
    *Cavendish v. Fleming.
    Friday, March 20th, 1812.
    1. Executors—Liability for Debts of Estate.—An execu tor is not to he charged with the debts due to the. estate of his testator, at the time when they became due, hut only at the time when he actually received them; except such debts as are lost by his negligence or improper conduct.
    2. Same—Account—Effect as Evidence.—An executor’s account, rendered on oath is prima facie evidence of the sums received by him for the estate of his testator, and of the times when received.
    Same—Intereston Actual Receipts.—An executor, except as to debts lost by his negligence or improper conduct, is chargeable with interest only, on his actual receipts; and, generally, where interest is charged, the rule established in the case of Granberry v. Granberry, 1 Wash. 219, ought to he observed.
    
      4. Same — Interest on Legacies. — An executor is not chargeable with interest on a legacy payable to an infant, before a guardian has been appointed, and he has received notice of such appointment,
    
      5. Same — When Not Charged with Loss of Debt.— Under what circumstances an executor is not to be charged with the loss of a debt, contracted with him on behalf of the estate of his testator, or for a loss incurred by his entrusting an agent with bon ds for collection.
    6. Same — Compensation—Commission—Ten Per Cen-tum. — An executor may reasonably be allowed a commission of ten per centum on moneys received by him, where the debts were very small and numerous, and the debtors presumed to have been much dispersed.
    See Fitzgerald, Executor of Jones, v. Jones, 1 Munf. p. 150, and Triplett’s Executors v. Jame-son, 2 Munf. 243.
    Francis Mara, of Greenbrier County, who died in the year 1791, bequeathed his property to be equally divided between his widow Hannah, and his daughter Margaret; appointing the widow executrix, and William H. Cavendish executor. Thomas Fleming intermarried with the widow, and claiming also as guardian of the daughter, filed a bill in the Superior Court of Chancery, for the Staunton District, against Cavendish, for an account and distribution; alleging that his wife, the executrix, had never acted, and that the executor was responsible for the whole estate.
    Cavendish answered, in part, denying such sole responsibility; but declaring his willingness to render a fair account; stating too, that he was not informed of the plaintiff’s authority to receive the daughter’s part, until 180S.
    The plaintiff replied generally, and an account was directed. The Commissioner made a report, to which the defendant filed sundry exceptions. In the account stated by the Commissioner, the defendant was charged with all the debts due on the testator’s books, and with the whole amount of the sales of a store of goods, and all the other property, as becoming due on the 1st of October, *1792; “at which time it was presumed the money arising from the sale of the estate was all due;” and from that day interest was charged on the total sum; all subsequent payments by the executor were applied in the first place to the discharge of interest; and interest was continued on whatever surplus of principal was left.
    One Hutcheson was indebted to the testator in 91. Os. 4d. He purchased from the executor, articles to the amount of 71. 9s. Id. : he also received from the executor, two bonds for property sold, amounting to 461. Is. 4Md. for collection, and executed a mortgage for the whole amount; but it turned out, that there was a prior mortgage and the debt was lost by insolvency. The Commissioner, although he had charged the defendant with all the debts, refused to credit these sums.
    He likewise refused to credit 141. 6s. 9d., the amount of three small purchases by Edward M’Kinstry, Isaac Reanry, and Abraham Thompson. The first was (as the exception states) to have given bond the next day after the sale, but absconded that night: the other two entered in the western army before any suit could be instituted.
    The defendant claimed credit for certain book debts included in the charges made against him: but the Commissioner being of opinion, that those debts had, in all probability, been collected, refused the allowance.
    He would not allow tbe defendant 41. 12s. 3d., for the amount of a note of one James Boyer, which the defendant thought could not be made, and therefore did not sue.
    He allowed only five per cent, commission for the trouble of collection, and responsibility for all the claims and debts; notwithstanding they were numerous and small, and the debtors probably much dispersed at the time of collection.
    On all these points, except the mode of charging interest, the defendant excepted formally. And, at the hearing he tendered an additional exception; viz. “that the account was not taken, or the interest charged agreeably *to the rules laid down by the Court of Appeals in the case of Granberry v. Gran-berry, 1st Washington.” This exception was not received by the Court, because, “1st. It had not been offered in due time, agreeably to the rules of Court;” and, 2d. “Because the Court considered this a case in which all the moneys belonging to the estate were either in the hands of the executor before interest was charged against him, or of debtors who were properly chargeable with interest.”
    The Chancellor sustained the exception as to the 91. 0s. 4d. part of Hutcheson’s mortgage; allowed ten per cent, commission ; and, overruling all the other exceptions, decreed the balance to be paid to the plaintiff, including the infant’s part; without annexing a condition, that a bond should be given for refunding in the event of debts arising to charge the estate.
    From this decree the defendant appealed.
    Mr. Botts, who was counsel for the appellant, being dead,
    Williams, on his behalf, submitted the following points:
    1st. That if the defendant is taken to have admitted the authority of the plaintiff to receive the infant’s part, the chancellor, who was ex officio her guardian, ought not to have hazarded the sacrifice of her fortune upon the uncertainty of the plaintiff’s authority, as to which such admission could not bind her.
    2d. That the admission of the defendant, that he had been informed of the plaintiff’s right to receive the infant’s part, was no admission of the correctness of that information.
    3d. That the ward ought to have sued by her guardian, in order that the suit might survive to her if she attained her age, or in case of the guardian’s death before it ended.
    4th. That there was error in subjecting the executor to the loss of the book-debts, without any proof that a witness existed to support a suit for any one of them.
    
