
    Robert Smith, Executor of Samuel H. Buford, deceased, vs. Justus Hurd, Isabella Hurd, and Caroline Buford.
    If a probate judge states an executor’s account in vacation, when it comes forward for allowance and confirmation in term time, exceptions may be filed to it in court; or if the account be stated by a commissioner to whom it has been referred, it may in like manner be excepted to in court, when it is presented for allowance and confirmation.
    If exceptions be taken in the probate court to a commissioner’s report of a statement of an executor’s account; and the exceptions be sustained, and an appeal taken to this court, and the evidence be not set out in the record ; this court can only consider the exceptions to items, the character of which sufficiently appears from the face of the account itself.
    An executor may be charged with interest on the balance in his hands found to he due the estate on settlement, from the date of such settlement.
    An executor is not chargeable with- a note in his hands as assets, nor with interest on such note, until it is actually collected, unless he makes himself so chargeable, by some act of gross negligence or fraud; and if he be charged with such note or interest, before the money is collected, without proof of gross negligence or fraud, it is error.
    On appeal from the probate court of Wilkinson county; Hon. Francis Gildart, judge.
    This was a petition filed in the probate court of Wilkinson •county, by Justus Hurd and Isabella his wife, and Caroline Buford, by her next friend, Justus Hurd, legatees of Samuel H. Buford, deceased, against Robert Smith, to surcharge and falsify his final account of settlement, as executor of Buford’s estate. The case has been twice before in this court.
    The previous proceedings will be found reported in 5 How. 562, and 7 lb. 188.
    At the March term, 1844, of the probate court of Wilkinson county, the mandate of the high court of errors and appeals, was received and entered on the records. The account, which had been the subject of controversy, was referred to Charles Lancaster, with full power to restate it, and in stating and settling the account, he was directed to be governed by the direction of the high court of errors and appeals.
    In November, A. D. 1844, H. H. Davis, was appointed referee to state the account, in place of Lancaster, who had departed this life.
    At the December term, A. D. 1845, Davis made his report. The account as restated by him, showed a balance due from Smith, of $1781 63, and a note, held by him, against Dil-lahunty & Johnson, for $4503, due 1st January, 1841. No exceptions were taken before the referee, but when the account as restated by him, was presented in court for allowance and confirmation, Hurd and his wife, Isabella, filed the following exceptions, to wit:
    
      “ 1st. Said plaintiffs except to the item of $250, allowed by said commissioner to said executor, on account of a fee, paid to Montgomery and Boyd, for attending to the appeal, taken from the decision of this court to the high court of errors and appeals, because the expense incurred in attending to said suit was for the benefit of said Smith, and not to promote the interest of his testator.
    “ 2d. Said plaintiffs except to the charge for fee, paid Dil-lingham and Walker, to wit; $200.
    “ 3d. Plaintiffs except to the account rendered, because said commissioner has failed to allow interest on the balance of $1781 63, from May, 1839, up to the time of stating said account.
    
      “ 4th. Plaintiffs except to said account, because said commissioner has failed to allow interest on the note of Dillahunty & Johnson, from the time it fell due, to wit: on $4503, from the 1st of January, 1841.” All of which exceptions were sustained by the court, and the clerk was ordered to correct the account in the abovementioned particulars. Whereupon Smith prayed an appeal to this court. No bill of exceptions was filed in the probate court, and the evidence therefore adduced in that court, or before the referee, does not appear in the record.
    
      Montgomery and Boyd, for appellant.
    The decision of the court below, ought to be reversed, and the account reported by the commissioner confirmed.
    1st. No objections were made before the referee, Davis, who restated the account, under the directions of the probate court, and this court. Unless all rules of practice are abandoned, and the mode of proceeding in matters of account is left to chance or accident, no one point of practice is better settled by authority, than that no exception can be heard by the court, which was not received before the commissioner to whom the account was referred. Our own rules are express on this point.
    2d. The exceptions, in detail, when examined, are frivolous. The first item objected to, was a fee of two hundred and fifty dollars, to Montgomery and Boyd, which had been paid by the appellant, for services rendered, in the two cases referred to, in the abstract of this case. This litigation is but a continuance of that. On referring to the merits, it will appear that the appellant was impleaded, and compelled to answer and employ counsel. And on the whole case he succeeded. This court expressly states, that all the difficulty arose from the fact, that the probate court had not received his account of assets, which had come to his hands, since the final settlement. He had repeatedly endeavored to obtain an allowance of this additional account, but from causes not explained, could never effect his object. The final order of this court, (7 How. 188,) directed this account to be added to the former account, and this was a decision in favor of the appellant here. Is it not clear, then, that his necessary counsel fees, in resisting an unjust claim against him, as administrator or executor, ought to be allowed out of the estate 1 There is a degree of pertinacity, in pressing the litigation, in regard to this estate, for which the record furnishes no explanation.
    3d. The next exception is answered by the preceding remarks. But there is an additional ground here, which is, that no reason, whatever, was given, in the court below, against this item.
    
