intended as a security for the executor, as well as for the distributees; and, after a lapse of sixteen years, ought to be a complete protection. It will nevertheless be subject to impeachment by the other side. If the defendants’ case show' any error or fraud in the transaction, they are entitled to the benefit of it: but the burthen of proof must lie upon them.

The third exception is, that the commissioner has charged the executor with a certain sum due the estate by Reuben Ligón, when in fact it was due to Ligón by the estate. It appears, by the return of the executor himself, to be due to the estate; and, therefore, must be taken as evidence against him. He may be permitted to show that it was charged by mistake; but the proof must lie upon himself; and without such proof he must be bound by his return.

These observations embrace all the exceptions taken to the decree on the part of the complainant.

There are several exceptions on the part of the defendants which it is also necessary to consider.

The first exception is, that the executor ought to have been charged with the price of a negro sold for the payment of debts and also for his hire; when, as it *alleged, he had other funds in his hands at the time, and had no permission from the ordinary to make the sale. There is no doubt but that an executor ought not to sell the property of the estate for the payment of debts, when he has sufficient funds in his hands for that purpose; nor even when he has not, without the permission of the ordinary. But it does not appear in this case that he had other funds; and in any event he is only liable for the value of the property with the interest upon it; and with that he is charged.

The second exception is, because the complainant ought to be charged with the property of the estate sold by Robert Ligón, &c.

By the will it appears that the widow was entitled to the possession of the whole estate, both real and personal, during her widowhood, for the support of herself and family. If she married, the executor was required to allow her what he thought would be sufficient for her support; and in other respects all the provisions of the will remained unaltered. The widow married Reuben Ligón, and it became a question of some difficulty to determine, in what manner the provisions of the will, that event having taken place, could be best carried into effect. The widow was entitled to a support out of the property, and the remainder was to be kept together for the maintenance and education of the children. The children could not be separated from their mother, and the executor was obliged probably to employ some person to superintend the plantation and negroes, and if he thought proper to make the husband his agent for that purpose, it appears to me it was perfectly within the scope of his duty. The husband died, leaving a crop on hand, and it appears that his administrator received and applied the proceeds of it to the benefit of his estate. It appears also that Ligón, in his lifetime, sold some small articles belonging to the estate *of Wright, and that he incurred some expenses for the plantation and for the support of the children, which the complainant allowed, and now makes a charge against the estate of his testator.

With regard to the crop, it unquestionably belonged to the estate of Wright, and ought not to have gone into the hands of the administrator of Ligón. Ligón had no right to receive the proceeds of the estate except for the support of the family, and being the agent of Wright, he must be liable for his acts. He ought not to have suffered the crop to have gone into the hands of Ligon’s administrator, and must, therefore, be liable for the amount, except what was necessary for the support of the widow and family. He will be equally liable for the property sold or otherwise disposed of by Ligón in his lifetime, and for moneys received by him belonging to the estate. This charge, however, will be subject to any disbursement made by him for the use of the estate or necessary advances for the family. But with regard to advances either by the husband or -wife, and debts contracted by them for the benefit of the estate, or the support and education of the children, it may be remarked, that an executor has no right to exceed the income of the estate, for any of those objects without leave of the court of equity. Where the income is found to be insufficient, it is his duty to apply to the court to make such further provision out of the estate as may appear necessary for that purpose. And any advances made without such authority must be at bis own risk and upon his own responsiblity. If, however, an executor does undertake to act without such permission, and upon examination it shall appear that there was a necessity for such an expenditure, and that the money has been prudently laid out, it will be allowed. But it is only on the ground of necessity that such an allowance ought to be mac^e) *be existence of which it will be incumbent on *him to show, and of which it belongs to the chancellor to judge; if such necessity existed in this case then the charge was properly allowed.

The third exception relates to the allowance of commissions to the defendant, where regular annual returns of his administration have not been made. With regard to the general rule on that subject, I have nothing to add to the observations which have already been made. But I understand that the construction which has hitherto been given to the act by the court of equity is, that commissions ought to be allowed for those years in which the executor has rendered in an account of his administration, although he may have omitted some years. The correctness of that construction, however, is perhaps questionable. But as I have no doubt that it was adopted upon due consideration, and has been found convenient in practice, until it has now become a settled rule of the court, I am not disposed to innovate upon it. But it must be received with some qualifications. If an executor shall omit to settle his accounts for several years and then make a return for that whole period, he will only be entitled to commissions for the year in which his account is rendered; and the allowance must not be made to embrace those years in which no returns have been made. And unless his accounts are so made out that the transactions of each year may be distinctly ascertained, no commissions ought to be allowed.

