
    M’Call v. Peachy’s Administrator.
    Monday, Jan. 25th, 1812.
    1. Executors — Sale ot Perishable Property — Discretion. —In determining' which of the goods and chattels of a testator, or intestate, shall be sold, “as liable to perish, consume, or be the worse for using or keeping,” some latitude of discretion must be allowed to the executor or administrator; and his conduct appearing to be fair, and, probably, proceeding from a good intention, ought to be sanctioned by a Court of equity.
    2. Administrator c. t. a. — Powers of. — An administrator, with the will annexed, has, in general, the same powers which, under the will, the executors would have had, if they had qualified.
    3. Executors — Power to Lease Lands. — where a testator directs the moneys arising from certain sources (among which are the rents oi his lands) to be placed out at interest, his executor is impliedly authorized to make leases of such lands, not already occupied by tenants, as are not necessary to be reserved for cultivation by the testator’s own slaves.
    4. Same — Investments — Loan-Office Securities. — A. testator, by directing certain moneys to be placed out at interest, upon good and sufficient securities, in Virginia or Maryland, as his executors should think proper, authorized them to invest the same in loan-office certificates, or other public securities.
    5. Same — Changing Bonds — Liability.—I f an executor be authorized, by the will, to put certain moneys out at interest, his changing the bonds, shifting the debts, or applying moneys to his own use, or that of his friends, without any fraudulent design, is no reason for charging him to the amount, in specie, for so much paper money received.
    
