
    *Strother & als. v. Hull & als.
    June Term, 1873,
    Wytheville.
    Absent — Moncuke, P., ana Staples, J.
    1. Property oí Testator Used by Administrator-Destroyed — Liability of Administrator. — An administrator c. t. a. lives in the dwelling' bouse of Ms testator, and a part of the furniture is retained and used by him, until it is consumed by fire with the house. Though he had with him the younger children of the testator, for whose board he was paid, the furniture must be considered as having been talren as his own, and he must account for its value.
    2. Will — Construction—Case at Bar. — In 1851 H dies, leaving several infant children, and a considerable estate, real and personal. He directs by his will, that on the marriage of his eldest daughter Ann, she shall have possession of the home place, if she will keep the younger children with her, and take good care of them; and this she does. He directs his executor to manage his estate until 1st January, 1861, when it is all to be divided equally among his children. S, the husband of Ann, becomes adm’r c. t. a., takes possession of tlie estate, and does not invest tlie money, nor does lie settle his administration account. Help:
    1. Same — Same—Same;—Ann and her husband were entitled to the home place free of rent, and to he paid a reasonable hoard for the younger children whilst they lived with them.
    2. Administrator — Guardian — Compound Interest.— The accounts of S, as administrator c. t. a., up to January 1st, 1861, are to he settled as guardian’s accounts, and the interest to he compounded; and his sureties are responsible for the amount so found against him up to that time.
    *3- Same — Same—Same —Though S is responsible after the 1st of January, 1861, for compound interest upon the shares of such of the children as he continued to act for as guardian defacto, his sureties are not so chargeable.
    4. Same — Unsettled Accounts — Commissions.—S not having settled his accounts as adm’r, and showing no sufficient reason for his failure to do so. is not to be allowed commissions, except upon receipts after January 1st, 1860.
    3. Same — Sale of Land as Commissioner. — Prior to January 1st, 1861, land left to two of the sons, who were to account for the same in the division, was sold under a decree of the court, by S as commissioner, and he was decreed to hold the proceeds as part of the assets of his testator’s estate. His official bond, in fact, covered only the personal assets.
    Held:
    1. Same — Same—Administration Account. — The proceeds of the sale of the land were not in his hands as adm’r c. t. a., and should not he brought into his administration account.
    2. Same — Same—Liability of Sureties. — But in no case are the sureties responsible for them, as their bond did not cover the real estate.
    3. Same — Same—Commissions.—S is entitled to his commissions as commissioner on the proceeds of this sale, viz: five per cent, on the first $300, and two per cent, on the balance.
    4. Same — Same—Settlement of Accounts. — Xnsettling his account as to the proceeds of this land, the mode stated in Humphreys' adm’r & ah. v. Garter t& als., is to be pursued.
    4. Bill in Equity — No Damages Claimed — Liability of Administrator. — The bill by the devisees not claiming damages for injury done to the fences and building on the land, S cannot be subjected to the payment of such, either in his account as adm’r or with the devisee.
    5. Amount Due Deceased Child Bears Interest from Her Death. — One of the children having died in 1862, the amount found due to her by the administrator, should bear interest from the date of her death.
    
