
    Thomas W. Cooch et al. v. John Irwin, Administrator.
    When a bill of exceptions is taken in the common pleas, which refers to papers as made part of the bill, but in such a manner as not to authorize their being attached to the bill as part of the record, and on error to the district court, no objection is taken, on account of such papers not being made part of the record, by the defendant, in error, who afterward presents a petition in error to this court, he can not here object to such omission.
    An administrator is not chargeable with interest on money which comes into his hands as the representative of a deceased person, unless he employ it in his own business, derive some benefit from the loan of it, or is guilty of unreasonable and unnecessary delay in the settlement of his accounts with the court.
    Petition in error to reverse tbe judgment of tbe district court of Butler county.
    In November, 1843, John Irwin took upon bimself tbe administration, with tbe will annexed, of tbe estate of Tbomas Coocb, deceased.
    Tbe administration accounts of Irwin were settled by tbe probate court, and tbe cause removed, by appeal, to tbe court of common pleas. Tbe latter held the administrator liable for interest on tbe money which came into bis hands, and made an order requiring him to pay it. Tbe proceedings of tbe common pleas *were, by Irwin, brought into tbe district court, by petition in error, and as to tbe item of interest reversed by that court.
    Tbe following bill of exceptions was, at tbe instance of Irwin, signed by the judge of tbe court of common pleas, and made part of tbe record:
    “ This cause came on to be beard upon the report of tbe master, in relation to tbe accounts due, vouchers of tbe said administrator, and tbe exceptions to said report, it appearing in evidence that administration, with tbe will annexed, upon tbe estate of Tbomas Cooch, deceased, was taken out by said Irwin in November, 1843, and that over and above the other assets named in the inventory .and appraisement, he found specie on hand to the amount of eight hundred and forty-three dollars; that at the February term of the court of common pleas, in 1844, a bill was filed by said Owen R. Cooch, Thomas W- Cooch, Abram F. Darr and wife, and Sarah Ann Mclntire, all the heirs of the deceased, against Isabella Cooch, John Irwin, and William P. Cooch, to set aside the will of Thomas Cooch, deceased. An issue was tried by a jury, and a verdict and decree in favor of the will, in February, 1845. The complainants in that behalf appealed to the Supreme Court, where the case was continued until the-May term, 1847, when, by an agreement of the parties, the will was set aside, and a decree entered to that effect at May term, 1847. William P. Cooch brought suit on a note for $2,250, principal, and about two hundred and fifty dollars, interest, which said Irwin defended, and'which resulted in a judgment in favor of defendant, at May term, 1849. At May term for Butler county, in 1848, of the Supreme Court, Thomas W. Cooch filed a bill of review in that court, to reverse the'decree by which the said will was set aside, which bill was still pending until, and was finally disposed of at, the December term of said Supreme Court in bank, in 1849. On the 21st day of March, 1850, the papers were filed for settlement. All of which record and proceedings were before the court in. evidence, and now referred (to) as part of this bill of exceptions, together with all the papers connected with the administration of said estate, (which) are also made part of this bill of exceptions, and hereto attached.
    
