
    Jabob Esswein and Nancy Esswein vs. John Siegling, Executor Theodore Esswein.
    Heard before Chaucellor D. Johnson, Charleston, May Term, 1836.
    Theodore Esswein, of Charleston, by bis will dated I7th March, 1830, gave all his estate,-to his parents, Jacob Esswein and Anna Marta Esswein, and his sister, Nancy Esswein, of Manheim, Germany ; and named Dr. Benjamin Simons, and John Singling, of Ch- rleston, executors. Anua Mari i, died before the testator, and he died in Cuba, on the 28th June, 1830.
    Siegling, one of the executors, who vims in- Cuba, removed the property there, to Charleston ; which was not efleeted without some difficulty; and proved the will here.
    
      Jacob and .Nancy Esswein, in December, 1830, wrote to Sieg*-’ling, among other things, as follows: “The compensation which the law allows, does not appear to us an adequate indemnity for a? man of business, nor will We limit ohrselves to it, blit beg you to make use of our gratitude to any extent you may deem proper.” And again, on the 6th March, 1932, “In acknowledgment of the great pains yon took in these affairs, We, with a deep sense of gratitude, intreat you to accept, besides the lega! Commission, or provision as executor, §1,000. both as a present from our part, and a-token of memory of your late friend, which sum you will please deduct from the proceeds in hand.” And on the I3th June, 1832, “ The precaution you display in the management of our affairs, leaves ns more and more indebted to you, but we hope hereafter to find occasion to return to you, or some member of your Respectable family, part of our obligations. Let us entreat you, esteemed friend, not. to judge us wrougfaliy On that account, nor suspect us ol a desire to pay off a friendship, which has obliged us forever, and bids us to avail ourselves of every opportunity, to pfove by deed the sincerity of our sentiments.”
    They afterwards found fault with the administration, and filed this bill
    The commissioner made his report of the balance in defendant’s bunds. '5 he complainants exc. pied to the allowance of the $1,000 ; and the defendant to the rejection of certain charges, which will appear by the decree.
    JotiNsoN, Chancellor. “ in assuming the administration of the estate, the defendant incurred tin obligation imposed by law, to pay the complainants what should remain of the estate after paying the debts of the testator, and the necessary expenses and charges of administrator ; and as a compensation for his services the act of the legislature, authorizes him to retain a commission of two and a half per cent, on all moneys received, .and provides the like commission on aU'sums paid out, and the act of 17i5. Pub. Laws 203, pro-vid ‘S, that if the executor shall have extraordinary trouble in the management of an estate, he may bring an action in the Court of Common Pleas, in which a jury may allow him a further compensation, not exceeding five per cent, on the amount which may have passed through his hands. In stating the accounts,- the commissioner credited the defendant with two and a half per cent, for receiving, and the same for paying out the iunds. So that he became indebted to the complainants on the balance of tho estate, and the question is, whether the defendant is entitled to credit for the additional sum of $1,000, which the complainants tendered to him, and authorized him to deduct ftom the funds in hand, and which he agreed to accept as a further compensation. If it be regarded as a mere voluntary offer to give, I think very clearly that he is not. No executory contract is binding, unless it is founded on a good or valuable consideration, and the discharge or dissolution ol a subsisting debt or obligation, is as obviously the subject matter of a' contract, as an undertaking to pay money, or to do any other act, and ncessarily requires the same consideration to support iC Hooper vs. Goodwin, 1 Swan, 485; Bryson vs. Browning, 9' Yes. 1 ; Byrn vs. Godfrey, 4 Ves. 6 ; Reeves vs. Brymer, 6 Ves.-516. No declaration of any intention to give, however solemn and formal, even although the terms import a present gift, will be binding unless it be accompanied by a delivery, or transferor the thing intended to be given. But it follows neeessarily, that a gift executed by a delivery of the thing intended to be given, is binding on the donor, however improvident it may have been on his part, or however unworthy the donee. Cotteen vs. Missiny, 1 Mad. Rep.-.188- 1 do not understand, however, that an actual manual delivery is indispensible. It is enough, that the donee obtained the possession of the thing given, under the authority and with the assent of the donor. Thus, if the gift be of a horse in a stable, and the donor Say to the donee, “ 1 give you that horse and authorize you to take him,” and he take him accordingly; so of money in a drawer, or goods in a warehouse.