      6. Same — Same—Same.—In such case, it being important that the moneys should be always kept at interest, which could, perhaps, be better effected "by changing- the bonds, than by receiving the money from one man, and seeking for another to ■whom to lend it, the executor should not be liable In case of insolvencies, unless the change was made injudiciously, or from fraudulent motives; and, as to any moneys actually converted by him to his own use, or lent to his friends, without security, he should be chargeable with the value thereof, at the times, respectively, when it was so converted or lent; provided, that in all such cases of loans without security, if the borrower, and also the executor himself, (who, in that case, stands in the place of a security,) were sufficiently adequate and responsible, at the time, for the sums so lent as aforesaid, (of which competency the subsequent repayment of the money should be deemed conclusive evidence,) the foregoing rule ought not to apply; but. in such cases, they should be considered as on a common footing with other borrowers, and the account be taken accordingly.
    7. Same — Assumption of Debts of Others Due Bstate— Effect. — in all cases in which an executor or administrator has debited himself with, or assumed, the debts of others to the estate of his testator or intestate, the same ought to be considered as a payment by them to him, and carried to the account of paper money, or specie, as the case maybe; and if, in any case, such debts were not due at the time the same were debited or assumed as aforesaid, the said executor or administrator should be charged only as at the time when the same became payable.
    8. Same — Inventory—Omission of Credits — Effect.—An executor or administrator omitting to insert in the inventory certain credits belonging to the estate of the testator or intestate, is not to be charged, on that account, with more than shall be proved to have been received by him, or to have been lost by his negligence.
    9. Same — Credits—Deductions from Accounts of Testator. — An executor or administrator may, with propriety, be credited for deductions made by him from accounts left by his testator or intestate for collection; if it appear that the charges in those accounts were unusually extravagant, and it be not proved that, in making such deductions, he acted fraudulently or disadvantageously for the estate.
    10. Same — Same—Paper Money. — in general, an executor or administrator should not be debited or credited with the value of paper money at the times when received or paid away by him; unless it be proved that he received it unnecessarily, or improperly delayed paying it away to those entitled to it.
    See 1 Wash. 248; and 2 Call, 100. But the account of debits and credits should be stated in paper money, and the balance scaled at the time of the last payment; which balance, turned into specie, should be carried to the subsequent account in specie.
    See also Walker’s executors v. Walker, 2 Wash. 195, 200; Sallee v. Yates and wife, 1 Wash. 226, 227.
    11. Same — Charges—Tobacco Received by Executor.— An executor, or administrator, is not chargeable, specifically, with tobacco received by him, and not disbursed on account of his testator’s estate; but only with the price actually received for such tobacco, where that can be ascertained; and, where not, with the then current value thereof.
    i*. Same — Ex Parte Settlement — Bill to Surcharge-Presumption as to Vouchers. — Where an ex parte settlement of an administration account has taken place before commissioners appointed by the Court, in which the executor, or administrator, qualified; if the legatees, afterwards, bring a suit in Chancery for a new examination and settlement of such account, the vouchers in support thereof, if they be not ostensible, should be presumed to have existed, and the onus probandi thrown on the adverse party.
    13. Same — Same—Same—Production of Vouchers.— But, it seems, the executor, or administrator, may be required to produce the vouchers, unless he declare on oath, or otherwise prove, that they were deposited with the clerk of such Court, at, or after examination of the account by the commissioners, and have not come to his possession since.
    — Same Vouchers. — in such case, if the vouchers, or official copies of them, be produced, the plaintiffs may, nevertheless, controvert the articles intended to be justified by them. An article ought to be allowed, on the oath of the defendant, if it be of of such a nature that the expense, probably, must have been incurred, or that, perhaps, a voucher for it could not have been procured: for example, mourning for the widow, midwife’s fees, services performed by a negro carpenter, and the like.
    15. Same — Wearing Apparel of Testator — Liability for.— The executor ought not to be charged, at the suit of a general residuary legatee, with the wearing apparel of the testator, if the same be not proved to have been converted to his use, and a sale of it was not necessary for payment of debts or legacies.
    16. Same — When Chargeable with Interest. — An executor, or administrator, is chargeable with interest, in all cases where he has received it; and, also, where paper money or«specie, remained in his hands more than a reasonable time, (which, in this case, was said to be six months,) without being applied to the purposes of the estate.
    See Cavendish v. Fleming, 3 Munf. p. 198.
    17. Same — Compensation—Commission—Ten Per Cent. —In this case, under circumstances of extraordinary trouble attendant on the administration, the administrator was allowed a commission of ten per centum on all specie received by him, in full satisfaction for receiving, putting out, and paying away the same: as, also, for his trouble and services in the administration and management of the estate; such commission to be allowed only once, on receiving the same sum of money: and, as to the paper money, a commission was allowed of five per centum on the value thereof when received, and the same on the value thereof when paid away, according to the legal scale of depreciation.
    See Fitzgerald, executor of Jones, v. Jones, 1 Munf. 150; and Cavendish v. Fleming, 3 Munf. 198.