      6. Errors — Correctable in Lower Court — Appellate Practice. — The interest of the deceased child is divided, and the share of each of the survivors is credited to them in their accounts with the administrator. The final decree, after giving to each the amount reported by the commissioner, gives each a further decree for his and her share of the estate of the deceased child. This is an error, which might have ’been corrected by motion to the Circuit court, under the statute, Code, ch. 181, § 5, p. 743; and this court would, therefore, dismiss the appeal, or correct and affirm it, with costs, to the appellees, if there was no other error.
    This was a suit in equity instituted in July, 1866, in the Circuit court of the county of Smyth, and afterwards transferred to the Circuit court of the county of Tazewell, by D. D. Hull and six others, children o'f Thomas T. Hull, deceased, against Wade D. Strother, adm’r de bonis non with the will annexed of said Thomas T. Hull, and his sureties, for a settlement of his accounts, and the distribution of the estate.
    Thomas T. Hull died in 1854, having made his will, which was duly admitted to probate in the County court of Smyth. He left eight children, all of them infants under the age of twenty-one years.
    By the 1st item of his will he directed that all his personal estate should be immediately sold, except so much as in the opinion of his executor will be necessary for the immediate use of his children in general, and except, also, such things as in his opinion will be expedient for either of my oldest children to keep at appraisement price. And out of the money arising from said sale, all his debts and funeral expenses were to be paid.
    By s. 2, he says: My home farm, that is, the land I bought of Blessing, and the poor-house tract, be kept and used for the-benefit of raising my children, so far as my executor may think practicable, and so long as they may be kept together on said farm. I hope my aunt, *Mrs. Denton, will remain with my family, and be to them as she has been to me, a mother.
    It is further my will that so soon as my daughter, Ann, shall marry, she shall have the use and benefit of my said home farm, by her taking special care of the younger portion of the family as members of her family, unless my executor shall see fit, in his discretion, to charge more for said land, and whenever he shall see fit to remove them for their benefit to school; then I wish the said farm so managed as he may think best for the benefit of my children up to the 1st of January, 1861, then I desire that my daughter, Ann, shall have my said home farm, if she is living at that time.
    By the 3d and 4th clauses of the will he directs certain lands therein mentioned shall be used in the discretion of his executor, for the benefit of all his children, until the 1st of January, 1861. And then he gives that mentioned in the 3d clause to his daughter Nancy Jane, and that mentioned in the 4th clause, called the Miller and Kesner lands, to his two sons, David and John. And as he was sued for the Miller farm, he directs, if that is lost, David shall have the Kesner farm. His other real estate he directs to be sold immediately after his death.
    By the 8th clause of his will he desires all his children to be liberally educated and equallj’- at the expense of his estate.
    Item 9. I desire that on the 1st of January, 1861, all my effects, lands, property, money, &c., be valued, and all my children be made equal. Those receiving property amounting to more than their shares will then refund, as all shall be equal in my estate,' as they are all equal in my regard.
    In the 10th clause, after directing that if one of his children to whom he has devised lands, shall die before *the 1st of January, 1861, the same shall be assigned to some other of his surviving children, he adds: I authorize the County court of Smyth to appoint three valuers and commissioners to value and divide my estate aforesaid, so as to make my children equal; and I empower them, in the event contemplated in this clause, to decide to whom of my surviving children the lands shall be assigned.
    And by the 16th clause, his executor was authorized to loan at interest any funds of his estate till necessary for distribution.
    James W. Sheffey was appointed executor of the will, and he qualified and continued to act as such until 1854, when Wade D. Strother having married Ann, the eldest daughter of the testator,. Sheffey procured himself to be removed, and Strother qualified as administrator de bonis non with the will annexed, giving a bond which only covered the personal estate; and he received from Sheffey all the assets in his hands, amounting in notes to a little upwards of $12,000, and in property appraised at $500.55. ■
    Upon the marriage of Strother with Ann, the eldest daughter of Thomas T. .Hull, they took up their residence at the home farm, mentioned in the second clause of the testator’s will,- and took charge of the younger children, who were kept with them, and were cared for by them in the manner contemplated by their father.
    In March 1860 David D. Hull, being then over the age of twenty-one years, filed his bill in the Circuit court of Smyth county, against John N. Hull, then an infant, and the other devisees of Thomas T. Hull, asking the court to decree a sale of the land devised to himself and John N. Hull; and in April 1860 the court made a decree appointing Wade D. Strother to sell the "same, upon the terms of one-half of the purchase money to be paid on the 1st of January 1861, and the other half on a credit until the 12th of January 1864, with interest payable semi-annually; when John N. would have arrived at the age of twenty-one years. In September the commissioner reported he had sold the land on the terms of the decree to Robert Goolsby for $12,200: and in the same month the court confirmed the sale, and directed Strother to collect the first bond of Goolsby and hold the proceeds thereof, after defraying the expenses of sale, as assets in his hands as the adni’r de bonis non of Thomas T. Hull, deceased; and upon the receipt of this money to convey the land to Goolsby with special warranty, reserving a lien on the land for the payment of the second bond. And this was the last order made in the cause, except to continue it on the docket.
    In September 1860 the County court of Smyth, in pursuance of the 9th and 10th clauses of T. T. Hull’s will, appointed John M. Preston and two others, valuers and commissioners to value and divide according to the provisions of the will, his estate real and personal on the 1st day of January 1861, taking the balance which should be found due in the hands of Strother, as administrator of T. T. Hull, into the calculation, as it should be exhibited upon his settlement, which a commissioner of the court was directed to make.
