
    Jesse R. Powell, Administrator, v. M. M. Cooper.
    1. INSOLVENT ESTATES: CREDITOR, WHO HAS PROBATED AND REGISTERED HIS CLAIM, NOT REQUIRED TO PILE WITH THE COMMISSIONER 03? INSOLVENCY. — The creditor of an. insolvent estate, who, before tbe declaration of insolvency, bad probated and registered bis claim under tbe general notice to creditors, is not required, under tbe provisions of art. 101, p. 449, of the Revised Code, to make a formal presentation, of the claim to the commissioner of insolvency. — Gibbs v. Sims, 41 Miss. 706.
    2. Executors and administrators : interest when liable for, and at WHAT RATE. • — • Executors and administrators, using for their individual purposes money of the estate that may come into their hands, arc chargeable with the highest legal rate of interest thereon, notwithstanding the judicious management of the estate in their hands.
    3. Probate court : jurisdiction to award execution in favor of creditor AGAINST ADMINISTRATOR OR EXECUTOR OF AN INSOLVENT ESTATE. — On distribution of an insolvent estate, the Probate Court has the power to decree the issuance of an execution in favor of a creditor and against the administrator or executor, personally, for the amount ascertained to be due the creditor; in such a case, the execution should not issue before a demand of payment by the creditor, or until after ample time for such demand.
    Appeal from tbe Probate Court of Madison county. Hon. W. S.’Bailey, judge.
    At tbe November Term, 1867, of tbe Probate Court of Madison county, E. I). Wade, clerk, presented a list of claims probated, registered, and filed witb him against the estate of S. H. Lanier, deceased, of which appellant was the administrator de bonis non, and which had been previously declared insolvent; notice of said declaration of insolvency had been published as required by law. In this list of claims is one in favor of Geo. W. Gillam for $8,209.95, being a judgment in Madison Circuit Court, rendered on 1st October, 1866.
    Appellant and W. M. Fowler, a creditor of the estate, excepted to the report of Wade, clerk and commissioner, for the following reasons :
    1. Because the claim of Geo. W. Gillam, which is embraced and included in said report, was not presented to said commissioner until after the time allowed and prescribed by law.
    2. For other causes to be shown on the hearing.
    On the trial of these exceptions the following testimony was introduced: .
    E. D. Wade testified — That the claim of Geo.W. Gillam was not presented to him until after twelve months from the date of the first publication to creditors to present their claims against the insolvent estate, and had no actual knowledge of said claim until it was presented as stated; that it was probated and registered on the 1st of January, 1861.
    It was then shown that suit was instituted on the claim on 13th of February, 1866, in Circuit Court of Madison county, and judgment rendered 1st of October, 1866, and which judgment was enrolled.
    J. B. Powell, appellant — That in 1865 and 1866 he sold cotton belonging to his intestate amounting to the sum of $-;
    that the amount was placed to his credit by his commission house in New Orleans, and used by him; that the Probate Court made no order requiring him to loan the money out; that money was loaned at eight and ten per cent.
    A number of witnesses testified as to the judicious management of the estate.
    At the March Term, 1868, the court decreed, that the exceptions to the allowance of the claim of G-illam be overruled and said claim allowed, and the report ■ of the commissioner be confirmed, exhibiting claims against the estate amounting to $52,603.64; “ and it appearing to the satisfaction of the court that the account of the administrator exhibits a balance in his hands of $11,405.88, and it also appearing from proof that the money charged in said account had been embraced therein without interest, and that the same had been received by him as early as January 1st, 1866, and used in his commission house in New Orleans, and that sometimes he paid eight and sometimes ten per cent interest for the use of money,” it is ordered, that interest at ten per cent, from’ the 1st of January, 1866, until the allowance of said account, be calculated on the balance reported; that commissions be allowed the administrator; that th ejpro rata share of the creditors is fifteen per cent, making the following amounts due to each (here follows a statement of name of each creditor and amount allowed him); it is ordered that appellant pay to each of the said creditors the amount allowed to each, “for which execution shall go in favor of each creditor.”
    Prom this decree appellant prayed and obtained an appeal to this court, and assigns the following errors:
    
