
    TURNBULL, TUTOR, &c. vs. TOWLES’S EXECUTRIX.
    Westbbk Dist.
    September, 1836.
    APPEAL PROM THE. COURT OP PROBATES POR THE PARISH OP ST. MARY.
    Where the community was dissolved by the death of the wife, and no inventory or steps taken towards its liquidation, and it appears to have been indebted to a greater amount than that of the property exhibited as having belonged to it at its dissolution: Held, that the only child by the first marriage will not be entitled to take any part of this community by inheritance, in right of his mother.
    Where the husband gives a receipt for money received from the estate of his wife’s ancestor, the funds will be considered as part of the wife’s inheritance, and received on her account, for which he will be liable to her heirs.
    But where the husband gives a receipt for a tract of land and slaves, received from his wife’s ancestor, at specified sums, it will not give him any legal title to them, and his succession will not be responsible for these articles, or the price at which they were estimated in the receipt, to the heir of his wife.
    
      The tutor is entitled to ten per cent, commission on the amount of the revenues of his pupil, arising from five per cent, interest on the pupil’s funds in his hands, and from the hire of his slaves and other sources of revenue. The commission must be calculated on the amount of the revenue, and the interest of five per cent, is to be calculated on the remaining sum, after deducting the commission and expenses of education.
    This is an action by the tutor of the minor son and sole heir, by the first marriage, of the late Dr. John Towles, to recover from the administratrix of his succession sundry sums, which it is alleged the .said Dr. J. Towles received on account of his first wife, and which he never paid over to his said son, after the dissolution of his first marriage.
    The plaintiff alleges, that at the death of his first wife, in 1817, Dr. J. Towles became the natural tutor of his only son and child and administered his property; that he kept the negroes brought in marriage and made large profits with them, which he appropriated to his own use. He also retained the community property, sold several tracts of land in the parish of Rapides for the sum of twelve thousand dollars, and negroes in St. Mary to the amount of two thousand dollars, all of which he received. On the 8th of June, 1818, he signed a receipt to the mother of his,deceased wife, stating that he had received, at different times, on account of his deceased wife, eleven thousand three hundred and seventy-five dollars. That property of the community acquired by said John Towles, during his first marriage, was found in his succession and put on the inventory, sold as community effects, and as such amounting to twenty-six thousand six hundred and seventy dollars.
    The plaintiff further states that the administratrix has retained the negroes brought into the first marriage, since the death of her husband in 1833, with the other property of the succession, and had the benefit of their labor, and that the succession is indebted for the value of their services, both before and since Dr. Towles’s death; that it owes interest at five per cent, on the sums which came into Dr. Towles’s hands after the death of his first wife, from the respective periods when they were received by him. The plaintiff alleges that the minor, whom he now represents, has a legal mortgage on all the succession property of Dr. John Towles, as his former tutor, for the reimbursement of the several sums owing by him. He therefore prays judgment for the amount that may be found due to him, with interest and mortgage allowed.
    The defendant admits there may be some of the property acquired by her deceased husband, during his marriage with the mother of said minor, in the succession, but that most of what is comprised in the inventory belonged to the late community existing between her and Dr. Towles. She further avers that the first community was insolvent, but that its debts were paid by Dr. Towles, after the dissolution of the first community, or by his succession since his death. She specifies a number of old debts, to a very large amount, paid since the dissolution of the first marriage, and which caused the second community, together with other losses, to be much embarrassed -with heavy debts. That as to the slaves claimed as the paraphernal property of the first wife, they have long since been taken away. She avers there is nothing due to said minor from the succession she administers, and prays that the plaintiff’s demand be dismissed.
    The evidence and accounts produced on the trial, and the calculations made, are fully stated and recapitulated in the opinion of the court.
    “Dr. John Towles received of the estate of John Turnbull, deceased, viz.:
    Received of C. Norwood, cash as per receipt, $3,400
    Do. CC CC CC CC CC CC 1,075
    Do. CC CC CC CC CC cc 1,500
    Do. CC CC CC CC CC cc 1,800
    Do. CC CC Cc cc cc cc 913 38
    Do. of Mrs. Turnbull, “ “ 842 31
    $9,530 69 Carried forward,
    