    The account of the administrator not having been settled, the commissioners proceeded to value the land devised to each of the children, except that devised to David D. and John N. Hull, and returned their report to the court.
    In March 1867, Strother filed his answer in this cause; and the court made a decree directing Joseph *W. Caldwell to settle the administration account of Strother. And in August 1867 another order was made directing Strother to deliver possession of the land devised to the testator’s daughter Nannie, to her and her husband John B. Smith. After Nannie J. Hull, came of age she contracted in April 1861 to sell a part of the land devised to her, to W. D. Strother, for the sum she would have to acount for to the estate of her father, with interest thereon from the 1st of January preceding. She married in November 1861, and afterwards Strother rescinded the contract with her husband John B. Smith, and delivered to him the agreement: but the land still remained in his possession.
    In March, 1868, the commissioner returned his report. He brought down the administration account to January 1st, 1861, and in it he charged the administrator with rents of the land devised to the children, including the home place left to his wife Ann; and also for waste of fences and buildings $133.25, and for furniture unap-praised, which was retained in his house, and was destroyed when his house was burned, $230, and stated the account as a guardian’s account, compounding the interest; and the administrator not having settled his accounts as required by the statute, he allowed him no commissions; and he reported a balance due from the administrator of $14,525.
    On the 1st of January, 1861, he brought together the whole estate, charging the land of David and John, sold to Goolsby, at $12,200, and the other lands at the prices fixed upon them by Preston, &c. ; and he then credited him with the price of the land devised to his wife and Mrs. Smith, with $4,000 paid to D. P. Hull, by his order on Goolsby, and $6,100 to John N. Hull’s guardian, note of Goolsby, and he reported the balance due from ^Strother $16,625. The commissioner then stated an account with each of the children. One of them, Mary C. Hull, had died in January, 1862; and ascertaining the amount due to her at that date, to be $5,250, he divides this sum among the surviving children, to each $750; and he brings this sum into their several accounts, and charges the administrator with it, and with interest thereon from the date of her death. In the account with Smith and wife, he charges Strother with the rent of her land during the whole period from January, 1861, including the time he held it under his purchase from Mrs. Smith; and he charges him also with $235.63, amount estimated for waste of fences on this land since 1860. These individual accounts seem to be settled on the principle applicable to the accounts of executors and administrators, as to the interest; except that of Henry B. Hull, who was a minor when the suit was brought, in which the interest is compounded.
    The defendants filed fifteen exceptions to the commissioner’s report. The first was to the charge of $230,- for furniture unap-praised. This furniture remained in the house and was used by the defendant, and was consumed when the house was burned. In his answer he admitted he should be charged with it. The fifth exception was to the charges, $133.25, for waste of fences and buildings, on the ground that nothing of this sort is claimed by the bill, or justified by the decree for the account. The eighth exception is to the disallowance of commissions. The tenth is to the charge of rent of Nannie J. Hull’s land, -whilst he held and claimed the same as purchaser. The eleventh is to the charge of $235.63 as damages to the said land, on the same grounds stated in the fifth exception. The thirteenth and fourteenth exceptions were to scaling payments made to merchants for goods furnished to four of the children, on the ground *that they were bought at the old prices; though they were paid for with Confederate currency.
    The plaintiffs also filed exceptions to the report. First. Because the charge of $230 for unappraised furniture is too small, being less than testified to by the witnesses. Fifth : Because he has allowed the administrator for board for the younger members of the Hull family, prior to 1861, and has charged him with rents of the home farm, contrary to the provisions of the will.
    The cause came on to be heard on the 31st of March, 1871, when the court sustained the fifth, eighth, tenth and eleventh exceptions of the defendants, and overruled all the rest, and also all the exceptions of the plaintiffs, and recommitted the report to the commissioner, with instructions to disallow the charges mentioned in the fifth and tenth exceptions, and the charge for rent upon Mrs. Smith’s land after the 1st of January, 1861; and allow any other charges against Smith and wife that the administrator might prove; and to allow five per cent, commissions on his disbursements. And the cause was transferred to the Circuit court of Tazewell county.
    The commissioner having returned his report, to which there was no exception, at the May term of the Circuit court of Taze-well county, Strother presented a petition, in which he asked that the previous decree might be opened, upon the ground, among others, that he should not be charged with compound interest, because that from the condition of the country from 1861 it was impossible for any fiduciary to have collected and reinvested money safely.
    The cause came on to be finally heard on the 9th of May, 1871, when the court refused to allow the petition of Strother, and confirmed the report; and made a decree in favour of Strother against Smith and wife, and John N. Hull, for the balances reported against them ^'respectively ; and against him and his sureties in favour of D. D. Hull, Filen V. Hull, Pauline A. Hull and Henry B. Hull, for the amounts reported to be due them respectively ; and in addition decreed in favour of all the plaintiffs respectively, each for the sum of $735.42 6-7, with interest thereon from the 1st of January, 1862, that being the share of each in the estate of Mary C. Hull, deceased. And from this decree Strother and his sureties applied to this court for an appeal; which was allowed.
    J. W. Johnston, John A. Campbell and Strother, for the appellants.
    Gilmore, for the appellee.
    