    Catharine Flood M’Cáll, as one of the legatees and devisees, sister and heir at law of the other devisee *and legatee, and now sole heiress at law of Doctor Nicholas Flood, deceased, filed her bill in the late high Court of Chancery against William Peachy, Le Eoy Peachy, and Elizabeth Flood, administrators, with the will annexed, of the said decedent; for an account of their administration; *complaining of ex parte settlements, before the Court of Richmond county, (which granted the letters of administration,) by William Peachy, the principal acting administrator, of various errors, omissions, &c., in such settlements, and improper conduct in the administration and management of the estate; calling for accounts, discovery, and general relief.
    The defendants severally filed their answers. William Peachy relied upon his settlements made before commissioners, under orders of the county Court; contending that they exhibited a true account of his administration of the estate, and of every thing which came to his hands, except what he had delivered to the plaintiff, or her father, who was her agent; admitting that, when he returned his inventory of the- personal estate, he failed to state therein the credits due the testator at the time of his death, bceause the same were not then ascertained; but averring that all such credits have been, in different ways, accounted for in his administration accounts, or delivered to the complainant through her father; that the said accounts show all the money he ever received from those credits, or on any other account, for the estate; and that he is ready to produce a book containing the account of sales, if required by the Court. This defendant averred, also, that he had delivered to the plaintiff the books and papers belonging to the estate; that his trouble and' expense in performing the duties of administrator had been uncommonly great, &c. Fe Roy Peachy states, that he settled his account with William, having acted very little, except in collecting credits put into his hands by William, and declares his firm belief in the truth and correctness of William’s answer. Elizabeth Flood refers, in general, to William Peachy’s answer, and supports it by sundry circumstances within her knowledge.
    To these answers the plaintiff replied generally, and a number of depositions were taken.
    The cause came on to be heard the 15th of March, 1792, on the bill, the answers, the last will and testament of Nicholas Flood,* and other exhibits, and the examination of witnesses; when the late Chancellor Wythe *pronounced the following opinion and decree: “The goods and chattels of a testator, or intestate, which his executor or administrator is required by act of general assembly to sell, being therein described b3' terms so indefinite, namely, ‘such as are or may be liable to perish, consume, or be the worse for using or keeping;’ to distinguish those which he ought not to sell, from the others, seemeth difficult. The sale of the testator’s goods and chattels, in this case, having been fairly made, and probably made in order to prevent damage and spoil, (the danger whereof seemeth to have been apprehended not without cause,) and made before probat of the testament, which forbid the sale of some of them, and before the defendants knew that the testament could be admitted to be proved; and the probat appearing to the Court to have been deferred for the reasons explained by the answer of the defendant, William Peachy, and the exhibits to which he referreth for that purpose, and not for the reasons suspected by the plaintiff; the Court is of opinion that the defendants, in these circumstances, are accountable for the goods and chattels of the testator, not comprehended in the afore-mentioned description, sold by them, (if such were sold,) not farther, nor otherwise, than if they had been so comprehended ; certain slaves hereafter mentioned to have been unwarrantably sold, and the goods retained by the defendants, William Peachy and Ee Roy Peachy, being, however, understood to be excepted. The *Court is also of opinion, that the part of the said Nicholas Flood’s testament, which declared his will and desire to be that the moneys arising from several enumerated sources, (among which is rents of his lands,) should be placed out at interest, would impliedly have authorized his executors, if they had been nominated, and had undertaken the office, to make leases of such lands, not before occupied by tenants, as were not necessary to be reserved for cultivation by his own slaves; and that the defendants, his administrators, with that testament annexed, had the same authority to make those leases. The Court is also of opinion, that the sale of the testator’s slaves, Adam, Will, Sam, Adam, and Robin, was either warrantable, because the defendants had the power to sell, declared by the testament to be given to the executors of it, (and in that was implied a power, as is supposed, to distinguish those slaves whom the testator, by particular characters, had destined to sale,) or because, if the administrators had not those powers, a Court of equity, upon application, would have directed a sale of such slaves, and, probably, by the administrators: and the Court ought to sanction an act after it is done, if it be done fairly, (the contrary whereof is not proved, nor presumable, in this case,) which act the same Court would previously hsve authorized; especially as the circumstances of the country, at the time of this transaction, were such, that no precedent authority could have been obtained. But the Court is of opinion, that the sale of the slaves, .Tames, Winny, and Mimah, with Beck and Betty, the children of the two latter, was unwarrantable, and ought not to be ratified, because to neither of them is any character by which the saleable slaves were designated applicable, nor was the sale of slaves necessary for payment of debts; so that the defendants neither had, nor could have obtained, authority to sell those slaves; and he, by whose act, without authority, another suffereth loss, although a benefit may have been designed by the agent, is strictly bound to make reparation ; and, therefore, whatever may have been the defendants’ motives for *selling those-slaves, they are accountable for the value of them, in the same manner as if they had remained unsold ; their value to be ascertained by the appraisement, if it cannot be more truly done otherwise. The Court is also of opinion, that the defendant, William Peachy, remaineth chargeable with the money due