
    John Pace Administrator of Silas Pace v. John Burton Guardian.
    The complainants were the minor children and the widow of Silas Pace, who died intestate on the 11th February 1811. The object of their bill against the defendant, who administered on the estate, was for an account of the personal property, and of the rents and profits of the real estate of the intestate.
    ,, , . ihe defendant, by his answer, alleged, amongst other things, that, as far as the knowledge of the defendant extended, the intestate claimed but two tracts of land, one ' called the Deadfall and the other Allemberg and Matthews’ tract. These were small possessions, on what called the Salvador tract, and generally known by the name of the Jews’ land. The defendant rented them out as the property of the intestate ; and not long after he acquired the possession of them, actions were brought against the tenants by Robert E. Griffith, and subsequently. by Patrick Duncan, to try the title and for damages, and that the defendant was obliged to indemnify them against any damages which, might be recovered. The defendant believing that he incurred great responsibility to the real owners, and having taken counsel on the rights of the heirs and widow, was advised that they had no right or title. He then endeavoured to save himself against all costs and damages which might be recovered. He also stated that the said Patrick Duncan did recover the Allemberg and Matthews’ tract with damages •, and the intestate’s right to the Deadfall tract was established on the naked possession of the intestate. That there were no grants or title deeds of these lands, the intestate’s rights depending on the length of his possession. That during the pendency of the actions, John Burton, the complainant, was appointed guardian of the minor children; and attorney of the widow; and that defendant offered to account with him for the rents of the lands, provided he would indemnify him, which the said John refused to do. That after the termination of the said actions, the. defendant never refused to account with the said John Burton for the rents after deducting the expenses incurred.
    
      An adminis-pa^üia^ck-tain funds in ^thoufinter-est, to pay expenses of suits instituted, to “testate, the retention De~ ing bona fide Prudent-
    
      1826.
    
      Columbia.
    
    Upon the reference of this case to the Commissioner, he charged the defendant with the rents, and allowed interest on each year’s rent, calculated up to the time of his report.
    The defendant, amongst other exceptions, excepted to so much of the report as allowed this interest, on the ground that the exigency of the estate required him to retain this fund in his hands, to meet such costs and damages as might be sustained in the actions at law, as these lands were nearly all the time subject to litigation, and the defendant was responsible to his tenants for whatever damages might be so recovered.
    The case was argued on the Commissioner’s report and exceptions thereto.
    The Chancellor overruled the exceptions and confirmed the report, and ordered the defendant to pay the costs. The defendant now moved to reverse this decree on the following grounds : >
    May 1825.
    That the defendant’s exceptions to the allowance of interest on the rents should have been sustained, inasmuch as the exigency of the estate required this fund to be retained in his hands; the lands being nearly all the time in litigation, and the defendant liable for the costs and damages which might be recovered. And,
    That under all the circumstances of the case, the defendant ought not to pay the costs.
    JVohZe, for the appellant.
    All the money decreed to be paid arose from the rents of these very lands, except $264 interest, which he contended was not recoverable, and cited Griffith v. Frazier, 8 Cranch, 9. Perkins v. Baynton, 1 Bro. C. C. 359. 375. 3 Bro. C. C. 73. 2 Atk. 151. 2 Fonb. 429., Darrel v. Eden, 3 Desaus. Rep. 241. 4 Desaus. Rep. 369. 464. 555. 5 Yes. 843.
    As to costs, the defendant ought not to pay them. He has done an act of kindness in renting these lands, which, as administrator, he was not bound to do. He has actually trespassed on the lands for the complainants’ benefit, and now they should not punish him for it. This is different from the case of an executor who might have some trusts over the land. 13 Yes. 550.
    
      Bowie, contra,
    cited 1 Desaus. Rep. 193. 2 Desaus. Rep. 233. 3 Desaus. Rep. 24?. 4 Rep. 65.
    
      Generally executors, ad-arid others3’ standingin areiTsWe'™5’ onyfandseSt which they in their p0s-session, but is allowed in theTeJgen-fafe might require the implicationaof the fund to a different object.
    And if the money has been prudently retained, ho will not be charged with interest during such retention, unless it be shewn that he has derived an interest from it, or applied it to his own purposes.
   Curia, per

Johnson, J.

Generally executors and ad~ ministrators, and others standing in the like situation, are liable to pay interest on funds which they have detained ^lelr possession. But it is clearly deducible from all the cases on the subject, that an exception is allowed in , , . . „ , those cases, when the exigency of the estate might re-‘I0’11'6 the immediate application of the funds to a different object. 1 Bro. C. C. 359. 375. 3 Bro. C. C. 73. 3 Desaus. Rep. 341. 4 Desaus. Rep. 464. 559. And the g00^ sense of it is well illustrated by the common occurrences of life. ■ A prudent man who was in the possession hr funds, and against whom an action was depending, the result of which was doubtful, or against whom there were demands which might be pressed upon him unexpectedly, would, on estimating the advantages or disad-va!Jtaoes that might result from the course to be pursued, generally come to the conclusion, that it was more for his interest to retain the fund, than to incur the hazard to which he would be exposed if he parted with it, . , . . although he might derive an interest from it.

The defendant, in this case, had assumed the responsibility of leasing the lands of which his intestate died possessed. Actions were commenced against his tenants to try the titles to the land ; and he was liable over to them for the damages and costs which might be recovered; the amount of which it was impossible he could foreknow ; and when and how they would terminate was equally a matter of conjecture. Pie stands, therefore, precisely in the situation in which the case supposed places the prudent man; and it is unreasonable that he should pay interest on the fund pending those actions, unless indeed it had been shewn that he had derived an interest from it, or applied it to his own.purposes.

It is therefore .ordered and decreed that it be referred to the Commissioner, to ascertain when the actions brought by Patrick Dwncan, against the tenants of the defendant, were finally determined; and that the complainants be allowed interest on the balance arising from rents, in the hands of the defendant, only from that time. It has been alleged at the bar, that in the account stated by the Commissioner between the parties, interest has been allowed on the disbursements made by the defendant ; and if so, the Commissioner will expunge so much of it as arose prior to the determination of the cases above referred to.

Cost is a mat-[f0rn"^ equity even has been no g^atvioiation ot right costs may be de-1

In the Court "of Equity costs are said to be a matter of discretion; and in looking through this case, the Court is unable to discover that it has been improperly cised. A part of the fund arising from the personal estate, and which is still in his hands, was not paid over r when it should have been; and this fact, combined with other circumstances which enter into the case, takes away from the defendant any claim which he may have on the indulgence of the Court. This ground of the motion is therefore refused.

Decree reversed.  