    Here, the deieudant was in possession of a fund which belonged to the complainants, and ia their letter of the 8th March, 1832., they entreat him, “ to accept, besides the legal commission, or provisions as executor, $1,000, hoth as a present on our part, and a token of memory of your late friend, which sum you will please deduct from the proceeds on hand a most clear and decided de. clarution of an intention to give. The answer of the defendant, to this letter, is not before the eourt, but in their letter of the 1st September, 1832, they say, they rejoiced “ at the acceptance of the gratification we offered to you, as a feeble effort of uur gratitude,” &c.; and it is obvious that in hts reply to the first letter, defendant had consented to accept the tendered gratuity, and in conformity with their request,-had deducted it from the fund in hand, anu appropriated it to his own use. So that the gift was perfected to the whole extent of which, from its nature, it was capable, and the question is, whether the complainants are bound ? 1 think they are. The circumstances well warranted the defendant in treating this sum as his own, and the necessary' inference is, that he did so. He may have adventured it in hazardous and loosing speculations, or dissipated it in folly. If he has made a profit in it,, and is bound to account for the principal, he must also account for the profits ; and it would be unreasonable to call him to such an account at this day. If it has been lost, or dissipated in folly, the complainants are chargeable with throwing this temptation in the way of the defendant.
    There is another view of this matter. The act of 1745, before referred to, allows an executor additional compensation, not exceeding five per cent., when lie shall have had extraordinary trouble in the management of the estate. The defendant had extraordinary trouble with this estate. A part of it was in Cuba, and a part here, and necessarily involved the trouble and expense of travelling to and fro ; he was under the necessity of remitting the funds to Germany, by means of bills of exchange ; his diligence arid prudence in the management of it, is again and again admitted, and commended in the complainants letters, and although the tender of the Si000, is put on the fooling of a voluntary donation, yet it is obvious, that this extraordinary trouble, is the basis of the gift, and entered largely into the consideration ; so that in truth the donation was not merely gratuitous ; and I apprehend, that the court would not enter very minutely into the inquiry, whether the compensation fell short, or exceeded, the compensation allowed by law, as in Trimhiier vs. Frail, 2 Bailey 482, when a legatee agreed not to charge the executor interest on her legacy, because he had not charged her commissions on her legacy, and had boarded her gratuitously fbr a short time ; and it was held that the consideration was good, and the promise binding, without an inquiry into the exact state of the accounts. This exception is, therefore, overruled.
    Having thus disposed of the exception on the part of complainants, 1 will now consider those on the part of the defendant. They ' are,
    Because the defendant was not allowed $273.32, the amount of the usual commissions for guaranteeing bills of exchange, remitted to the complainants on account of their legacies. The complainants instructed the defendant to remit. “ All that remains please 'convert into bills of exchange,” &c., &c. The bills of exchange, were therefore remitted, at the request of the complainants ; and 1 cannot perceive in what the complainants were benefited, or the defendant injured, by his guaranty. If the defendant had discharged his duty, in purchasing the bills, by taking care that the parties were in good credit, he would not have been involved in any liability, although they had never been paid. In any view, it was merely a voluntary act on his part, for which he is not entitled to demand compensation ; the charge was therefore properly rejected.