      1. Because tbe court overruled, tbe exception to tbe allowance of the claim of G. W. Gillam.
    2. Because the court erred in charging appellant with ten per cent interest.
    3. Because the court erred in ordering execution against appellant in his personal capacity in favor of each creditor.
    
      iMchett <& Team for appellant.
    1. The claim of G. W. Gillam was bared, not having been presented to the commissioner of insolvency within twelve months from date of first publication to creditors. See B. Code, § 12, art. 101, p. 449; and also Anderson v. Tindall, 26 Miss. B. p. 332. Art. 103, p. 450, Revised Code, relied upon by appellees, cannot help them, for it evidently refers to registration in the book of registry to be kept by the Probate Clerk as clerk of that court, and not as commissioner of insolvency; and to that extent, and only to that extent, is the decision in the case of Perry, executrix, v. West, administrator, reported in 40 Miss. B. p. 233 et sequens, upon which appellees rely. The decision in the case of Anderson v. Tindall, above referred to, was made under Hutchinson’s Code, p. 668, which is substantially the same as in Revised Code above cited.
    2. Powell, the administrator, should not have been charged with ten per cent interest. There is no proof showing that ho used the money received from the sale of the cotton advantageously, or that it was worth to him either six, eight, or ten peícent, by way of interest. The only proof was, that he had paid eight, and sometimes as high as ten per cent, for borrowed money. It is evident from the proof that he never was ordered by the Probate Court to loan out the money, or that he agreed to' take it on interest. Powell as trustee was not chargeable with more than he had received, unless there was evidence of gross negligence amounting to wilful default, and of this there was no proof, but on the contrary. Osgood and others v. Prwnldin and others, 2 Johnson’s Chancery R., top p. 26, side, ib. 27, and authorities there cited. Trustees will not be held responsible on slight grounds, or where there is evidence of fair and upright intention. Hart v. Ten Eycilc and others, 2 Johnson’s O. R. p. 76. If interest is allowable, as to when it shall commence. 1 J. C. R. 108. Six months after reception of fund is a reasonable time.
    3. The court erred-in ordering execution against Powell for the amount reported by the commissioner, E. D. Wade, clerk, etc. When the estate was declared insolvent, all matters passed from the administrator delonis non into the hands of the Probate Clerk of Madison county, E. D. Wade, as commissioner of insolvency. The jurisdiction of the Probate Court over the administrator, J. R. Powell, ceased, except as to amounts unaccounted for, of which there is no proof; and the remedy and the only remedy of creditors was by suit in the Circuit Court of Madison county against Powell and his sureties upon his administration bond for their pro rata share. See Anderson v. Tindall, 26 Miss. R. p. 332.
    
      John H. Freeman for appellee.
   Shackelford, C.J.,

delivered the opinion of the court.

This is an appeal from the final decree of the Probate Court of Madison county, rendered on the 13th day of November, 1867, upon the report of the commissioner of insolvency, and the proof in the cause, against J. R. Powell, the appellant.

The report of the commissioner, E. D. Wade, and all the proof in the case, are embodied in the bills of exceptions taken and allowed at the hearing.

The first error assigned is, that the court erred in overruling the exceptions taken to the allowance of the-commissioner, Wade, of the claim of G-. W. Gillam.”

The proof shows that the claim of Gillam had been-regularly probated and registered in the office -of the clerk of said court, on the 1st January, 1861.