      
       Administrators — Liability of Sureties. — See footnote to Murphy v. Carter. 23 Gratt. 477.
    
    
      
      Fiduciaries — Commissions.—As to when a fiduciary is entitled to his commission, see the principal case cited in Moses v. Hart, 25 Gratt. 795, and footnote; Crigler v. Alexander, 33 Gratt. 674, and footnote; Trevelyan v. Lofft, 83 Va. 148, 1 S. E. Rep. 901; Robertson v. Gillenwaters, 85 Va. 119, 7 S. E. Rep. 873; Hescht v. Calvert, 32 W. Va. 231. 9 S. E. Rep. 94.
    
    
      
       Errors — Correctable in Lower Court — Appellate Practice. — As to what will he done in the appellate court concerning errors which might have been corrected in the court below, see Tyree v. Donnally, 9 Gratt. 67; Lewis v. Arnold, 13 Gratt. 465; Gunn v. Turner, 21 Gratt. 385; Dickinson v. Clement, 87 Va. 41, 12 S. E. Rep. 105; Flynn v. Jackson, 93 Va. 345, 25 S. E. Rep. 1.
    
   BOUHDIN, J.,

delivered the opinion of the court.

We will consider the questions arising in this case, in the order in which they have been presented: noticing, first, the errors assigned in the petition for an appeal; secondly, those assigned in the appellant’s brief; and lastly, the errors assigned by the appellees.

The first, second and fifth errors relied on in the petition for appeal, have been waived by the appellants, and need not, therefore, be further considered.

The subject of the third assignment of errors is the charge against the appellant Strother of $230, being the estimated value of certain household furniture belonging to his decedent’s estate, which was retained by him j:o his own use, without sale or ap-praisement. We think there was no error in this charge. It is certainly true that this property, or the greater part thereof, was destroyed in the year when the appellant Strother’s house was consumed by fire; but it is also true that when destroyed, it must in law be considered to have been Strother’s property. It had been held and used by him *down to that time, for his own use and benefit, as part of the furniture of his house, and not for the benefit of his testator’s estate. True, a portion of the family of the testator lived with him as members of his family; but they lived with him as regular boarders, were charged as such, with a fair and reasonable board; and certainly should not, when thus paying board, be expected to aid in furnishing the house. Besides, the appellant Strother himself, admits in his answer that he is responsible for the value of that furniture; that it is properly chargeable to him; and the real controversy in the court below, was not as to his liability, but as to the amount and value of the furniture. To that point chiefly were the proofs in the court below directed, and the value was fixed by the commissioner at $230. This sum is less than the estimated value of the property by the testimony in the cause, except that of Strother himself, and about fifty dollars less than its appraised value when retained by Mr. ShefEey, the executor, as appears from the appraisement. Under such circumstances we cannot regard the charge as excessive; and the .exception thereto was properly overruled.