The fourth exception has been considered in the observations which I have already made. With regard to the fifth, I have nothing to add to the views taken by the chancellor.

The question of compound interest made in the sixth exception does not appear to have received that consideration in this State to which it is entitled. It would seem, from the early chancery cases, that an executor was not held liable even for simple interest on mon-eys in his *hands, in any cases whatever. In the case of Lynch v. Cappy, 2 Cha. Ca. 35, an executor was held not liable

for interest on the testator’s estate, although he had made interest of it. And in the case of Adams v. Gale, 2 Atk. 106, Lord Hardwicke recognizes the right of an executor to let out money on his own account, without being liable for the payment of interest. The case of Ratcliffe v. Greaves et al. 1 Vern. 196, is the first which I have found where interest was allowed in the English courts. But there the executor had employed a part of the money in trade, in which he had made a profit, and on a part he had received interest; and it was in those special circumstances that the interest was allowed. But it was not attempted to obtain more than simple interest, and even that it was said, was contrary to the practice for twenty years; and that there were more than forty precedents against it. So when money is out at interest, and unnecessarily called m by the executor, it was held that he should pay interest. Taylor v. Gerst, Mosely, 99. So in the case of Newton v. Bennet, 1 Bro. Cha. Ca. 361, Lord Thurlow held, that where an executor had employed the funds of the estate in trade, he should pay interest on it; but even then his lordship said, he would not say that he was bound to pay interest on the ground of having called in a debt which bore interest. In the case of Darrel v. Eden and wife, 3 Desaus. Rep. 241, Chancellor DeSaussure mentions the case of Stork v. Blake, where the court refused to decree interest against an executor. Of late years, however, a more reasonable and correct rule has prevailed; interest is required of an executor in most cases where money has been unnecessarily retained, or for an unreasonable time. But the allowance of compound interest seems to be an invention of modern date. The first case, and indeed the only case where I can find that it has been allowed in this State, is the case of Bowles and wife v. *Drayton, 1 Desaus. Rep. 489. But in that case the testator had bequeathed a certain sum to his daughter, and directed the interest to be annually applied for maintenance and education. There the court required interest to be paid on the interest; because by the express provisions of the will the interest was required to be paid annually for her benefit. But in the case of Darrel v. Eden and wife, 3 Desaus. Rep. 243, where the master had calculated compound interest, Chancellor DeSaussure seemed to think it a doubtful question whether any interest should be allowed : upon consulting the master, however, and finding that such had been the practice of the court for some time past, he suffered it to pass. But he reversed the master’s report, which allowed semi-annual rests, and directed the interest account to be kept in a separate column, so that compound interest should not be allowed. And, in the case now under consideration, the same learned chancellor says the rule in this State is against allowing rests and compound interest. And in the case of Meyers v. Meyers, (post) Chancellor Thompson says, he never did allow it, and never will, under any circumstances. We are, therefore, certainly not authorized bv precedent to lay it down as a general rule in this State, that interest shall be calculated with annual rests on moneys in the hands of executors. I differ, however, with ¡chancellor Thompson in opinion, that it ought not to be allowed in any case.

There are cases where common justice requires it: and where great injustice would otherwise be done. And the only difficulty is in drawing with precision the line of distinction between those cases to which the rule shall or shall not be applied. In the case of Raphael v. Boehm, 11 Ves. 92, which veas decided in 1805, Lord Eldon speaks of it as a question of great difficulty, and refused to decide it until he had consulted several masters* on the subject. His lordship ultimately allowed it; but it was upon the ground that the tes- L " tator had expressly directed the money so to be placed out as that the interest should accumulate, and that the executor had kept it against the express directions of the will. But he says, “it has been the habit of the court to give it.”

The same case afterwards came before Lord Chancellor Erskine, on a re-hearing, who affirmed the decree, remarking that “the duty of the executor did not depend upon the general rule, as it relates generally to administration of assets, but upon the special rule required by this particular will.” 12 Ves. 411. The same rule is laid down in Schieffelin v. Stewart, 1 Johns. Cha. Rep. 626. And I have understood that in a late case of Edmunds v. M’Morris, in the court of equity of this State, Harper’s Eq. Rep. 224, where the executors neglected to vest the proceeds of the estate in stock, to accumulate for the benefit of the distributees, according to the directions of the will, it was decreed that interest should be calculated with annual rests.

