
    Richmond.
    Rosser ex'or of Wood v. Depriest & als.
    
    (Absent Cabell, P. and Daniel, J.)
    1. An ex’or sells a slave belonging to his testator’s estate, the sale not being necessary to the payment of debts, and he repurchases the slave, and thereafter holds him as his own. Held: The slave is the property of the estate; and the ex’or shall account for his annual hires, with interest thereon; though he was not in fact hired out by the ex’or, but was kept in his own employment.
    2. An ex’or takes bonds for purchases made at a sale by himself of testator’s personal property, and it does not appear when these bonds were paid off: he will be charged with the principal of the bonds in the year when they fell due, but with interest thereon only from the end of that year.
    
      Edmund Wood died in 1823. By his will, which was admitted to probat in the County Court of Campbell in December 1823, he devised and bequeathed his land and slaves specifically among his children ; disposing of all his slaves but one negro man named Squire. The share of his daughter Mrs. Martha Depriest, he gave in trust to John Rosser for the separate use of Mrs. Depriest and her children ; and he appointed Rosser his executor, who qualified as such in December 1823.
    The property specifically devised seems to have been divided according to the directions of the will. Rosser retained the boy Squire in his possession until May 1825, when he offered him at public auction, and he was knocked out to a slave trader; and on the same day Rosser repurchased him, and held him afterwards as his own property. At the time of the sale, or at auy time afterwards, it was not necessary to the payment of the debts of the testator.
    
      The executor never having settled an account of his administration, Mrs. Depriest and her children filed their bill against him in 1835, in the Circuit Court of • Campbell, seeking for a settlement of his administration accounts, and also an account of the trust fund in his hands ; and claiming that the boy Squire was a part of the estate of Edmund Wood, in which they were entitled to share.
    The executor answered the bill, professing his readiness to settle his accounts, but insisting that he had fairly sold the boy Squire, and' had afterwards purchased him from the first purchaser, and had ever since held him as his own property.
    The accounts were referred to a commissioner, who returned a report, to which both parties excepted. It appeared that the bonds taken at the sale of the personal property by the executor, fell due on the 8th of January 1825; and there being no evidence before the commissioner to shew when they were collected, he brought them into the account at the time they fell due, and charged interest thereon from that time. To this charge the defendant excepted. The plaintiffs excepted to the report, because the commissioner charged the executor with the price at which the boy Squire was sold, and omitted to charge him with reasonable hires for the boy, and interest thereon.
    When the cause came on to be heard, the Court overruled the defendant’s exception, and sustained that of the plaintiffs, so far as to set aside the sale of the slave Squire, and hold the executor liable for reasonable hires for him, but not for interest thereon ; and a decree was made recommitting the report, and directing a sale of the slave Squire for the purpose of a division among the distributees of Edmund Wood. From this decree Rosser applied for and obtained an appeal to this Court.
    
      The cause was argued by Cooke, for the appellant, and Grattan, for the appellees.
    
      
       Judge Daniel had been counsel in the cause in the Court below.
    
   Baldwin, J.

delivered the opinion of the Court.

The appellant’s sale and repurchase of the slave Squire, belonging to his testator’s estate and undisposed of by his will, gave him no title to said slave ; such sale having been unnecessary for the payment of debts due from the estate; and the law therefore making it the duty of the executor to reserve him in kind for the distributees. The accountability of the appellant for said slave is consequently the same as if such sale had not been made, and he is bound to surrender him for distribution, and to account for hires, and for interest thereupon, in like manner as if he had hired him out and collected the hires. There is therefore no error in so much of the decree of the Circuit Court as directs the sale of said slave by a commissioner, with the view of distributing the proceeds thereof amongst the appellees entitled thereto, and as holds the appellant chargeable with such hires from the time of his qualification until such sale shall be made. But the decree is erroneous, to the prejudice of the appellees, in exonerating the appellant from accountability for interest on the hires, instead of directing that in the settlement of his accounts the hires of said slave shall be debited to the executor in the respective years in which they should have fallen due, so as to affect the annual balances upon which interest is allowed. And the said decree is erroneous, to the prejudice of the appellant, in not directing the executor, instead of being debited with interest as well as principal on the sale notes from the time they fell due, to be debited with the principal only of said notes in the year when they fell due, without interest, except such as is allowed on the annual balances. It is therefore ordered and decreed, that so much of the decree of the Circuit Court as is above declared to be erroneous, tvhether to the prejudice of the appellant or the appellees, be reversed and annulled: And that the appellees, as the parties substantially prevailing, recover against the appellant their costs by them in this Court expended in the defence of this appeal. And the cause is remanded, &c.  