    Because the defendant was not allowed $313 62, the amount of the usual commissions on certain drafts charged to have been collected by the defendant on account of his testator, partly in his life time, and partly since his death. With respect to the drafts collected after the' death of the testator, the view of the commissioner is certainly correct. It was a part of his duty as executor, for which his compensation is fixed by law, and has been allowed him. The charge for those stated lo have been collected before the testator’s death, does not appear to have been supported by evidence, and I think the commissioner reasons correctly in relation to them.”
    From this decree both sides appealed.
    PetigRU, for complainants.
    Delivery is essential to a gift, and a consideration to a promise. Neither delivery nor consideration is made out. But even if the gift had been executed, the defendant could not insist on it. "The rule is against allowing a person standing in a fiduciary relation, to practice upon the confidence of his constituent, so as to make an advantage of his bounty, till the velation is at an end. Thus a gratuity from a client to his attorney, may be recalled. Walmeslv vs. Booth, 2 At. 25; Newipao vs. Payne, 2 Ves. jr. 199 ; Welles vs Middleton, 1. Cox 112.-So the principle has been enforced against a guardian, Hylton vs. Hylton, 2 Ves. 547 ; Waring vs. Purse, 1 P. Wms. 120. n.‘Against an agent, Cray vs. Mansfield, f Ves. 379 ; Fox vs. Mac-reth, 2 Cox 158 ; Gibson vs. Jeyes, 6 Ves. 260.. ■■■■ Against trustees, Campbell vs. Walker, 5 Ves. 678 ; Exparte Hughes, 6 Ves. 617.
    All these were cases perfectly free front fraud. The gifts or contracts had been executed but on the principle of protecting against an abuse of confidence, the transactions were not allowed to stand. This case is fully within the principle, and is a very weak one for the claim, which is certainly not stronger than a receipt without satisfaction. A receipt in full would not have bound the complainants. Corbett vs. Lucas, 4 M'Oord 323. The claim of the» $1,900, is, therefore, certainly bad at law. A fortiori it is bad in equity, which never assists a volunteer, but sets asido actual gifts irom cestui que trust to his trustee, as against policy and jus-, tice.
    Eckharb, for defendant.-
    In all cases of a gift the real question is, whether the donor has parted with his domi no t ov'-r it. M‘Dowall vs. Murdoch, 1 Nort and M-Cord, 237. Where the subject will not admit of a corporeal delivery, if the party goes as lar as he can towards transferring tlin possession, his bounty will prevail. Toller, 234. A gift may be by deed, in word, or inlaw. All goods and chattels, personal, may be given without deed A free gift is good without consideration, and it is not. in the donor’s power to retract it. though he made it with-.ut any consideration. 2 Tomlin’s Law Dictionary, 'Pille Gift. Though a Court of Equity will not assist a volunteer, yet if the act be completed, though volunteer, the court will act upon it. 18 Vesey, 150. To complete a gift, there must be an actu il or constructive delivery of possession. Pitts vs. Matigum, 2 Bailey, 588 There may be cases where the court will establish an agreement made with a trustee for extraordinary allowance. Ayliffe vs. Murray, 2 4t-kin’s 60; Bishop vs. Barnes, 5 Maddock 90. The appointment of an executor in India, constitutes him agent for the management of the estate. Poole vs. Larkins, 4 Vesey, 75 ; Cockerell vs. Baker, 2 Russell, 588. The act of 1745, recognizes the principle of additional compensation to executors, beyond commissions. Logan vs. Logan, 1 M‘Cord’s Chancery, 5. As to the rule of guardian and ward, that applies where a gift is required as a condition of accounting. 1 Maddock’s Chancery, 123 The parties being of full age, are prima facia bound by their contracts The inquiry is, has any supposed influence which an attorney has over a client, 'been used to his prejudice. Ervin vs. Miles, 1 M‘Cord’s Chancery, 547.
    Siegling’s conduct fair — no charge of misrepresentation — no over anxiety to tako charge of the estate, as proved by his letters to Dr. B. B. Simons, named eo-executor in the will, who declined to quality.
    Filed 21st March, 1837.
   The case depends on testimony, and we are satisfied with the conclusion of the chancellor. The decree is affirmed. Parties to pay their own costs.

WILLIAM HARPER,

DAVID JOHNSON,

I doubt as to the $1000 ; but concur on the other points.

J. JOHNSTbN,  