from him to the testator on the medical account; and that the defendants, William Peachy, and Le Roy Peachy, are accountable for the goods of the testator retained by them, not as goods sold, but as goods converted to their own use, to be estimated in the same manner as the slaves sold without authority; but that the defendants, although they omitted the credits which the law required them to insert in the inventory, are not chargeable with more on that account than those which shall be proved to have been received by them, or to have been lost by their negligence. And the Court is also of opinion, that the defendants are not bound to make reparation for any loss which the plaintiff may have sustained by their buying loan-office certificates, and other public securities, with the ready money left by the testator, and with the money collected and received for his outstanding debts, for the rents of his lands, and for those sales of his estate which are before mentioned to be not wrongful; because the executors, (as is conceived,) by the declaration of the testator’s will and desire, ‘that such moneys should be placed out at interest, upon good and sufficient securities, in Virginia or Maryland, as his executors should think proper,’ would have been empowered to place out the money in such certificates and public securities; and that power is supposed to have devolved on the administrators, who do not appear, in exercising it, to have practised or meditated any fraud. And the Court doth direct accounts between the parties, according to the foregoing opinion, to be made up before James Campbell, Buke Wheeler, William Barks-dale, James Freeland, and Alexander Horsburgh, gentlemen, to be by them, or any three of them, examined, stated, and reported to the Court; allowing to the defendant, William Peachy, a compensation *for his services in the administration and management of the testator’s estate; and stating, specially, matters thought proper by themselves, or required by the parties: and the said commissioners are empowered to examine the parties in solemn manner relative to the subject matters of reference.”
    Three of the commissioners appointed, reported the accounts; to which both parties filed exceptions; and, on the 17th of March, 1794, the cause (having abated as to Be Roy Peachy and Elizabeth Flood, by their deaths) came on to be reheard; when the Chancellor retained his opinion delivered at the former hearing, and, setting aside the report, referred the matters, before referred, to Master Commissioner Dunscomb, with an instruction to perform the order according to the directions thereof, and according to the following additional opinion and directions; viz. “that the defendant, William Peachy, be required to produce the book mentioned in his answer, containing accounts of sales of the estate of Nicholas Flood, if the plaintiffs demand it; by which, compared with the inventory, may be discovered whether the administrators had fully accounted for the estate, or not. The vouchers for articles in the defendants, William Peachy, accounts of administration, shall be presumed to have existed, if they be now not ostensible; but let him be required to produce them, unless he shall declare upon oath, or otherwise prove, that they were deposited with the clerk of the County Court, at, or after examination of the accounts by the Commissioners appointed for that purpose, and have not come to his possession since: if the vouchers, or official copies of them, be produced, the plaintiff may nevertheless controvert the articles intended to be justified by them : an article ought to be allowed on the oath of the defendant, William Peachy, if it be of such a nature that the expense, probably, must have been incurred, or that a voucher for it, perhaps, could not have been procured: for example, mourning of Elizabeth Flood, midwife’s fees, services performed by William *Peachy’s carpenter, and the like. The Court is of opinion, he is not entitled to commission for receiving and putting out the same capital money more than, ones. The defendant, William Peachy, ought not to have credit against the estate of Nicholas Flood, for the levies, taxes, and clergyman’s salary, paid on account of that part of the estate •which was devised and bequeathed 'to Elizabeth Flood. Let an account of tobacco articles be stated, in that commodity, without extending the price of them in money.”
    From this decree, as well as that of March lSth, 1792, both parties appealed; consenting and desiring that the cause, in the present state of it, should be sent up to the Court of Appeals, for the sake of despatch, and to prevent unnecessary expense. In October, 1797, the Court of Appeals decided, that the decrees being interlocutory, this Court had no jurisdiction, notwithstanding the consent of parties;  and, therefore, the appeal was premature. The cause was sent back to the Court of Chancery, to be there proceeded in to a final decree; but, in pursuance of a provision in the 2d section of the Act of Assembly, “enlarging the right of appeal in certain cases,” (passed the 23d of January, 1798,  it was not retained for trial in that Court; a certificate whereof from the clerk of said Court being produced, on Monday, the 30th of April, 1798, the appeal was ordered to be placed again on the docket of this Court. And, on the 21st of May, 1798, the Court of Appeals pronounced the following opinion: “It appears by the will of Dr. Nicholas Flood, filed among the exhibits in this cause, that it was his desire his widow should live in ease and quiet, and, as he expressed it, “as happy as possible;” and that his executors should have as little trouble as possible in the management of his estate; and that his knowing (as it may be reasonably' supposed) the turbulent and vicious dispositions of his slaves, was the reason of his empowering his executors to dispose of such of them as were, or should prove, roguish, runaways, obstinate, *or irreclaimable, lest, contrary to his intent and meaning, they should disturb the peace and happiness of his widow, or give trouble to his executors; confiding in his executors, and trusting to their discretion alone in that respect; and it appearing, from the testimony of witnesses, as well as from the answer of the widow, Elizabeth Flood, that all the slaves sold by the appellee, William Peachy, as administrator, were of that