The fourth error assigned is, that it was improper and illegal to charge the appellant Strother with compound interest in the various accounts: That he was acting as personal representative of the testator Hull, and there was ho reason in this case to depart from the usual and well established principle on which such accounts are stated.

There can be no doubt, as a general rule, that executors and administrators are not to be charged with compound interest; but it is as well established that this general rule will be modified when required by the nature of the trust or the express terms of the will. When the beneficiaries are minors, and accumulation for their ^benefit is the ruling intention of the will, compound interest will be charged, whether the fiduciary be an executor or guardian. He will be treated as having done what it was his duty to do, and his accounts will be settled as a guardian’s accounts. Garrett, ex’or, v. Carr & wife, &c., 1 Rob. R. 196; same case, 3 Heigh 407. In that case, 1 Rob. 213, Judge Allen referring to the case of Raphael v. Boehm, 11 Ves. R. 82, said, “the direction was to take an'account against the executor (who was a trustee) with a computation of interest on all sums received by him, while in his hands'; and that the master do in such computation make half-yearly rests. The object of the direction was to charge compound interest. Eord Eldon remarks in that case, that ‘where there is an express trust to make improvement of the money, if he will not honestly endeavor to improve it, there is nothing wrong in considering that he has lent the money to himself, upon the same terms upon which he could have lent it to others; and as often as he ought to have lent it, if it be principal, and as often as he ought to have received it and lent to others, if the demand be interest, and interest upon interest.’ And in another place, ‘the court would shamefully desert its duty to infants by adopting a rule that an executor might keep money in his hands without being answerable as if he had accumulated.” And Judge Allen goes on to say: ‘ ‘These remarks apply with great force to the case under consideration, where the estate was considerable, the wards young, and accumulation for their benefit the governing intention of the will.” This language of Judge Allen will apply with singular pertinency to the case before us, “where the estate was considerable, the wards, or beneficiaries, young, and accumulation for their benefit is the governing intention of the will.” The learned judge then cites a decision of Chancellor Kent, 1 John *Ch. R. 620, “who there held that if an executor convert trust moneys to his own use, or employs them in his business or trade, he is chargeable with compound interest.”

We think there is no material difference between the will in this case, and that in the case of Garvett v. Carr: that under each alike, it "was the duty of the executors to improve the estate; accumulation for the benefit of minors being the “governing intention of the will;” and that compound interest was properly charged in this case down to the 1st of January 1861; to which period the executor, as such, wds required by the terms of the will, to keep the estate together for the common benefit of the testator’s children. Down to that date the account of the appellant, as administrator, was property stated on the principle of the guardian’s account. His account as administrator should have been then closed, and his indebtedness as such to each legatee ascertained; and for the amounts thus ascertained, with simple interest only, ought his sureties as administrator to be held responsible, subject to such payments as may appear to have been thereafter made by him. But as the administrator continued to act as guardian de facto of a portion of the testator’s children, without any actual settlement of his account as administrator, he should be individually charged in his accounts with such children, with compound interest in each case until the determination of the assumed guardianship.

It is unnecessary to notice the sixth assignment of error. .

