
    Callaghan against Hall.
    APPEAL by John Hall, administrator of David Calf laghan deceased, from the settlement of his administration account by the Orphan’s Court of Philadelphia county.
    On the petition of Charles Callaghan, a minor son of David, by his guardian, John Saulnier, auditors had been appointed to settle and adjust the accounts, who made the following report.
    “ We, the auditors appointed by the above rule of court, “ having heard the parties, and examined the accounts, find a “ balance of two thousand three hundred and thirty-nine dol- “ lars one cent due by John Hall, acting and surviving admi- ' “ nistrator of the estate of David Callaghan deceased, having “ previously credited the said John Hall with the sum of six “ hundred dollars forty-three cents, due by the estate of “ David Callaghan to a certain John Murphy.
    
    
      An administrator has no right to involve the estate of his intestate in the ■ risk of a mercantile adventure, by exporting the goods.
    Where a quantity of wiae belonging to the estate was shipped by the ad- ' miuistrator to the West Indies, and the net proceeds were less than the value here, he was held accountable for the difference.
    Having suffered a just debt to remain unpaid for several years, though there were assets in his hands, he was not allowed to charge the estate with the interest and costs.
    
      Held to be entitled to interest on his advances, and not chargeable with it on account of furniture which he did not use, but delivered to the widow.
    His commissions, though not allowed till the settlement of his account, to be deducted from, the balance, before interest to be computed.
    
      “ Philadelphia, December 17, 1812.
    (Signed) “ SAM’L. YORKE,
    “ PAUL BECK, jun.
    “ ROB’T. RITCHIE.”
    On motion of the respondent’s counsel, this report was referred back to the auditors, with directions to them to report the account on which it was grounded, and which was as follows:
    DR. John Hell, administrator to the of .David Callaghan. CR.
    To balance due the estate by his By amount of Mitrphy's ac-account rendered . . g 1616 86 count paid by J. Hall $ 600 43
    To difference of short credit on By balance due the estate 2339 01 sales of wine . . . 393 33
    To commission stock . .. 64 52
    2074 71
    To interest and charges on Murphy’s account, suffered by his • neglect . . , . 186 43
    2261 14
    5 years interest on this sura . 678 30
    $2939 44 8 2939 44
    To balance brought down, due from John Hall to the estate of David Callaghan . $ 2339 01
    (Signed) SAM’L. YORKE,
    PAUL BECK, jun. ROBERT RITCHIE.
    To this report four exceptions were filed in the Orphan’s Court, where, after argument, judgment was given as-follows:
    “ The court taking into consideration the report of the au- “ ditors, do order and decree, that the interest on $186 43 cts. “ amounting to $55 92 cts. be struck out of the account against “ the administrator, and that the account, amounting to the “ balance of $2283 9cts. be confirmed.”
    
      On the trial in this court it appeared that David Callaghan died in the year 1804, and after his death Hall carried on the business in which he had been engaged, which .was that of a wine-merchant, and credited the widow and children with half the commissions on consignments. The widow administered jointly with Hall, but he was the acting administrator, and she died about two years after the decease of her husband.
    The intestate left a large quantity of Fayal wine, a part of which was sold by Hall, and a part shipped to the West Indies. He credited the estate with 'the net proceeds, but the shipment was made in November, 1805, and in March, 1806, he gave an account of sales of the wine, to a friend of the widow, in which he charged himself with 4427 gallons at 75 cents. The shipment was entered in his private books as if it had been made on his own account. An account was produced in court by one of the witnesses, from which it appeared that the house of Nixon and Walker, in 1805, sold a large quantity of Fayal wine at the average px-ice of 67 cents.
    The debt due to Murphy, mentioned in the account, seexned to have beexx a jixst one, and the interest and costs to have accrued by the administrator’s delay of payment. The balance of $1616 86 cts., included in the lai’ger sum of $2261 14cts. on which intex-est was charged by the auditors, was ixx part made up by an item of $ 775 50 cts. being the value of furniture which was taken by the widow.
    