description, except two young children, who could not, with humanity, (and ought not, on that account, to) have been separated from their mothers; and that the said slaves were sold, not only with the consent, but at the express desire and request of the said widow; and no fraud appearing in the conduct of the appellee, William Peachy, this Court is of opinion that the said appellee should not account for, or be chargeable with, more than the real amount of the sales, and what he actually received for the slaves so sold from the purchasers, unless any part of the purchase money hath been lost by his negligence. That the appéllee, William Peachy, as well on account of the great and unusual trouble he had in settling the accounts, collecting the debts, superintending the*estate, and managing the aifairs of the testator, as for the extraordinary expense it appears he was put to in employing clerks and agents to assist him, and entertaining them and others while transacting the said business, ought to be allowed a commission often per cent., and no more, on the money received by him for the use of the estate, including debts,, sales, and profits, in full satisfaction for receiving, putting out, and paying away the said money, and for his services in the administration and management of the testator’s estate; but he is not to be allowed a commission for receiving and putting out the same capital money more than once; and only five per cent, on paper money, at the value thereof when received, and five per cent, on the value thereof, according to the scale, when put out or paid away. That an account of the tobacco^ should be stated in that commodity, as directed by K'the decree of the 17th day of March, 1794; but that another account of the tobacco should also be stated, and extended in money, at the prices current at the dates of the items, for the information of the Court of Chancery. That the said decrees, so far as the same differ from the foregoing opinion of this Court, are erroneous; and that there is no error in trie other parts of the said decrees. Therefore, it is decreed and ordered, that such parts of the said decrees as are herein before stated to be erroneous, be reversed and annulled, and that the residue be affirmed; and it is ordered that the cause be remanded to the said High Court of Chancery, to be proceeded in according to the principles ot this decree.”
    The Court of Chancery, accordingly, referred the accounts to master Commissioner Dunscomb, who made a report, to which the plaintiff filed twenty-one exceptions; whereupon, the Chancellor, understanding the opinion and decree of the Court of Appeals differently from the Commissioner, transmitted the said report to master Commissioner Hay, with instructions to report the accounts, and to attend to certain animadversions on the plaintiff’s exceptions; the most important of which laid down, in substance, the following rules for tne Commissioner.
    1. That the administrator is understood to be responsible for the value of the money, when received by him, if, when he placed it out, he took no security, or if he did not place it out within a reasonable time after the receipt; and to be responsible for any of the testator’s debts, where he appears to have exacted or collected them for his own use.
    2. The defendant is to have credit for money laid out in purchasing loan-office certificates, according to its value at the time when it was laid out.
    3. The accounts should not be so ordered as to make the depreciation of moneys collected by the administrator from those in whose hands the same were placed by Doctor Flood, in his lifetime, and not laid out by the administrator, ^either agreeably to the will, or as the law directs in such cases, fall on the plaintiff, instead of falling on the defendant.
    4. The Commissioner ought not to debit the estate with purchases of provisions for .the use of persons who boarded, with the widow.
    5. Certain articles charged . to the estate of the deceased, but appearing to have been purchased for the use of Mrs, Flood, and her family, ought to be apportioned between the widow and the plaintiff. .
    6. William Peachy should be charged with the debts assumed by .him for others, in like manner as he is directed to be charged with his own, and for the goods taken by him for his own. use.
    7. If, by changing debts, loss has arisen, William Peachy, and not the plaintiff, must sustain the loss.
    8. The defendant must be debited with the wearing apparel of the testator, appraised at 661. 11s., if the plaintiff insists ■upon it.
    9. Elizabeth Flood being herself an ad-■ministratrix, and entitled, under the will, to one half of the interest on the testator’s cutstanding credits, the Commissioner cught not to allow, William Peachy a commission on that half of said interest, and charge it against the estate of the testator.
    10. The Commissioner may allow the defendant travelling expenses, when on business for the estate, beside his .commissions.
    . A report was made by master Commissioner Hay, to which voluminous exceptions were taken by ' both parties: after which, the cause having been sent to Wil-liamsburgh, in. July, 1802, under the Act of Assembly, concerning the High Court of Chancery ; having abated as to William Peachy, by . his death, and then revived against John Nicholson, his administrator, at July term, 1804, the following opinion and decree were pronounced by Chancellor Tyler.
    “This Court, understanding the opinion and decree of *the Court of Appeals differently from master Commissioner Hay, doth set aside -his report, and direct, that examination, statement, and settlement of all accounts between the parties be made by . master Commissioner Coleman, upon the principles settled by the opinion and decree of- the Court of Appeals, as herein after explained.
    .. ‘ ‘The Commissioner was expressly directed by that decree to state an account of tobacco in that commodity; and that another account of the tobacco should be stated, and extended in money, at the prices current at. the dates of the items, for the information of the Court of Chancery. In the execution of the latter part of this clause, the Commissioner wholly failed; the performance of which is indispensable.