That it was not presented to the commissioner within the twelve months allowed from date of the publication of the insolvency of the estate of Lanier. That on the day previous to the expiration of the time for presentation of claims, etc., the attention of the commissioner was called to said claim by the administrator, Jesse R. Powell; that judgment had been rendered against him in the Circuit Court of Madison county upon Gil-lam’s claim, as administrator of Lanier’s estate, for §7,745.84, on the 1st day of October, 1866, which had been regularly enrolled on the judgment roll of said court. '

Exceptions were taken to the allowance of this claim by the appellant, and William M. Fowler, a creditor of said estate.

The exceptions were overruled,.and the claim of Gillam was ordered to remain in the report of commissioner as allowed.

We consider it unnecessary to refer to the argument of counsel, in support of this assignment of error, in' 1ns construction of the statute of Revised Code, art. 101, § 12, p.. 449, under which these proceedings were had, as the question at issue has been decided by this court in the case of Gibbs v. W. H. Sims, administrator, 41 Miss., the case before us being a much stronger one in favor of Gillam than that of Gibbs.

In the case under consideration the claim was filed with the commissioner, and embraced in his report of the 18th of October, 1867.

The court decided correctly in overruling the exceptions to the allowance of Gillam’s claim.

The second assignment of error is, that the court erred in charging the appellant ten per cent interest.”

This court has repeatedly held that an administrator is liable for interest under a certain state of facts : for instance, when an administrator has sold cotton belonging to the estate (Cole v. Leake, 27 Miss. p. 767); or on a balance in his hands after a final settlement, until payment. Smith’s Executor v. Hurd, 8 S. & M. Rep. p. 682.

When through a series of years the. administrator showed cash balances, and never paid over the money, he was chargeable with compound interest. Crowder, administrator, et al. v. Shackelford, et al. 35 Miss. p. 321; Brandon et al. v. Hoggart, 32 Miss, p. 335. It is a well-settled principle of law, that, when a trustee mingles the trust money with his own and uses it, he should be held accountable to the cestuigue trust for interest. 9 Pick. 368; 9 John. p. 11, and cases therein cited.

Counsel contend that the appellant should not be charged with interest, because the proof in the cause shows that the estate was judiciously managed by the appellant. The proof is ample on this point. This proof establishes the claims of the appellant to a liberal allowance by the court; beyond this we cannot see why he should be exempt from the payment of interest, as he admits in his testimony on the final hearing of the cause that he sold the cotton of the estate, and placed it in his commission house in the city of New Orleans, and then used it in his business. The facts of the case in this particular are analogous to those in the cases before cited; he is clearly liable for interest.

The authorities cited for our consideration on this point are not applicable to the facts of the case before us.

The only question left for us to consider in this connection is whether the appellant should be charged with eight or ten per cent interest.

He admitted in his testimony that he sometimes paid for the use of money eight, and sometimes ten per cent interest per annum.

It appears from the proof in the cause, that the appellant was not ordered by the court to loan out the money of the estate, and in consideration of this fact counsel for appellant contend that he should not be charged with ten per cent, the legal interest for the boná-fide loan of money allowed by the Revised Code, but that, if he is to be charged with interest, it should be the legal interest of the State, when no interest has been agreed upon.

If the appellant did not wish to use the money of the estate in his hands, he should have signified to the court his unwillingness ; or, if he desired an order to loan it out, the court would have ordered it to be loaned out at ten per cent interest; and then, if he could not have done so at the rate of ten per cent, he could have obtained an order for its loan at a lesser rate. If lie could not have obtained eight per cent, he could have been authorized by the court to retain it, and use it at a rate less than ten per cent, or at such rate, of interest as the court should have ordered.

Ilis having failed to do any of these things, the conclusion is irresistible, that the appellant was willing to pay the highest rate of interest.

Another reason why he should be charged with this rate of interest is, that a trustee is not allowed in any case to use the funds of the cestui-que trust for his own profits. If ho were to be required to pay only eight per cent or a lesser rate, he would be deriving a profit from the funds, which the law does not allow.

For these reasons, we think the decree in this respect is correct, and should not be disturbed.