      Hallotuell and Condy, for the appellant,
    now urged three exceptions to the account as confirmed in the Orphan’s Court.
    1. That the administrator was charged with $393 33 cts. short credit on sales of wine. In support of this exception they said that he ought not to be charged with xnore than the net px-oceeds of the wine, because he had done with it what seemed most'advantageous for the estate. The widow consented to his exporting it, and it sold as well as Nixon axxd Walker’s. As to the account of sales in which he was charged as purchaser, he could not legally be the purchaser. If however it should be determined, that he had no right to ship the wine, an allowance oxxght to be made for stoi'age, and his accountability to extend only to the fair value of the wine, which waá shewn by Nixon and Walker’s sale.
    
      2. It was wrong to charge the defendant with interest and costs on the debt due to Murphy, when no credit was given for advances made to the widow and children.
    3. There was manifest error in charging the defendant with interest on the sum of g 2261 14cts. when that balance consisted partly of the value of furniture. Besides the principal of Murphy’s debt ought to have been deducted from the sum on which interest was charged, and also the amount of short credit for wine. But allowing the latter item, and the commissions on stock, and deducting Murphy’s debt, and then computing interest'on the balance, the amount will be only g 2058 72 cts.
    ' The account ought to have been made out thus: to the old balance of $ 1616 86 cts, add the commissions on stock, and deduct Murphy’s .debt with the interest and costs ; then the sum due from the defendant would be gl080 95. No interest ought to be charged against the administrator, but if any were allowed, it would be more than balanced by that which is due to him on account of his advances. Whatever decree the court may make, it is hoped they will leave the defendant at liberty to bring forward his interest account against the widow and children. To show that the defendant was not chargeable with interest, they cited Fox v. Wilcocks.
      
    
    Milnor, for the appellee.
    The defendant carried on the business for his own advantage, and settled no account from 1804 till 1811. The charge of 8393 33 cts. was made on the basis of his own account of sales, which was rendered to Mr. Moylan. His charging himself as purchaser in that instrument, and entering the shipment of the wine in his books, as if it were made on his own account, furnish a strong presumption that it was so; and no evidence has been brought forward to repel that presumption. He could not legally ship on account of the estate, for an administrator has no right to carry on trade with the effects of his intestate. He is bound to sell the goods for their full value, and if he sells for less is guilty of a devastavit. Godolphin’s Orph. Leg. 204. Wentw. Offi. of Ex. 157, 8. If he does an act contrary to law by which the estate is prejudiced, he must answer for the loss. Norden v. Levett.
      
       Guier v. Kelly.
      
    
    
      It was equitable to charge the defendant with the interest and costs on Murphy’s debt. Murphy was a hard working man who had suffered his wages to lie in the hands of Callaghan ; there were assets to pay his debt, and it ought to have been discharged speedily.
    As to the third exception, if strict justice had been done, more than five years interest would have been allowed. Besides, the calculation of interest is too favourable to the defendant on another account, it is made on the balance in his hands after deducting his commissions, which were not allowed till the time of settlement. He cited Fox v. Wilcocks,
      
       and 3 Wilson’s Bacon. 78.
    
    
      
      
         1 Binn. 199.
    
    
      
       Cited 1 Vern. 474. 1 Ch. Ca. 74.
    
    
      
       2 Binn. 294.
    
    
      
       1 Binn. 194.
    
   Tilghman C. J.

delivered the opinion of the Court:— This is an appeal from the settlement of the account of John Hall, administrator of David Callaghan, in the Orphan’s Court.