    “The clauses in the will of. Doctor Nicholas Flood, providing for his widow, are differently understood by Commissioner Hay from this Court. Upon this subject, this Court is of opinion his will should receive a liberal interpretation; that the pork, or other necessaries for housekeeping, provided or laid in by the administrator, William Peachy, in due time, (as they ought to have been,) for the widow, were proper charges against the estate of the testator; .that if pork, or other necessaries for housekeeping, were not raised in plenty, from the cultivation of the lands, for the use pf Mrs. Flood, and her family, and in due time, it was the duty of William Peachy to have provided them. If her interest money was to be applied to the purchase of pork, or other necessaries, this fund could not exclusively go to her “further and better support.” This Court is also of opinion, that the new goods left by the testator, as far as they were proper, and as long as they lasted, were to furnish Mrs. Flood with her clothing, and that of her servants; and that if (as has been proved) the widow has not received her reasonable proportion, she is entitled to an adequate allowance for the same; which would, to its amount, be -a good charge against the estate, if the administrator, William *Peachy, is made accountable for the whole amount of the sales of these goods. This Court would also reject any charge against the widow, or either of the administrators, for the wearing apparel of the testator; the same not having been proved to have been converted to their use, or to the use of either; and a sale of it being unnecessary for the payment of debts or legacies; and because the decree of the Court of Appeals doth not say that William Peachy shall be so chargeable, as that Court-might have done, and, it is presumed, would have done, as'well in this case as in the cases of the medical account, and the new goods converted to their use.
    “This Court is also of opinion, that no charge should be raised against the administrator, William Peachy, for any deductions he has made in the settlement of the medical accounts of the testator; as in the cases of Muse, and Burgess Ball; because, in some instances, the testator so acted himself; (his accounts were unusually extravagant, because of the general conduct of juries toward such accounts, when put in suit;) and because the administrator is not proved to have acted fraudulently, or even disadvantageously, in th’ese instances, towards the estate. .
    “This Court is also of opinion, that master Commissioner Hay hath not permitted that clause in the decree of the High Court of Chancery, affirmed in this respect by the Court of Appeals, to have its due operation; namely, that vouchers for the articles in the said William Peachy’s accounts of administration, shall be presumed to have existed, if they be not now ostensible,” &c. For example; in the Commissioner’s settlement of Cyrus Griffin’s bill of exchange, he hath added fifteen per cent, to the rate of exchange, as stated by the administrator; and in other charges which he has made in the administration account, as settled by the Commissioners appointed by the County Court of Richmond; and, In further violation of this principle, by antedating many of the entries of debits against the administrator, without the *fact of the dates of these entries being controverted by the plaintiff, and differently established by proof.
    “The principle adopted by the commissioner, of making the administrator, Wil-liara Peachy, answerable for the value of all moneys, when received, by the scale of depreciation, and crediting him by the value when paid away, or invested in loan-office certificates by the scale, is disapproved by this Court, as being in violation of the decree of the High Court of Chancery, in this respect, affirmed by the decree of the Court of Appeals. 'The decree affirmed bj' the Court of Appeals states, that the administrators are not bound to make reparation for any loss the plaintiff may have sustained by the administrators buying loan-office certificates with the money left by the testator, or money arising to the estate from other enumerated sources. This Court is of opinion that, under this clause in that decree, the administrators are entitled to credit for the nominal amount of the loan-office certificates. The operation of the Act of Assembly, believed to be applicable to this subject, and the cases of Cranberry’s executor v. Cranberry,  and Taliaferro v. Minor,  appear to warrant the principle established by this interpretation. The decree of the Court of Appeals, if the facts appear that the administrators changed the bonds, or shifted the debts of the estate, or applied moneys to their own use, or to that of their friends, for commercial or other purposes, doth not seem to warrant charging them to the amount in specie during the existence of paper money. The exceptions of the medical account, and of the new goods converted to their own use, serve to establish the present construction of that decree. The account, from the first day of January, 1777, to the period of the latest investment of paper money in loan-office certificates, should be stated in paper money; and the balance against William Peachy should be scaled at that period ; which balance, turned into specie, will be carried to the subsequent account, in specie.
    *"The administrator, William Peachy, will be charged with interest in all cases where he has received it, and where paper money or specie remained in his hands more than a reasonable time, (stated to be six months,) without being applied to the purposes of the estate. The settlement of the tobacco account will conform, as nearly as may be, to the principles laid down for the settlement of the account in money.
    Master Commissioner Coleman is directed to report any matter, specially, thought pertinent by himself, or required by the parties, and to make all his explanatory notes at the feet of those pages which contain those items thus requiring explanation, and not in separate pages of the report : and he is requested to make his report as short, plain, and simple as possible; so that the parties, as well as the Court, may easily understand it.”
    Prom this decree an appeal was granted the plaintiff to the Court of Appeals.
    Williams and Warden, for the appellant.
    Wickham and Wirt, for the appellee.
    The cause was argued here, at great length, during the 25th, 27th, 28th, 29th, 30th, and 31st days of January, 1812.
    