The objection to the decree of the court set forth in the seventh assignment of error is obviously well founded. The court in entering the final decree, after giving to each child all he was entitled to under the accounts as corrected and approved by the court, inadvertently *added to each the sum of $735.42 6-7 cents, being amount of each distributive share on Mary C. Hull’s estate, already included in the several accounts. This error is obvious on the face of the decree, and is conceded by. the appellees’ counsel; but it is contended that the mistake is one which could have been corrected in the court below by motion, under the Sth section of ch. 181, of the Code, p. 743; and therefore, that it is not the subject of an appeal. It is clearly an error coming' within the purview of that statute; and were it the only error, this court would either dismiss the appeal as improvidently awarded, or correct and affirm the decree, with costs to the appellees. But as it will appear in the sequel, that there are other errors in the record, for the correction of which it will be necesgary to send the case back to the court below, it is proper that this error should be noticed.

We come now to the errors assigned in the appellant’s brief; the first of which is, that Mary C. Hull, one of the legatees, died a minor, and that the personal representative was not before the court. It was certainly irregular to proceed to the distribution of the estate of Mary C. Hulldec’d, although she died a minor, intestate and unmarried, without bringing her personal representative before the court; but in this case that would have been the merest matter of form. All the parties beneficially interested in the estate -were before the court; and as it was not pretended that there were outstanding debts to collect or to pay, other than the estate in the hands of the appellant Strother, it was certainly more simple and less expensive to proceed, as has been done in this case, and no one could possibly be injured thereby. The court, therefore, would not, if no other error existed, reverse and send back the cause for this mere error of form relied on in this court for the first *time; but as the case will, for other reasons, be sent back to the Circuit court, the personal representative of Mary C. Hull will be there made a party, if insisted on by the appellant Strother.

The court is further of opinion, that it was error to charge the appellant Strother with the rents of the home place. It is very obvious from the testator’s will, that it was his ruling interest and earnest wish that his younger children should be reared and trained under home influences : and to effect that object he provided that his eldest daughter, so soon as she should ma.rry, should have the use of his home farm on condition of “her taking special care of the family, as members of her family.” We understand by this, that the testator merely intended that the eldest daughter should extend to her younger brothers and sisters, as members of her own family, the affectionate care and training of a mother; that so far as she was able she was to be a mother to them. He certainly did not intend, could not have intended, that this labor of love imposed on his daughter, should be a grave pecuniary burden on her future husband; and thus have a tendency to defeat his cherished wishes. On the contrary, he plainly and providently intended to make it to the interest of his future son-in-law, to gratify this natural desire of an affectionate parent, by departing in that particular instance, from the general scheme of his will, and making to his eldest daughter, immediately on her marriage, a liberal advancement on the condition named. The advancement made was appropriate to the testator’s purpose. The eldest daughter was to have on her marriage the home place, there to keep around her the younger members of the family, and in a home circle to extend to them the tender and affectionate care of an elder sister; second only to the watchful solicitude of a mother’s love.

This priceless *boon the testator designed to secure to his orphan children, not by imposing on his future son-in-law a heavy pecuniary burden which would certainly tend to defeat his object; but through his wife to confer on him, a substantial benefit. That he regarded it a decided benefit is evident from the discretion vested in his executor to terminate the arrangement whenever he might think it proper to charge more for the farm. Such a provision would have been simply absurd, had the testator already provided in his will, that his son-in-law, by boarding his family of children, should really pay about double the annual value of the farm; for such the board of the children has been proved to be. The testator, provident and affectionate as he appears to have been, certainly never intended that all the anxieties of the mother of a large family should be cast upon his young daughter, and about one-half the expense of subsisting his children should be imposed on his son-in-law, without the aid of one cent from his estate. Yet such would be the practical result of the construction contended for by the ap-pellees; the cost of boarding being about double the value of the farm. Our opinion is, that the home place was to be an advance to the testator’s eldest daughter on her marriage, free of charge, on condition that she should extend to her younger brothers and sisters the affectionate care of an elder sister as members of her family, at her own home, where they were in other respects to be supported by the estate. It has not been attempted to be shown by the testimony, nor has it been suggested in argument, that she failed in any respect, in the performance of this duty; on the contrary, it has been abundantly shown that the grave responsibility thus early cast upon her, was bravely met, and the sacred trust faithfully performed.

*We think, therefore, that it was error to charge the appellant Strother with rent for the home place.