1. The first exception by the administrator is to a charge of jg 393 33 cts. on account of some wines, for which, he says, he accounted for at the actual price for which he sold them. The fact is, that the wines were shipped by him to the West Indies, and probably the net amount of sales was §393 33 cts., less than the sum with which the Orphan’s Court has charged him. But it was proved, that he had exhibited to Jasper Moylan, Esq. who acted as the friend of David Callaghan’s family, an account of sales of a large quantity of wine belonging to the estate, including those sent to the West Indies, and in that account, he set down those wines as having been purchased by himself at 75 cents a gallon. The Orphan’s Court charged him at the price mentioned in the account of sales, and it appears to me that he was rightly charged. An administrator cannot properly purchase of himself, but when Hall named himself as the purchaser, it showed an intention to keep the wines at the price of 75 cents a gallon. No doubt he thought them worth that price, or hé would not have fixed on it. His own estimate is strong evidence of the valúe, so that if they produced less afterwards in consequence of a shipment beyond sea, he ought to answer for the loss. It was his business to sell here, and not involve the estate in the risk of a mercantile adventure. It must be an extraordinary case which will justify such conduct. In the present instance, there was no necessity for it, because I have no doubt from the evidence, but that the wines might have been sold in the city. But from the sum of $393 33 cts; with which the administrator was charged, is to be deducted $48 25 cts., the price of storage of the wines in this city.

2. The next exception is on account of a debt due from the intestate to John Murphy. The administrator had assets in his hands, and yet suffered this debt to remain unpaid for several years. At length Murphy brought suit and recovered the debt with interest and costs. There was no pretence for dispute, as the debt was known to be justly due. The administrator charged the estate with the interest and costs recovered against him. The Orphan’s Court struck out this charge, in which they certainly did right. An administrator who suffers a just debt to remain unpaid, while he has assets to discharge it, must pay the damages from his own pocket. The case is too plain to admit of a doubt.

3. The last exception is to the interest charged against the. administrator, on the balance of the account. Five years interest is allowed, and the amount on which it is calculated, is made up as follows :

Balance of account .... $1616 86
Add for short charge on wine - - 393 33
Do. error in charge of commission - 64 52
Do. interest and cost charged on Murphy's debt 186 43
$2261 14

To the charge of interest on this aggregate sum of $2261 14 cts., there are several good objections. In the first place, there is included in the balance of $1616 86 cts., the sum of $775 50 cts., being the appraised value of the furniture of the intestate, which was delivered by the administrator to the widow, consequently not being money, nor having been used by the administrator, no interest is chargeable on that article. In the next place, the principal of the debt due to Murphy, ($414) which was unpaid, when the balance of $ 1616 86 cts. was struck, is to be deducted from that balance. So that when the account is properly settled, it will stand as follows:

"Balance of account settled by the administrator $1616 86 Add short credit on sales of wine - 393 33

Storage - 48 25

-- 345 08

Add error in commissions on stock - - 64 52

$2026 46

From this deduct as follows:

Amount of furniture - 775 50

Principal of Murphi/s debt - - 414 00

-- 1180 50

Leaving a balance of $836 96 cts., on which 5 years interest is to be charged $ 836 96

It was insisted on behalf of the appellees, that in equity the administrator should be charged with interest on the amount of the sum allowedhimbythe register,for commissions, $1499 44 cts., because that allowance was not made till the time of the sefetlement of the administration account, and in consequence of it, the balance was reduced to $ 1616 86 cts. It is therefore supposed, that the sum of $ 1499 44 cts. had been lying five years in the hands of the administrator, and should carry interest. But to this it is answered, that in justice commissions are due at the time the services are performed, for which they are allowed. Almost the whole of the sum of $1499 44 cts., ought on this principle, to have been paid to the administrator several years before the settlement of the account; and it would be resorting to more strictness than is usual or necessary, to ascertain exactly at what time the several parts of the commissions became due, and frame an interest account accordingly.

The administrator asserts, that although a balance of iflterest is apparently due from him, yet in fact, if the advances made by him to the widow and children, and not included in the administration account, are taken into consideration, the balance of the interest account would be in his favour. Possibly it may be so, but of this we cannot now judge. When he comes to settle his account with the widow and children, or their guardians, he will have an opportunity of obtaining justice.  