      -Brought forward,.9,530 69
    Family of negroes from Mrs. Turnbull, (Bob, Riner and three children,)
    ) )
    „ ’ .
    Two negroes of Mr. T-, (Emelie and Jerry,)
    1,000 00
    A tract of land near Pincknevville, in the state or Mississippi,
    ) 5
    , . „„ „„
    Sundries of Mrs. Turnbull,.315 00
    5,470 69
    Credit by cash refunded,.2,470 69
    $14,000 00
    
      Dated June 8, 1818.”
    The probate judge decided that the community existing between Dr. Towles and his first wife was insolvent, and dismissed the further consideration of it. He deducted the value of the land and negroes in the receipt of Dr. Towles .to Turnbull’s estate, and allowed the minor to take the property in kind, which left seven thousand three hundred and seventy-five dollars, which was allowed. The further sum of seven thousand one hundred and seventy-five dollars, with interest at five per cent, was allowed for the hire of slaves, and a deduction of one hundred dollars per annum, from 1817 to 1828, for the maintenance and education of said minor; and a further deduction of ten per cent, from the interest, for each and every year, to the 20th August, 1833; tWQ hundred and fifty dollars for 1829, and five hundred dollars for each of the years from 1830 to 1832; and judgment was rendered accordingly. The defendant appealed.
    
      Brownson, for the plaintiff,
    offered some calculations to show that the judgment was erroneous as respects the amount due the plaintiff.
    1. He showed, by calculations drawn from the evidence, that the succession of Dr. Towles was indebted to the plaintiff in the sum of eight thousand seven hundred and thirty-five dollars, for the use and hire of ten slaves belonging, to the succession of his first wife, from the year 1817 up to 1834.
    2.He then contended that the succession administered by the defendant was responsible for the minor son of her late husband for the amount of his receipt in 1817, being for cash and negroes received from C. Norwood, administrator of John Turnbull’s estate, the father of his first wife, and which she inherited. At least he is indebted for the balance, after taking out the negroes in kind.
    
      Conrad and Simon, for the defendant.
    1. The court erred in decreeing payment to the plaintiff of the hire of the negroes claimed by him. There is no legal evidence of these negroes being the property of the minor. The inventories were introduced for a different purpose, and are no proof of title ; neither is the fact of then-being taken away from the place, as there is no proof that this was done with the consent of the defendant; and besides, the plaintiff was one of the heirs of Turnbull, and might have taken them away as heir, as well as in his capacity of tutor. The administratrix could not, by any act of, or omissions of hers, affect the rights of creditors of the estate to the property belonging to it.
    
      2. At all events, there is no proof whatever that the sums of money mentioned in the receipt given by the deceased belonged exclusively to the minor. He is only entitled to his virile share thereof as one of the heirs of John Turnbull, to wit: to one fifth part. There is greater danger in the court’s decreeing the whole of this debt to the minor, as it appears, by a receipt given by Mrs. Turnbull some time afterwards, that there was a general settlement of all accounts between her and the deceased. See receipt signed by Mrs. Turnbull, dated in 1823, referred to in deposition of N. Cox.
    3. The calculations of interest were clearly erroneous, as also the allowance of commissions 'to the tutor.
    4. The court should have deducted from the amount decreed to be due the plaintiff, one half of the interest on the loan made from Surget on the joint account of the deceased, and of the minor. This loan was made on the recommendation and by the authority of a family meeting, who judged it for the advantage of the minor. It was undoubtedly binding on the minor, and the creditor could have collected it from him. Since the opening of the succession it has been paid by the administratrix. See tableau of distribution under the head “mortgage creditors.” We do not claim the principal, because the deceased received it as tutor, and was bound to account for it; but he never did receive the interest, and therefore the minor could not claim it. At all events, the court should deduct the difference between the interest on this loan and that due to the minor, that is, five per cent, per annum on eleven thousand dollars for upwards of two years. Thus the deceased received on account of the minor eleven thousand dollars; on this he owes say five per cent. But the minor owes ten per cent, to the estate, which has paid that amount of interest for him.
    Where the community was dissolved by the death ofthewife, and no inventory or steps taken towards its liquidation, and it appears to have been indebted to a greater amount than that of the property exhibí-ted, as haying its^dfssoiuti'on: oniyehiMbythe first marriage ■will not be enti-tied to take any munitythbyC°h!l heritanee, in right of his mother.
    