      
      Executors. — See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6. See principal case cited in Harman v. M’Mullin, 85 Va. 195, 7 S. E. Rep. 349.
    
    
      
      Same — Ex Parte Settlement — BUI to Surcharge-Presumption as to Vouchers. — On a bill to surcharge and falsify, if an order be made for a new settlement, and the vouchers cannot be produced, they will be presumed to have existed especially after a great lapse of time. aBd the on-us proban&i is thrown upon the contracting party. Backhouse v. Jett, 2 Fed. Cas. 322, citing the principal case. To the same effect, the principal case was cited in Campbell v. White, 14 W. Va. 143; foot-note to Tabb v. Boyd, 4 Call 453, containing an extract from Campbell v. White, 14 W. Va. 143.
    
    
      
      Same— Compensation — Commissions.—See principal case cited on this subject in Gregory v. Parker, 87 Va. 456, 12 S. E. Rep. 801: Estill v. McClintic, 11 W. Va. 412; foot-note to Fitzgerald v. Jones, 1 Munf. 150; Wallis v. Neale, 43 W. Va. 538, 27 S. E. Rep. 231.
      Decrees — Finality.—See the principal case cited on the subject of the finality of decrees in Harvey v. Branson, 1 Leigh 124.
    
    
      
      Note. The will of Doctor Flood, which was dated in 1774, (among' other clauses,) contained the following:
      “I likewise gire and bequeath to my said wife, so long as she shall continue to be my widow, (but no longer,) the use of all my household and kitchen furniture, except such parts thereof as may he superfluous, and which my executors may choose to sell, and the use of all my plate of every kind. And it is my will and desire, that my executors, hereafter to be named, do provide, and lay in for her, yearly, (so long as she shall continue to be my widow, but no longer,) a sufficient quantity of Indian corn, wheat, beef, mutton, lamb, cider, and such other provisions for housekeeping, as can be raised on my estate, for the support of herself and her family; (she not taking in any boarders;) and that she have the benefit of all the milch cows, yearly, on my plantations, except such as my executors may think proper to keep for the use of overseers, &c. And I desire, thatall the wool whichmay be yearly produced from my sheep, may be delivered to her, and that she will have the same spun up by her house servants, or with the occasional assistance of one of thenegro women who may work out; and that it be wove and appropriated to the clothing of the slaves which are set apart for her use, as well as for clothing my other slaves; and that she have corn, fodder, hay, and pasturage for her horses; and that a sufficient quantity of firewood be carted for her use every winter. Ás this will is intended to be made exactly agreeable with, and conformable to my wife’s desire, I hope she will acquiesce therein, and abide by it, and not be persuaded to the contrary by selfish and designing persons, who may endeavour to make a property of her; and I firmly trust, that she will give my executors as little trouble as possible; and as my executors will readily perceive, that it is my sincere will and desire that my wife should be enabled to live as easy and as happy as possible, I therefore request that they will punctually comply with every part of this, my last will and testament, that is, or shall be made in her favour, as well in laying in proper provisions for her in due time, as in collecting and paying to her the moneys which I shall direct to be paid to her, yearly, and In every year, during her widowhood, for her further and better support and maintenance. Item, I give and bequeath to my said wife, my new riding chair with the bellows top, and harness for two horses; and I likewise give unto her the two horses which are employed in drawing the same. I likewise give and bequeath to her, her watch, rings, &c. Item, I give to my said wife, one third part of my wine and rum, that I may have by me at my death, and likewise all the new goods which may have been laid in for her own clothing, and a proportionable part of the clothing that is laid in for the slaves; and that she divide them according to the good behaviour of all my said slaves; those which are to be allotted to her part, coming in share, and [blank) the others. Item, it is my will and desire, that an inventory, or particular, be taken by my executors, of all my estate, soon after my death, and that another inventory, or particular, be taken of the same immediately after the death of my wife.”
      The testator (after directing certain lands, slaves, and stocks of cattle, to be sold by his executors) proceeded thus: “and all the moneys arising from the sale of the said lands, slaves, and stocks, together with all such moneys as I shall leave behind me, either in specie, or in debts dne to me, either by bonds, or by accounts, or in any other manner whatever, and likewise all such moneys as may arise by the sale of any of my slaves, that may turn out too roguish, runaways, obstinate, or irreclaimable, to be made to do their duty, (which sort of slaves I hereby empower my said executors, in their discretion, to make sale of,) and all the moneys arising from the yearly rents of my lands, the hire of my slaves, and the labour of my slaves, shall be placed out at interest upon good and sufficient securities, either in this Colony, or in Maryland, as my executors shall think proper, during the term of the natural life of my said wife; during all which said term, I give and bequeath unto my said wife, one moiety, or half part, of the interest arising from such moneys so placed out at interest, to be paid to my said wife, yearly, and in every year,” — Note in Original Edition.
      
    
    
      
       See 1 Call, 55, 62.
    
    
      
       See Rey. Code, vol. 1, p. 375.
    
    
      
       Rev. Code, vol. 1, p. te7.’
    
    
      
       1 Wash. 246.
    
    
      
       2 Call, 190.
    
   December 10th, 1812, the following opinion of this Court was delivered by

JUDGE ROANE.

“The Court is of opinion, that the general merits of this cause having been decided by the two former decrees of the Court of Chancery, affirmed, in general, by this Court, it becomes unnecessary, if not improper, to enter, at this time, upon many topics minutely discussed at the bar, as it were de novo; and which course was only rendered excusable by the difficulty of discriminating the points so decided from those now proper for the Consideration and decision of the Court; a difficulty arising from the unusual size of the record, and the obscurity and perplexity resulting from the multifarious reports and dissertations with which the cause abounds. Disclaiming, therefore, to disturb or unsettle any point or principle established by those decrees; but, on the contrary, adopting them as the basis of the decree now to be rendered, the Court proceeds to declare its opinion touching such points and principles as may be necessary finally to settle this controversy, in pursuance of the decrees aforesaid.

“The animadversions of Chancellor Wythe, of tne Sth of June, 1800, being most of them erroneous, and in conflict with the decrees aforesaid, are set aside by the Court; and the report of commissioner Hay founded thereupon, being liable to the same, and greater objections, was rightly set aside by the decree now appealed from; and a new report was properly directed to be made in lieu thereof.

“On considering the instructions of Chancellor Tyler to the commissioner, to aid him in taking the new account, and which are contained in the decree now appealed from, the Court approves and adopts the same, with the following alterations, additions, and exceptions.