      If the final settlement, relied on in 7 How. 188, did not relieve the executor from his accountability to the probate court, then he would, of course, be entitled to the charge for the ordinary expenses of his further action, as executor. This would in-elude court costs, and counsel fees.
    4th. It is not a matter of course, to charge an. executor with interest. The previous proceedings show, that he had often endeavored to have the additional items placed on his account, by the probate court. Also, that these items, one thousand seven hundred dollars, &c., were for money received in a depreciated currency, and which he had always been ready to distribute.
    Without proof of negligence, or proof of having made interest, an executor is not liable for interest.
    5 th. The note, in this exception, will bear interest from its date to its collection. After collection, if used by the executor, or not accounted for to the court, it would be the subject of interest in the hands of the executor. Now the previous proceedings show, that the note has always been regarded as assets, and is not yet collected. How could it be regarded other than it is, as a note for so much money, due at such a date 1 And to this the law will affix the interest, till it is received. After a collection, it will depend upon the circumstances before noted, whether interest will run, or not.
    
      C. P. Smith, for appellees.
    If there be any error in the record, it must exist in the judgment of the probate court, allowing the exceptions of appellees. But how is such error to be brought to the knowledge of this court ?
    It will not be denied that the probate court possessed the authority to correct any error in the report of the commissioner, appearing upon the face of it, or which by competent evidence, adduced before it, was proved to exist.
    We are also warranted in saying, that this court will presume that the court below, had before it sufficient evidence on which to base its cause or judgment, unless the contrary appears, affirmatively by the record.
    
      What is there in the record, which demonstrates to this court, that said exceptions were improperly allowed? No exception was taken to the judgment of the probate court. No evidence is contained in the record, to show that it erred. The conclusion is therefore inevitable, that no error has intervened;
    But it may be argued, that the account stated by the commissioner, shows enough to enable this court to perceive that the objections ought not to have been allowed. That the exceptions to the report of the commissioner, is predicated rather upon the assumed illegality of the objectionable items, than upon the evidence to sustain them. This supposed assumption we deny to be just. The exception extended not only to the character of the charge, but to the proof on which it rested.
    If there were no proof, the charge was unauthorized, and therefore illegal, and could not be made less improper, if illegal, by the amount of evidence. But, assuming that the report of the commissioners allowing to appellant the amounts paid to his counsel is sufficient proof that these sums had been disbursed by him, and that the question here, is, simply, whether these charges should, or should not have been allowed? Let us see whether the court below was not evidently correct.
    The proceedings in the probate court, were instituted by persons claiming rights as legatees, against the trustee or executor; not by persons asserting a right against the trust fund, in which ^case, the executor would represent the rights of the appellees. The demand established against the appellant, stands as a charge against him personally, and not against the estate in his hands. Suppose it were a suit to compel distribution, instead of a proceeding to force the executor to settle; would the latter be entitled to an allowance for the fee paid his counsel, for defending the suit ? The cases, we apprehend, are exactly analogous. Seven years ago, we commenced a suit to compel appellant to account for moneys not accounted for. He denied that he was executor, and although admitting that he had in his hands the sums charged and not accounted for, (nine or ten thousand dollars,) he denied that he was, in law or equity, compelled to pay them. For more than seven years, he has waged a legal warfare, not in our defence, but against us, and now, when evacuating his last strong hold, not content with inarching out with honor, under the indorsement of this honorable court, he insists upon being indemnified for the entire expenses of the war. This may be the confidence of honesty; but it looks very like barefaced impudence.
    But, assuming that these charges were incurred in a suit, when appellant was prosecuting the rights of Buford’s estate, instead of contesting the rights of his legatees, they were, illegal, and could not be allowed, unless upon proof, by the certificate of this court, that they were properly incurred.
    The probate court was unquestionably correct, in ordering interest to be charged on one thousand seven hundred and eighty-one dollars, and sixty-three cents. The court will perceive, by an examination of the account, that the last amount received by appellant, belonging to his testator, was in May, 1839, and the last amount disbursed, as executor, was in May of the same year. A balance then of one thousand seven hundred and eighty-one dollars and sixty-three cents, remained in his hands up to the final account, as stated by the commissioner. It will not be contested, that the probate court had a right to charge him with interest on that amount, under a certain state of things. The account, as exhibited and wholly unexplained, we think, clearly presents a case, where the executor should be charged with interest. See Davies v. Eden, 3 Dessaus. 341; Prewett v. Prewett, 266; Shieffelin v. Stewart, 1 Johns. C. R. 620. But if it does not show a case where interest should have been charged against the executor, this court is bound to presume that such a case was made out by evidence before the court below.
    It is still more obvious, that interest should have been charged on the four thousand five hundred and three dollars note, from the date of its maturity. If interest had not been charged on this note, it is sure that the executor would have gained for himself all the interest which had accrued from 1841, on this large sum. If the executor was not liable for the proceeds of this note, no part of it ought to have been charged against him. But if liable he was chargeable with interest.
    