      5. The decree should have been to pay in due course of administration, and not absolutely.
   Bullard, J.,

delivered the opinion of the court.

The claim set up by the plaintiff in this case, against the succession of his father and tutor, may be considered by us, as it has been in the argument, under three distinct heads.

First. For an alleged amount due on account of the community formerly existing between the deceased and the brothers of the plaintiff, which never has been liquidated.

Second. For certain sums of money and the value of a tract of land in Mississippi, received by the deceased from the estate of John Turnbull^ the plaintiff’s grandfather. .

Third. For the revenues of the minor, consisting principally of the hire of certain slaves, alleged to be the separate property of the plaintiff, and employed by his father after the death of his first wife.

I. At the dissolution of the first community no inventory appears to have been taken, nor any steps towards a liquidation of it. Its situation, either as to property or debts, is but imperfectly known. The defendant has shown, however, was greafjy indebted, and the amount of property exhibited on the other side, most of which was disposed of by Dr. Towles, appears insufficient to pay the debts. We therefore concur with the ■judge of the Court of Probates in his conclusion, that on this head the plaintiff has failed to show that he is entitled to any thing, jo,

Where the husband gives a receipt for mo-from tim "estate of his wife’s ancestor, the funds will be partofthewife^s inheritance, and received on her account, for be Hahle'to her lieil's-

II. The evidence under the second head consists of a written acknowledgment or receipt signed by Dr. Towles, aftei'- the death of the plaintiff’s mother, by which he acknowledges that he had received from the estate of John _ . T , , , . • - Turnbull, deceased, certain slaves, certain sums of money, and a tract of land in the state of Mississippi, estimated at four thousand dollars. The plaintiff, who has already . t . . . . \ , . T received the surviving slaves, claims in this suit the amount of money thus alleged to have been received on his account, as one of the heirs of John Turnbull, together with the value of the tract of land.

it has been strenuously contended by the counsel for the _ _ . . . _ . . , . 1 defendant that this document íurmshes no evidence in supPort °f tfo® pretensions of the plaintiff; that it does not show on whose account, the money was received, that all the heirs 4 , of John Turnbull have as good a right as the plaintiff to recover the amount, and that a judgment in favor of the plaintiff would be no bar to their claim. We cannot yield r . , J our assent to these propositions. The evidence in the record shows that Mrs. Towles was one of the heirs of Turnbull, and the plaintiff sues as her heir. Dr. Towles, when he received this amount, possessed a quality or capacity either as the husband or tutor of one of the heirs of Turnbull, which entitled him to receive-it. We must presume he did receive it in that capacity, unless negatived by the terms of the receipt itself. The money does not purport to have been received on deposit, and the receipt per se does not furnish evidence to authorize the heirs to recover it back without showing it was paid in error.

But the plaintiff, in our opinion, is not entitled to recover the four thousand dollars for a tract of land in Mississippi. It does not appear that the land was conveyed to Dr. Towles for that price, nor that he has disposed of it. The title to the land, and to the slaves specified in the receipt, rests on the same ground. It will not be pretended that the slaves, acknowledged to have been received by him, were at his risk, and that if they had died he would have been liable to his pupil for.the value specified in the receipt. We cannot distinguish between the slaves and the land ; both appear to have fallen to the share of the plaintiff, or his mother, in the distribution of the estate of Turnbull, and we are not autho-3 rized, by any evidence in the record, to conclude that they . , . . thcit hlS CSt8/l6 is It is contended, howéver, to presume that Towles disposed of the land .. _ . , , , , , before his death. If the title had been in him, we might, perhaps, fairly presume it had been sold, inasmuch as no became the property of Dr. Towles, and responsible for the price or value, that we are But we cannot pre-1 notice is taken of it in the inventory, sume that he sold the property of his pupil.

But where the Jrasbp.nd gives a traot of land and from ’¡11S w¡fe>s a?oe®tor>at SP®: cmed sums, it win not give him any legal ti-tie to them, and ^ sponsible for these articles, or the price at eaimateñn the receipt, ,t0 heir of his wile.

III. In relation to the third branch of the case, which relates to the time of the slaves and the allowances to be made to the tutor for the expenses of the education of the plaintiff, an attentive examination of the evidence satisfies us that the Court of Probates came to a just conclusion.