      5th. That the other exceptions should have been- sustained by the chancellor.
    And 6th. That there was error in distributing the estate without directing, as a condition, that a bond for refunding should be executed.
    No counsel appeared for the appellee.
    
      
      Executors—Liability for Debts of Estate.—For the proposition that an executor or administrator is not to he charged with the debts due the estate of his testator at the time when they became due, but only at the time when he actually received them, except such debts as are lost by his negligence or improper conduct, the principal case is cited in Reitz v. Bennett, 6 W. Va. 423; Anderson v. Piercy, 20 W. Va. 324; foot-note to Southall v. Taylor, 14Gratt. 269 (containing quotation from Anderson v. Piercy, 20 W. Va. 324); Hooper v. Hooper. 32 W. Va. 541, 0 S. E. Rep. 943; Ruhlv. Berry, 47 W. Va. 824, 35 S. E. Rep. 809. See further, monographic note on "Executors and Administrators” appended to Rosser v. De-priesf, 5 Gratt. 6.
    
    
      
      Same—Interest on Actual Receipts.—See principal case cited in foot-note to Dilliard v. Tomlinson, X Munf. 183; Reitz v. Bennett, 6 W. Va. 423; M’Call v. Peachy, 3 Munf. 289.
    
    
      
       Same — Interest on Legacies. — On tbe authority of the principal case. It was held In Johnson v. Mitchell, 1 Rand. 209, 210, that where a lega,cy is left in trust and the trustee refuses to act, the executor Is not bound to pay the legacy until a new trustee Is appointed by the court of chancery, and Is not •chargeable with interest, before the decree. See further, monographic note on “Legacies and Devises’’ appended to Early v. Early, Gilm. 124.
    
    
      
       Same — Compensation—Commissions Ten Per Cent. — An executor may reasonably be allowed a commission of ten per cent, on moneys received by him, where the debts are very small and numerous and the debtors presumed to have been much dispersed. Beecher v. Foster, 57 Va. 605, 42 S. E. Rep. 651, citing principal case on the same point. The principal case is cited in Gregory v. Parker, 87 Va. 456, 12 S. E. Rep. 801; foot-note to Fitzgerald v. Jones, 1 Munf. 150; Estill v. McClintic, 11 W. Va. 412. See further, monographic note on “Executors and Administrators” appended to Rosser v. Depriest. 5 Gratt. 6.
      
        Same — Admissions of — Admissibility as Evidence.— See Gilmer v. Baker, 24 W. Va. 87; foot-note to Cox v. Thomas, 9 Gratt. 323 (containing an excerpt from Gilmer v. Baker, 24 W. Va. 87).
    
    
      
      Note. The defendant in this exception contended, that he ought to he allowed a credit for the sum intended to he secured by Hutcheson’s mortgage, “as, from the credit before given him by the testator, and his rank in life, (he being high sheriff of the county,) there was a reasonable presumption that he might he trusted.” — Note in Original Edition.
    
   Thursday, March 10th, 1814, the president delivered the opinion of the Court.

‘ ‘The court is of opinion that the decree is erroneous in charging the executor with the debts, either old or new, due to the estate, at the time when they became due; except in those cases where the debts were lost by his negligence or improper conduct. They should have been charged to him at the time when actually received; of which his account, rendered on oath, would be prima facie evidence. The decree is also erroneous in charging the executor with interest from the time the debts became due, without any proof of their having been then received, An executor, except as to debts lost by his negligence, or improper conduct, is chargeable with interest only on his actual receipts; and, even as to the receipts, the Court sees nothing in this case to justify a more rigid rule than that established in the case of Granberry v. Granberry, in 1st Washington. The decree1 is also erroneous in not having distinguished that portion of the money which was to be paid to the appellee in right of his wife, and that which was to be paid to him as guardian of the daughter of the testator; and the Court is of opinion that, as to the latter portion, the executor is not chargeable with interest, except from the time when the guardian was appointed, and notice thereof given to the appellant. The Court is also of opinion, that the appellant’s exception, as to the money intended to have been secured by Hutchinson’s mortgage in the proceedings mentioned, should have been wholly ^sustained.* It approves the allowance of a commission of ten per centum under the particular circumstances of this case, where the debts were very small and numerous, and the debtors presumed to have been much dispersed. And (without deciding on any other point, as before stated) it is decreed and ordered, that the said decree be reversed and annulled, and that the appellee pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered, that the cause be remanded to the said Court of Chancery, to be finally proceeded in, according to the principles now declared.” 
      
       Dillard v. Tomlinson, 1 Munf. 183.
     
      
       Dillard v. Tomlinson, 1 Munf. 183.
     