      If he were not properly chargeable with this note, as so much money in his hands, he should have shown it, and placed upon the record the evidence which discharged him from liability. The truth is, the court below knew judicially, that the whole amount was either collected by the appellant, or in the hands of the officers of the law. At all events, this court must presume, that evidence before the probate judge, warranted the order of the court, in the absence of everything which might impeach the correctness of its decision.
    
      Montgomery and Boyd, in reply.
    1st. The referee reports that he had the parties before him, and examined testimony, &c. Now if the appellee wished to question the opinion of the referee, he should have objected to the testimony, or had it reported to the court, with the account. He could not do this, because the report was in our favor. By reserving the exception till the report came in, we are deprived of all power to get this testimony on the record, because the court would not order it taken down after the coming in of the report. Hence the finding of the referee, on evidence not now in the record, and unexcepted to at the time, must be conclusive. H. & H. 404. There is nothing to show he erred in the case.
    2d. The exceptions are of matters of law, and the court seés they were not well taken. No evidence is pretended to have been offered, and the record is certified to be a full record.
    3d. These exceptions were tried the same day they were made, and without notice, or being set down for argument.
    4th. The objection based upon section 88, page 412, H. & H. relates only to costs.
   MR. Justice Clayton

delivered the opinion of the court.

This cause has been in this court twice before. It comes up again from the judgment of the probate court, allowing certain exceptions to the report of the referee in the cause.

The appellant objects, that as there were no exceptions filed before the referee, none could afterwards be taken before the court. The appellees insist, that as the testimony has not been set out in the record, there can be no reversal, because the presumption is in favor of the decision of the court below.

If the probate judge had himself stated the account in vaca-' tion, when it came forward for allowance and confirmation in term time, exceptions might have been filed in court. H. & H. 403, sec. 66. If instead of performing this duty himself, he referred the account to a commissioner, the same consequence would follow. It is true the court of chancery has adopted a different rule, but that has no influence in the probate court. The exceptions were properly filed.

In regard to the action of the court upon the exceptions, the character of some of the items sufficiently appears, from the face of the account; but in regard to others, it could not be seen, whether the decision of the court was correct, without testimony. Of the latter kind are the charges for fees paid to counsel. There is no proof as to the nature of the services, or that they were rendered for the estate.

The charge of interest on the balance due from the Executor in May 1839, as exhibited by the settlement, was properly made. See Chilton’s Probate Court Law, 361; Jones v. Ward, 10 Yerger, 160.

The charge of interest upon the note of Dillahunty & Johnson, in the hands of the executor, and not yet collected, was not proper. He was not chargeable with the debt, nor with the interest, until he received it, unless by some act of gross negligence or fraud, he made himself liable for it. Berry v. Parke, 3 S. & M. 639. But the objection extends no farther than to the allowance of interest. There was no final order or decree in the court below, farther than to direct the clerk to make certain corrections in the report. 'í’his direction as to the charge of interest on the note was erroneous. It may be doubtful whether the cause was in a proper attitude for an appeal; but neither party having objected, we have entertained it. The order of the court below is reversed, for the error in regard to the charge of interest on the said note; but to avoid misapprehension, we state explicitly, the executor^will be chargeable with interest when collected. In other words the whole amount which may be received by him, both principal and interest, will constitute a charge against him.

The report in other respects is confirmed.

Judgment reversed and cause remanded.  