
    John M'Caw, and Wife, v. Thomas G. Blewit, and Others.
    A decree confirming a report of the commissioner is conclusive as to every thing contained in the report, to which exceptions are not sustained, including such matters as might have been, but were not, excepted to ; and although the decree is reformed by the Court of Appeals, it remains conclusive, in all respects in which it is not modified or reversed; and if an account is sent back by that Court, it is opened only for the purposes specified in the decree. But if the decree of the Court of Appeals leave a matter concluded, which was intended to be left open; or if it be founded on misrepresentation; it will be amended by that Court, so as to do justice to the parties, on a subsequent appeal, upon the coming in of the new report, and exceptions thereto.
    An administrator is chargeable with interest on all sums received by him for the estate of his intestate, and not applied to the purposes of the estate, unless he has retained them in his hands unemployed, for reasons which rendered it proper that he should do so ; and even where such reasons exist, the onus lies onhim to shew, by proof, the amount actually retained.
    An administrator who has refused to settle with a distributee without suit, because his character had been assailed, and he wished an investigation of his conduct, will not be relieved from the payment of interest, on the ground that he retained the funds in his hands to pay the distributee.
    Before Harper, Chancellor, at Chester, in June, 1829.
    This was a bill for an account of the distributive share of the complainant, Mrs. M'Caw, in the estate of her father Allen De Grafienreid, deceased, of which administration had been granted to the defendant, who had also been appointed guardian of the complainant. The bill was filed in June, 1823, and the case having been referred to the commissioner, a report was made by him, to which various exceptions were filed; and the cause was heard and decided by Thompson, Chancellor, in June, 1826. An appeal was taken from his decree, which was modified in certain particulars by the Court of Appeals; and the account was again referred to the commissioner, to be amended in conformity to the decrees. Seethe case reported in 2 M’C. Ch. 90.
    
      One of the defendant’s exceptions was, “ that he ought not to have been charged with interest on the amount due,' from the filing of the bill, inasmuch as he offered to settle and pay the complainants the money, and the funds have been kept for them.” On this exception the Chancellor decided, that under the circumstances of the case the defendant ought not to be charged with interest; arid the exception was sustained. This part of the decree was appealed from; and in reference to it, it was said in the decree of the Court of Appeals, “ On the subject of interest, generally, it is the opinion of my brethren, that the defendant must be charged with it, from the time of receiving the different sums of money to the commencement of this suit; and for all sums since received, with the interest thereon received.”
    In the amended account, made under the reference ordered by the Court of Appeals, the commissioner arrested the calculation of interest in June, 1823, when the bill was filed: to which the complainants excepted on the ground, that the burden of proof laid on the defendant, to shew what amount of funds he had collected before the suit, and held for the complainants; and as he had not offered a tittle of proof on the subject, he was not entitled to exemption from interest on any part of it.
    The cause came up before -Harper, Chancellor, in June, 1829, on the report and exceptions thereto.
    In support of the exception, the defendant’s answer was referred to, in which he does not state, that “ he had offered to settle with the complainants, and pay them their money,” nor that “ the funds were kept for that purposebut the only allegation is, that “ he is now, and at all times has been, ready and willing to render the complainant every account and satisfaction on the administration of intestate’s estate.” And in an amended answer, filed in February, 1S24, he states, “ that he has the whole of the proceeds of the estate in his hands, and that said proceeds are principally in notes outstanding, on interest, for the benefit of the estate.” Several letters written by the defendant were also produced, in which, although he at one time offered to settle with complainant, “ provided he would take his wife’s share of the money uncollected;” yet he immediately afterwards, and before the filing of the bill, refused to settle on any terms, until he was compelled by suit.
    