It was error also to blend that portion of the proceeds of the Miller and Kesner lands, not paid over to D. D. and John Hull, with the general assets of the estate. These lands were specifically devised to H. H. and John Hull, and were sold under a decree of the court of Chancery in another suit, as the property of those devisees. The proceeds belonged not to the estate, but to them, subject only to the duty of each on general division, to be accountable for any excess over his due proportion of the estate. The land was sold by the appellant Strother as commissioner of the court; and although ordered by the court in that case, to hold a portion of the proceeds, as assets of T. T. Hull’s estate, the proceeds were never properly in the hands of the appellant Strother, as administrator, and constituted no part of the assets of the estate. But if they were, being proceeds of land, and not covered by the bond of- the administrator in this case, his sureties are not responsible for his administration of that fund;.but a separate account thereof should have been taken on the principles established by this court, at its present term, in the case of Murphy’s adm’r & als. v. Carter & als., not yet reported. The bond of the representative was the same in that case, with that in this; and Judge Anderson, delivering the unanimous opinion of the court, says, of the sureties, “they are responsible for the true and faithful administration of the personal fund. But that was mixed with the proceeds of the land sales; the testator by his will having blended both into one common fund for the payment of debts and legacies. And the sureties of the administrator are only bound for the true and faithful administration of so much of this common fund as was derived from the ^personal estate. The administrator is clearly chargeable with the whole amount of- his receipts, whether derived from land or personalty: but such is not the responsibility of his sureties. ’ ’ He then goes on to ascertain the principles on which the account, in such case, Should be stated when payments have been made py the administrator out of the common fund, without designating from what source the payments were made; and he holds that where “both funds were so mixed and blended that it cannot, with any certainty, be ascertained,” out of which fund payments were made, they should be applied ratably to both, in proportion to the amounts of each in the hands of the administrator. This rule, we think, a just and equitable one ; that it should be applied to this case, and the accounts should be reformed accordingly.

It is true that no exception raising this question was taken in the court below, nor has it been raised in this court; but the error being apparent on the face of the accounts, it is proper that it should be noticed and corrected.1

The 3d, 5th, 6th and 7th points in the appellants’ brief have been already disposed of in considering the errors assigned in the petition.

The 4th objection to the decree is, to the charge against the administrator, of interest on the estate of Mary C. Hull, from the day of her death. We think there was no error in the charge, under the circumstances of this case. This estate was a balance in the hands of the administrator, due and unpaid to Maiw C. Hull at her death, and was then bearing interest. It was an interest bearing debt against the administrator; and there is no reason, under the circumstances of this case, why the amount of one year’s interest on his debt, or any part of it, should be remitted to him.

*This brings us to the errors assigned by the appellees, under the 9th rule of the court. The first is, that the court below erred in allowing commissions to the administrator, he having wholly failed to settle his accounts, until compelled so to do by decree entered in this cause March 30th, 1867, about thirteen years after his qualification.

The statute in force during the entire period of the transactions of this administrator, and applicable to personal representatives, provides that “any such fiduciary who shall wholly fail to lay before such commissioner a statement of receipts for any year, for six months after its expiration, shall have no compensation whatever for his services during the said year. ’ ’ Code, ch. 132, § 8, p. 602. There are some exceptions to the rule, set forth in the statute, but they have no application to the case before us, and need not be noticed. The forfeiture thus prescribed has been held by this court to be arbitrary and absolute; and, therefore, not under the control of the courts. 6 Heigh 271; 3 Gratt. 113. But it has been argued, that the forfeiture should not be enforced in this case, because, by the amendatory act of March 1, 1867, Sess. Acts 1866-7, ch. 279, p. 704, a discretion is allowed the courts to enforce the forfeiture or not; tfiat the allowance of commissions is discretionary with the courts. Without enquiring whether that amendment should be construed to have a retrospective operation — a construction- not favored in law — it is enough to say that it was clearly intended to be exercised in cases in which there should be some reasonable excuse for the delay; to cases in which, under all the circumstances, it should appear unjust and inequitable to exact the forfeiture. Such is not the case before us. This administrator was not prevented from the discharge of this obvious duty, by accident, inadvertence, or other extenuating cause; but *the failure occurred from a deliberate purpose, on his part, formed and avowed, not to settle under the provisions of the will until compelled thereto by law. We see nothing in such a case to justify the court in exercising the discretion invoked, conceding it to exist; and we are of opinion that it was error to allow the administrator commissions on his transactions down to the 1st day 'of January 1860. On all transactions subsequent to that date, he should, under the operation of the act of March 2, 1866, entitled “an act to preserve and extend the time for the exercise of certain civil rights and remedies, and of the seventh section of the. stay law,” be allowed the usual commission; and on the land fund he should be allowed the commission prescribed by law for special commissioners making judicial sales, viz: S per cent, on the first $300, and 2 per cent, on the residue.