    *“V. Chase was sworn as a witness, who stated that he had acted as the attorney of the administrator from the issuing out of the letters to him; that the settlement of the estate had been delayed by reason of the continuous litigation, and that at the nest term of court after the dismissal of the bill of review by the court in bank, Irwin, in the absence of the witness, had procured the papers to be filed for settlement, and at every term thereafter till the papers were transferred to the probate court, he was ready and willing to settle, and did actually attend at each term of the court for that purpose. Sometimes the case was continued for want of time, and at others, in order that the associate judges might get the opinion of the president judge upon a question that arose in the course of the settlement in relation to some of the vouchers, which were resisted by these distributees. Witness stated that there had been two other suits than those mentioned above, one a collection case against Thos. W. Cooch, and the other a litigated case, prosecuted against said Irwin, as administrator, by one William Gray.
    “But it did appear in evidence from admissions of the parties, that said Irwin had not filed an account of his administration, or obtained further time for the settlement of said estate, and that citation was issued against him to compel settlement, to one or more of which it was claimed, and so admitted, that the return would show that said Irwin refused to settle said estate, because the court refused to settle according to law; that such proceedings-were had .between the time of taking out letters as aforesaid and-March, 1850, which proceedings and citation referred to are also-hereto attached and made a part of this bill of exceptions.
    “John Irwin, pursuant to the subpena hereto attached, brought into court a bag of money, and claimed to be sworn as a witness,, to which the appellees or heirs objected, but the court overruled the objection, and the said Irwin was sworn and examined, who-stated in substance that the money he produced in court was the same identical coin which he found on hand belonging to the estate of his testator, Thomas Cooch, deceased, and that he had kept it in the same bags in which he found it, and #now produced in court; that he had not used it or loaned it, or any part of it, nor received any interest or profit from it whatever; that he had not paid it out to the distributees, for the reason that he could not tell to whom to pay it, until the litigation should cease, by which it should be determined whether the distribution should be made under the will or under the statute; nor could he tell whether there would be any thing to distribute,, until the claims presented by the said William P. Cooch had been defeated; and that he had been instructed to resist said claims, by two or three distributees, which turned out to be a forgery. In answer to questions propounded by the counsel for the appellees, he further stated that the money could probably havo been loaned in that neighborhood at from eight.to ten per cent., though he never had an application to borrow this money, except one from said Owen R. Cooch, one of these distributees, who was not regarded as responsible, but that the same might have been loaned to responsible men for eight to ten per cent, per annum; that he had paid voucher number nine in the report of the master, to Thomas W. Cooch in money, at the same time that he held a note made by said Thomas W. Cooch to Isabella Cooch, not indorsed or assigned, though he believed it to belong equitably to the assets of the estate of his said testator, and so collected the most of it; a part of it never was collected; that he did so pay the money, because he knew it to have been the contract between the said Thomas W. Cooch and his father, the testator, that the latter should pay to the former fifty dollars for the building of wood-house, notwithstanding he hold said note; and that the testator had, in his lifetime, paid a part of the said fifty dollars in money, holding the said note at the sametime; and in paying the said sum he was only carrying out in good (faith) what he knew to haye been the contract between the parties. He further stated that from one to two years ago, Thomas Millikin bad asked him on two different occasions for one hundred dollars for Sarah Ann Mclntire, and that the second time, he said to the said Millikin the estate would now soon be settled, and she could have all of it.
    “ William Dodds testified that money might have been loaned in *the neighborhood safely at eight per cent. In consideration of which testimony, the court overruled the exceptions, and confirmed the report of the master, charging said Irwin with interest, thereby holding that it was the duty of the administrator, under all the circumstances, to have either stated the accounts with the probate court, and have obtained an order of investment, or make the money at least remunerative to those interested, at six per cent, per annum, after eighteen months, when he should have filed his first account,” etc.
    It is claimed that the district court erred :
    1. In reversing the judgment of the court of common pleas.
    2. In deciding that said administrator ought not to be charged with interest' on the money of the estate, remaining in his hands.
    
      Thomas Millikin, and Scott & McFarland, for plaintiffs in error:
    The district court erred in this reversal, and should have dis missed the petition. Because:
    1. Said district court had not (nor has this court) the whole testimony before them. It is stated in the bill of exceptions that various records, proceedings, citations, together with all the papers connected with the administration of said estate, are referred to, hereto attached, and made part of the bill of exceptions, whereas, in truth, no such papers are made part of the bill of exceptions. “ All the evidence before the jury (in this case the court) must be embodied in or made part of the bill of exceptions. It will not do, as is sometimes attempted to be done, to refer to the records of courts or records of deeds, and attempt to make them parts of the bill of exceptions.” Hicks v. Person, 19 Ohio, 446; 1 Ohio St. 412.
    This bill of exceptions does not recite the whole of the evidence given in the cause in the court of common pleas; nor does it pretend to contain it all; but on the contrary, it shows that much evidence was heard which it does not contain. The law in Ohio now requires that all the testimony must be set forth in such cases, and that it must appear from the record, that it all is set forth. 17 Ohio, 498; 21 Ib. 414; 19 Ib. 446.
    *2. Upon the merits. The only question is, shall the administrator be required to pay interest upon money which has been in his hands twelve years ?
    Where administrators have retained money unreasonably, or neglected to account to the court, they are chargeable with interest. 1 Am. Lead. Cas. 363, 364; 1 Johns. Ch. 508, 527, 620.
    If an executor retain money in his hands and neglect to invest it, he is liable for interest. Toller on Executors, 480.
    In 2 McCord’s Ch. 266, it is said, that where trustees refuse to account, the court will adopt the most rigid rule for calculating interest.
    