      Harper, Ch. I may observe, in general, that the decree of Chancellor Thompson is final and conclusive, as to every thing contained in the former report, with respect to which the decree n0t keen reversed, or modified, by the Court of Appeals. I do not mean, merely, matters as to which exceptions were taken and expressly decided, but every thing contained in the report, which might have been excepted to. The decree confirmed the report, except so far as exceptions to it were sustained; and the decree of the Court of Appeals opens the account only for the purposes specified.
    The complainants’ exception now to be considered relates, chiefly, to the amount of the two sales of the estate, which are charged as having been received by the defendant when the money became due. I must consider this matter as having been settled by the former decree. These items were charged in the former report precisely as they are charged now, with the exception that interest was then calculated up to the time of the report. The exception was, that interest ought not to be charged after the filing of the bill, as the defendant offered to settle, and kept the funds foe the complainants ; and this exception was sustained. I cannot perceive that the decree of the Court of Appeals alters, or reverses, the Chancellor’s decree in this respect. The appeal decree mentions the general principle, on which interest is to be calculated : but if it be, as the Chancellor’s decree decides, and I must taire it for granted, that the defendant had collected, and held the funds, to meet the complainants’ distiibutive share, they are not entitled to share the interest which afterwards accrued on outstanding debts due to the estate. The other distributees will receive that interest. The exception is overruled.
    From this decree the complainants appealed.
    Johnston, for the appellants,
    contended, that the appeal decree did not affirm the decree of Chancellor Thompson, on the point in question; but merely declared the general principle relating to it, on which the account was to be made up, and left the account itself to be settled by the evidence. The defendant had not brought himself within the principle, and was not, therefore, entitled to the benefit of it. There was not a particle of proof that he ever retained funds for the complainants. All the evidence, and even his own answer shewed the contrary ; and the only pretence that he ever did retain, is the -unsupported statement in bis exception to the former report. Indeed, it is palpable, that so far from retaining the funds, they were not collected when the suit was brought, but were out on interest; and the complainants are to be deprived of the interest on their money, for six years, which interest the defendant has actually received, by the contrivance of - charging himself in the account with the amount of the debts long before they were paid to him. The deciee of the Court of Appeals was certainly not intended to sanction a fraud of this sort.
    Williams, contra,
    
    insisted that the question was concluded by the former decree, on which the Chancellor had placed the proper construction. If strict justice had not been done to the complainants on this point, more than justice had been done them on other points in the case; and they ought to be satisfied.
   Colcock, J.

delivered the opinion of the Court.

The Chancellor could not have given any other construction to the decree of the Court of Appeals, in this case, than that which he has given, so far as regards the stopping of interest on the filing of the bill. Bat the Court did not mean to say, that interest was not to be calculated on any part of the estate; but on the contrary, the defendantwas directed to be charged with all sums since received, with the interest thereon.” What the administrator had in his hands was to be shewn, of coarse, on the reference; and that by him, for it is obvious that he alorje could shew how much of the estate he had received: and although the Chancellor had not the power tp reform the decree of this Court, yet it now being made to appear, that that decree was founded on a misrepresentation of facts, this Court can, and will, amend the decree, so as to do justice to the parties.

It was expressly stated in the report, and so contended on the argument of the case here, that the administrator had been always ready and willing to come to a settlement; and my brethren thought, as he had been improperly forced into Court, it was hard he should he made to pay interest. But on the reference it is now proved, that so far from being ready, or willing, to make a settlement, he had determined not to do so until the Couit should make a decree; assigning as a reason, that he had been aspersed by the complainant, and therefore he wished an investigation of his conduct. I do not profess to use the words of the party, but this is the plain meaning of them; and for this reason he resisted the claim, and refused a settlement. This takes away the ground on which the Court said the calculation of interest should be stopped ; and the complainants certainly have a right to the benefit of the rule, which is usually applied in such cases, that interest is to be charged on all sums received by an executor, or administrator, and not applied to the purposes of the estate.

It is therefore ordered and'decreed, that the commissioner, on the final adjustment of the accounts, calculate the interest on all the money received by the administrator, from the first of January after the receipt of any sums in each year, to the final settlement, according to the repeated decisions of this Court: that is, on the balance due at the end of each year.

Decree modified.  