The defendant and appellant has filed various grounds, upon which she asks a reversal of the judgment below, some of which, relating to the title of the plaintiff to the slaves, and, consequently, the hire which has been allowed, and to the right of the plaintiff to recover the sums of money specified in his father’s receipt, have already been disposed of substantially. She further contends, that the court erred in allowing to the plaintiff interest on those sums; in allowing to the tutor for his commissions only ten per cent, on the interest of his revenues, instead of that per centage on the revenues themselves; and further, in not charging the plaintiff with one half of the interest paid on a loan of twenty-two thousand dollars made by them jointly; and, finally, in making an absolute decree for the payment of whatever amount might be due to the plaintiff, instead of it to be paid in the regular course of administration.

The tutor is entitled to ten per cent, commission on the amount of the revenues of his pupil, arising from five per cent, interest on the pupil’s funds in his hands, and from the hire of his slaves and other sources of revenue. The commission must be calculated - on the amount of the revenue, and the interest of five per cent, is to be calculated on the remaining sum, after deducting the commission and expenses of education.

The question here raised, as relates to the interest on the loan of twenty-two thousand dollars, does not appear to have been agitated in the court below, and the answer to the original petition is silent as to that matter. No offset is claimed on that account, and we think the defendant has failed to show any liability on the part of the plaintiff, to pay any part of the capital or interest.

The tutor is by law authorized to retain, as his commission, ten per cent, upon the revenues of the minor. In this case the revenue must be considered as composed of the interest of five per cent, on the moneys in the hands of the tutor, and of the annual hire or value of the services of the plaintiff’s slaves. On the amount of the hire, after deducting the ten per cent for each year, the tutor owes an interest of five per cent., as well as upon other sums which came into his hands; but we are not aware of any law which obliges him to pay interest upon interest. The interest must be calculated on the amount after deducting the commission and the expense of education. The judgment rendered in the Probate Court allows for expenses of education, different sums, increasing with the age and advancement of the plaintiff, which appears to us reasonable and supported by the evidence. But from the phraseology of the decree, it is not apparent that all allowances were made for interest and commissions, according to the principles abovementioned. With respect to the number of hands belonging to the plaintiff at different periods, and the value of their services, the evidence in the record does not satisfy us that the court below erred. But the judgment, for the reasons-above stated, must be reformed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed and annulled; and it is further adjudged and decreed, that the plaintiff recover of the defendant, as administratrix, to be paid in the course of administration, as hypothecary creditor from the year 1817, first, the sum of seven thousand three hundred and seventy-five dollars, together with an accruing annual interest of two hundred and twenty-seven dollars and thirty-eight cents, for each and every year from the 8th of June, 1818, until the 24th February, 1834, and after that period an interest of ten per cent, on said sum, until paid, according to the agreement in the record; and that he recover secondly, for the hire of slaves, after deducting commissions and expenses of education not already allowed above, the sum of one hundred and thirty-five dollars, with interest at five per cent, from the 19th April, 1818, till paid; the slim of two hundred aud seventy dollars, with like interest from the 19th April, 1819; the further sum of two hundred and seventy dollars, with interest from the 19th April, 1820; the sum of three hundred and thirty-eight dollars and fifty cents, with interest from same day, 1821, and of three hundred and thirty-eight dollars and fifty cents, with interest from April 19th, 1822; of four hundred and five dollars, with like interest, from April 19th, 1S23; the like sum of four hundred and five dollars, with interest from same day of April, 1824; ihe like sum of four hundred and five dollars, with like interest from the 19th April, 1825; the like sum of four hundred and five dollars, with iuterest from April 19, 1826 ; the same sum of four hundred and five dollars, with interest from April 19, 1827; the same sum of four hundred and five dollars, with interest from April 19, 1828; the further sum of three hundred and ninety dollars, with interest from the 19th April, 1829 ; the sum of one hundred and forty dollars, with interest from the 19th April, 1830 ; the further sum of two hundred and seven dollars and fifty cents, with interest from April 19th, 1831; and the same sum for each of the years 1832 and 1833, with interest on each from the same day of each year, respectively; and it is further-ordered, that the costs of the Court of Probates be paid by the estate, and those of the appeal by the plaintiff and appellant, reserving to him any right he may have to the tract of land in Mississippi.  