“1st. The Court approves of so much of those instructions as requires the tobacco account to be also extended in money, pursuant to the decree of the Court of Appeals, and adds, that the administrator, William Peachy, is to be chargeable only for the price actually received for the tobacco not disbursed by him, where that can be ascertained, and where not, for the then current value thereof. 2dly. The Court approves of so much of the said Chancellor’s instructions as relate to the construction of Doctor Flood’s will, respecting the supplies to be furnished to his widow; and sees no cause, from any facts appearing in the record, to make any deduction on account of boarders. 3dly. The Court approves the instruction relative to the charge against the *estate for Mrs. Flood’s proportion of the new goods; and to the claim for the wearing apparel of the testator, under all the circumstances of the case. 4thly. The Court also approves of the instruction relative to the reductions in the. medical accounts, as in the cases of B. Ball and H. Muse, for the reasons assigned by the Chancellor, and particularly the last; and because that course, while it may, probably, have produced benefit to the estate, is one in which we do not perceive that the administrator could have had any interest. 5thly. The Court approves the instruction of the Chancellor relative to the principle laid down by the decree of 1794, affirmed by this Court, as to the presuming of vouchers; and without adverting to the particular examples put in the instruction in question, the Court is of opinion, that, where the vouchers are not ostensible,' the onus probandi is thrown on the adverse party, and that no change should be made in the account founded thereon, but in cases justified by satisfactory evidence; especially, considering the great lapse of time which has occurred in the present instance. 6thly. The Court approves of the instruction of the Chancellor respecting the purchase of the loan-office certificates, the receipt and payment of the paper money, and the manner of stating the accounts during the paper-money era; the same being in pursuance of the former decree of this Court, and warranted by the uniform current of decisions upon the subject. Vthly. The Court also concurs with the Chancellor as to his construction of the decree of this Court in relation to the changing of bonds, and applying the moneys of the estate, by the administrator, to. his own use, or that of his friends; and that the same ought not to be charged in specie; with this addition, that, as it was important that the moneys of the testator should be always kept at interest, which could, perhaps, be better effected by changing the bonds than by receiving the money from one man and seeking for another to whom to lend it, the administrator should not be liable, in case of insolvencies of *this description, unless the change was made injudiciously, or from fraudulent motives; and that, as to any moneys actually converted by the administrator to his own use or purposes, or lent by him to his friends, or others, without security, the said administrator should be chargeable with the value thereof, at the times respectively at which it was so converted or loaned; provided that, in all such cases of loans without security, as aforesaid, if the borrower, and also the administrator himself, (who, in that case, stands in the place of a security,) were sufficiently adequate and responsible; at the time, for the sums so loaned as aforesaid, (of which competency the subsequent repayment of the money shall be deemed conclusive evidence,) the foregoing rule shall not apply; but, in such cases, they shall be considered as on a common footing with other borrowers, and the account to be taken accordingly. 8thly. The Chancellor’s instruction as to interest is also approved.”

“In addition to the foregoing instructions of the Chancellor, modified and approved as aforesaid, the Court, for greater perspicuity and certainty, deems it proper to add the following:

‘ ‘1. That in all cases in which the administrator shall have debited himself with, or assumed, the debts of others, the same ought to be considered as a payment by them to him, and carried to the account of paper money, or specie, as the case may be; and if, in any case, such debts were not due at the time the same were debited or assumed as aforesaid, the said administrator shall be only chargeable as at the time when the same shall have become payable. 2dly. With respect to commissions; (a subject so elaborately discussed at the bar;) the Court cannot say anything more explicit, than by referring to the former decree of this Court, by which the administrator is allowed a commission of ten per centum, and no more, on all moneys received by him, in full satisfaction for receiving, putting out, and paying away the same; as, also, for his trouble and services in. the ^administration and management of the testator’s estate; provided, that a commission shall only be allowed on receiving the same capital money once; and that, as to the paper money, the commission shall be five per centum on the value of the money when received, and the same on the value thereof when paid away, according to the legal scale of depreciation. 3dly. With respect to the medical account of the administrator, William Peachy, this Court understands the decree of the Court of Chancery, affirmed by this Court, as only overruling a claim of the said William Peachy to be absolved therefrom altogether, and not as fixing any particular sum to be due by him; which, therefore, will depend upon the proofs, as in other cases: this construction is the more clear, because that decree of the Court of Chancery was rendered anterior to the exhibition of any of the accounts, in this cause, to a commissioner, and could not, therefore, have had reference to any.

“The Court has thus endeavoured to settle the great principles of this cause, and has, perhaps, repeated some which are contained in, or are evidently deducible from, the decrees formerly rendered. In doing this, they have been actuated by a desire to put an end to the present controversy; which they hope and believe may be ultimately accomplished, by means of a clear and simple report by a commissioner, and a reasonable degree of candour and acquiescence in the parties. With the same view, the Court has no hesitation in expressing its opinion to be, that, upon the whole circumstances of the case, the conduct of the acting administrator was just and unexceptionable, and that the losses incurred by the plaintiff are to be ascribed to the unexampled character of the times.

“With respect to the other objections and exceptions made in this cause, as they depended upon, and were pointed against the principles contained in Mr. Hay’s report, which has been set aside as aforesaid, and as many of them may not be taken up, or repeated, by a *future commissioner, on that ground, (exclusive of the objection of going too much into detail,) the Court deems it unnecessary to give minute and specific answers to them all: but it is proper to add, that the principles of that report are neither approved nor condemned further than is deducible from the foregoing premises; the Court only deeming it a better course to set aside the report altogether, than to attempt to reform it.

“Upon the whole, the Court affirms the decree now appealed from, with costs, with the explanations and modifications herein before mentioned and prescribed, and remands the cause to the Superior Court of Chancery, to be finally proceeded in pursuant to the principles row adopted and declared.”  