I take it, therefore, that there is no such general rule as that an executor shall be required to pay compound interest on the balances which may be found in his hands. And even if we had found such a rule more prevalent in England, where money may always be promptly vested in stock, or some other productive fund, yet it would be impracticable in this State, where people are not in the habit of dealing in stock, and indeed where it is only rarely to be purchased. Debts due estates are generally collected in slowly, and in small sums. Moneys cannot always be let out promptly, much less safely, at interest: and simple interest is usually more than can be realized with the utmost diligence.

The exceptions to the rule, some of which I have noticed, seem to where the will itself directs money to *be laid out, in a particular way, as an accumulating fund; or where the executor unnecessarily calls in money which is out at interest and accumulating, or employs it in trade, or in some other manner, and refuses or neglects to account for the property. In these, and such like cases, it is right and proper that annual rests should be made. The cases are numerous, and the principle too familiar to require authority that a trustee shall not make a profit to himself by the trust estate. All moneys received, laid out, or employed in any manner, or property purchased with the funds of the estate, shall enure to the benefit of the cestui que trust. But all these cases come within the principle of those which I have been considering; and must be determined by the same rules. They may sometimes seem to operate harshly, but then it is the fault of the party himself upon whom the hardship falls, because he may always avoid the difficulty by keeping regular accounts. And a person has no right to complain who suffers in consequence of his own neglect. There do not appear to be any circumstances connected with the transactions of this executor to render him an exception to the general rule. I am therefore satisfied with the opinion of the chancellor on this point.

As to the sixth exception, the rule which the commissioner has adopted for the calculation of interest is certainly an erroneous one; though I believe it is the method usually adopted by the commissioners throughout the State : and I believe we have suffered some cases to pass where the accounts have been made up in that way without requiring them to be corrected. The rule for calculating interest, which has always prevailed in this Slate until a contrary practice has somehow found its way into the court of equity, will be found in the case of John Black et al. v. John Blakely and wife, ante, p. 1, which was decided by the court at its last sitting. The *rule has universally prevailed in the courts of Jaw, and I cannot conceive upon what principle a different practice has been allowed in the court of equity. Certainly no good reason can be given why different rules should prevail in the two courts. This exception must therefore be allowed ; and the interest must be calculated according to the rule laid down in the case aboved alluded to.

The complainant was certainly entitled to credit for the amount of the receipts which are the subject of the seventh conception. The defendants nevertheless ought to have been permitted to show that a mistake had been made in the calculation, and to have it corrected if any such could be made to appear.

I do not perceive that the witness whose testimony was rejected had any such interest in the question as to render him incompetent. One defendant may be a witness for or against another in equity, where his interest is not to be affected by his testimony. I am of opinion, therefore, that the testimony ought to have been received.

*1 have now gone through with the exceptions on both sides, and expressed my opinion of the principles on which they ought to be decided, without giving any opinion as to the decree of the chancellor, which has been pronounced upon them. The commissioner acknowledges that he made up his report in such haste, that he had not time to state the evidence and the reasons on which his opinion was founded. The chancellor also acknowledges that he was not sufficiently informed to enable him to decide with satisfaction to himself. I think the commissioner did wrong to make a report until he had time to do it in such a manner as to enable the chancellor to decide, understandingly, the several questions submitted to his consideration. And I think the chancellor would have done better to have sent the case back to tile commissioner, with directions to give such further exposition of the facts as would enable him to decide with more satisfaction to himself. For it is very apparent that the case has been presented to this court in such a way as to give us a very imperfect view of its merits.

The case must therefore go back to the commissioner, in order that the accounts may be settled according to the principles above laid down, and it is ordered accordingly.

Case sent back to the commissioner. 
      
      
         The English rule is this, where the executor comes before the master on a reference of accounts: u In taking an account of a testator’s personal estate, come to the hands of his executors, the decree directs that in taking the accounts the master shall distinguish what is principal and what is interest thereof; if the executors should not have made such a distinction in their accounts, it must be calculated and ascertained in the charge; and the principal and interest must be distinguished and ascertained. All moneys which became due in the lifetime of the testator, and which remained owing to him at his death, although part thereof might have been interest on his mortgages or other securities, must be considered as principal money; the interest to be ascertained pursuant to the decree, being such only as hath accrued due on the mortgages and other securities, and on the testator’s personal estate, put out to interest by his executors since his death. 2 Fowler’s Proceedings in Equity, 280. In the same work, which contains the exchequer practice on the equity side, there is a full account of the manner in which receivers are to keep their accounts and make their annual report to the master. 2 Fowler, 379.
     