      Chase & Vance, for defendant in error
    If the first position of plaintiffs in error be good, it only shows that this court ought to dismiss this petition without disturbing the judgment of the court below. It does not follow that because the records and papers referred to are not before this court, they were not therefore before the district court.
    But we assume the position that the record does contain all the facts in relation to the issue, which is simply whether the administrator ought to be charged with interest upon the funds in his hands.
    The cases of the authorities referred to by counsel on the other side, are motions for new trial, because the verdicts were against evidence. The court very properly say they can not determine whether the verdict be against evidence or not, because only a part of it is before them. But that is not the case here.
    The administrator is not properly chargeable with interest. He has not used the funds himself, nor derived any profit from them.
    
      The delay in his settlement with the court was necessary and unavoidable, and therefore not unreasonable. 2 Williams on Ex’rs, 1529, note, and 1568, note 1; see also the preceding note; 16 Serg & R. 416; Halst. 145; 1 Marsh. 477; 12 Ves. 386; U. S. Dig., title Executor.
   *Bowen, J.

The counsel for plaintiffs in error claim, in their argument, that the bill of exceptions does not contain the whole of the evidence given in the cause in the court of common pleas; and that the district court ought for that reason to have dismissed the petition.

There was no objection taken by either party in the district court to the sufficiency of the record. No diminution was alleged or motion made to dismiss the petition, nor was there any opposition to the hearing of the cause before the court, on the record which had been returned there by the common pleas. The defendants below, who were interested in sustaining the judgment of the court of common pleas, may have consented to the hearing of the case on the record which was then before the court. There is nothing to the contrary shown, and it seems just to infer that both parties considered the record sufficiently complete to present, satisfactorily, the points relied on by them respectively. Had not this been the ■case, the district court might have been moved to dismiss the case, •or to require the defects in the record to be supplied; and a denial •of such motion, upon proper application by the party prejudiced, would have been the subject of exception there, and of examination .and correction, on error, in this court-. There is no error apparent in the proceedings of the district court. The facts disclosed in the record before us, authorize such a judgment as was rendered. Before any judgment of an inferior tribunal can be reversed, it must be made to appear affirmatively that some error has been committed ; and in many cases that can only be done by taking exceptions to the rulings of the court.

The bill of exceptions appears to set out the facts of the fcase very fully. We doubt whether the absent papers would, if attached, furnish us any additional aid in settling the principle involved; and so, we suppose, the parties viewed the Case in .the district court. But if we were satisfied that some of the exhibits referred to were not contained in the bill of exceptions, yet as the reference made to them will not allow of their being attached to the bill of exceptions, aiid thus to become a part of the record, it is too late now for the plaintiffs in error to object to the action *of the district court in that respect. That court took the record which the parties submitted to it, without objection, and pronounced judgment thereon. The same record, in this proceeding, comes here for our inspection and judgment, and we must be controlled in our decision by it.

The ease of Hicks v. Person, 19 Ohio, 446, refererred to by counsel for plaintiffs in error, determines that where a writ of error is prosecuted in the Supreme Court, to reverse a judgment of the court of common pleas, on the ground that the court erred in overruling a motion for a new trial, because a verdict was against evidence, all the evidence before the jury, on the trial of the cause, must be brought before the Supreme Court by bill of exceptions.

So, in Burly v. Finn, 1 Ohio St. 409, it was held, that to make a paper a part of a bill of exceptions, it must be incorporated in it, or attached to it, or filed with it, and that it must be signed and sealed at the term at which the exception is taken, and can not be amended after that time.

These cases, which we regard as sound law, do not seem to be applicable to the one now under consideration. They relate to a different'principle and rule of practice.

The principal point of controversy in this case is, whether the administrator should be charged with interest on the money which came into his hands from the estate of the deceased, Thomas Cooch ?

Where an administrator receives money from an estate which he undertakes to settle, and employs it in his own business, or where he loans it out, and receives interest for the use of it, or where he delays for an unreasonable time, and without any satisfactory excuse, to close up the affairs of the estate, it is just that he should make good to the heirs, in the form of interest, any advantage he derives from the use or investment of the money, as well as any loss which results to them by the neglect of the administrator to perform his duty, within a reasonable and proper time.

In the case before us, the evidence does not show that Irwin used the money in any way, except to retain it in hand. The *same specie which came to his hands, from the estate, he produced before the court. He made no loans, nor any personal use of it. He was prevented, by litigation, from an earlier settlement of his accounts than he effected. No benefit accrued to him by the retention of the money in his hands, and no fault of his occasioned the delay in the settlement of his accounts with the court, preparatory to a distribution among the heirs.

We think, therefore, that the district court committed no error in the order which it made.

Judgment of the district court affirmed.

Bartley, C. J., and Swan, and Brinkerhoee, JJ., concurred. Scott, J., having been of counsel, did not sit.  