The court is further of opinion, that there was no error in refusing to charge the administrator with damages done, or alleged to be done to the land of N. J. Smith; nor in refusing to charge him, as administrator, with the rents of that land whilst in possession. But the court is of opinion that the appellant Strother should be charged individually, in his account with Mrs. N. J. Smith, with such rents, he having withheld her land from her for his own use until compelled to surrender the same by order of court.

And finally, we think there was no error in adopting the valuation of the home place as set forth in the report of Preston and others.

The decree of the Circuit court reversed, with costs to the appellants; and a decree entered in accordance with the principles above declared.

The decree was as follows:

*The court is of opinion, for reasons stated in writing, and filed with the record, that the Circuit court did not err in charging the appellant Strother with the sum of $230.00 for the furniture of his testator, retained by him; nor in charging him, in the same character, with compound interest down to the 1st of January, 1861, (after which time he is to be charged with like interest as guardian de facto, but not as administrator; and for such interest his sureties, as administrator, are not to be held responsible;) nor in charging him with interest on the amount due Mary C. Hull, dec’d, from the day of her death; nor in refusing to charge him, as administrator, with damages to the land of N. J. Smith ; or with rent for the same; nor in adopting the valuation of the home place, reported by Preston and others.

But the court is further of opinion, that the Circuit court erred in the following particulars, to wit: in decreeing to the several legatees the sum of $735.42 6-7 each, in addition to the amounts reported in their several accounts, the same having been already included in said accounts; also, in charging the appellant with rent for the home farm; also, in blending the proceeds of the Miller and Kesner lands with the personal estate. These funds should have been kept separate, as the sureties are not responsible for the proceeds of the lands. Any unpaid balance of that fund is an individual debt of the appellant Strother; and in ascertaining this balance, when payments have been made out of the blended fund, with no means of showing out of which they were made, they should be applied ratably to both, in proportion to the amount of each in the hands of the administrator.

The court is further of opinion, that there was error in allowing to the administrator commissions on the receipts of any year prior to the year ending the first *day of January, 1861; all compensation for his services for those years having been forfeited by his failure and refusal to settle his accounts according to law. For the year ending as aforesaid, and after that time he is to be allowed, under the operation of the stay law, the usual commission on his receipts; and on the proceeds of the Miller and Kesner lands he will be allowed the usual commission of a special commissioner, viz: 5 per cent, on the first $300 and 2 per cent, on the residue.

The court is further of opinion, that the appellant Strother should be charged individually with a reasonable rent for the land of N. J. Smith, the same having been held by him for his own use, until compelled to surrender it by order of court, but not with damages. An account of these rents will be taken; against which the said appellant will be allowed to establish any payment or legitimate offset.

The court is further of opinion, (although in this case the merest matter of form,) that it was irregular to distribute the estate of Mary C. Hull, dec’d, without having her personal representative before the court, if required by the appellant; and should he now insist on it, such representative should be made a party.

It is therefore decreed and ordered that the said final decree of the Circuit court of Tazewell county, and all previous orders and decrees in conflict with this decree, be reversed and annulled, so far as they may conflict herewith; and that the cause be remanded to the said Circuit court, to be further proceeded in, according to the principles of this decree.

And it is further decreed and ordered that the appellees do pay to the appellants their costs by them about their appeal in this behalf expended.

Decree reversed.  