We come now to the consideration of the third and last assignment of error, which is, that the court erred in ordering execution against Powell in his personal capacity for the amounts due the creditors pro rata, as per report of E. D. Wade, commissioner, etc.”

It is insisted by counsel for appellant, that the jurisdiction of the Probate Court over the appellant ceased when the court appointed the clerk commissioner of insolvency, except as to amounts unaccounted for, of which there is no proof; ” and that the only remedy of the creditors was by suit in the Circuit Court, against appellant and his sureties upon his administration bond, for their fro rata share, and rely upon the case of Anderson v. Tindall, Judge, etc., 26 Miss. R. p. 332.

We have carefully considered the case of Anderson v. Tindall, and can find nothing in the opinion of the court sustaining the construction placed upon it by counsel for appellant.

In the case of Anderson v. Tindall the appellant was cited to make or render an annual settlement of his accounts as administrator of Aaron Root, deceased.

lie filed his answer, showing that the estate was insolvent, that he reported it as such, and the estate declared insolvent; and that commissioners were appointed, and that they had reported, and a dividend declared on tbe amount of claims presented and allowed, and ordered to be paid to the creditors.

That tbe order was never appealed from; that since said decree of distribution, at tbe instance of tbe creditors of tbe estate, bis bond as administrator was directed by tbe court to bo put in suit. That no assets hacl come to his hands since the showing of insolvency, and that he has accounted _for all which he had received before that time.

Anderson, tbe respondent, insisted that these transactions constituted a full administration of tbe estate, so far as tbe Court of Probate was concerned.

Tbe court say (Chief Justice Smith delivering tbe opinion of tbe court): “ In cases of insolvent estates, tbe rights and liabilities of tbe parties in interest, tbe creditors and tbe administrators, are ascertained and fixed by tbe report of tbe commissioners, and tbe decree of distributions. When that is done, tbe executor or administrator ceases, as to all tbe assets which have been reported and accounted for, to be responsible in bis fiduciary capacity.” “ Tbe executor or administrator becomes directly and personally responsible to each creditor for bis distributive share ; what was before a debt due in are presentative capacity becomes a personal obligation, for which an action may be maintained in tbe Circuit Court upon tbe bond; and tbe execution which issues on tbe judgment is to be levied of tbe lands, tenements, and chattels of the executor or administrator.”

This is a complete administration. Tbe executor or administrator is then no longer amenable to tbe court: be cannot be called to make an account, for the obvious reason that there is nothing to be accounted for to tbe court.”

It is manifest that tbe decision in tbe case of Anderson v. Tindall goes only to tbe extent of sustaining tbe answer of Anderson, which shows that be bad accounted for all tbe assets of tbe estate be bad ever received, and that be bad received no further assets since tbe order distributing tbe same among tbe creditors ; be insisted that be was no longer subject to tbe jurisdiction of tbe court, that tbe estate was settled up, and that he was not compelled, to make an annual account to the court, as he had been cited to do.

The Probate Court decreed that the answer of Anderson should be overruled,” and the court held that he should settle his final account. The decree was reversed by this court, on the grounds hereinbefore stated.

There is not the least indication in the opinion in the case of Anderson v. Tindall, by the court, that a probate court could not order process of fieri facias given by the statute then in force — Hutch. Code, art. 34, p. 727 (the same as the statute, Revised Code, p. 431, art. 31) — and which authorized the court to imprison an administrator for contempt for not obeying a decree of the Probate Court. This latter portion of the statute having been omitted in the Code of 1857, is no longer in force.

It will be also seen that in December, 1844, the decree of distribution was made by the court, and that at the Ma/rch Term, 1845, the court ordered his bond to be put in suit against himself and sureties. This was done evidently because the administrator failed to pay over the funds in his hands to the creditors.

The court still continued its jurisdiction over the administrator, after his failure to perform his duty to the creditors of the estate, by ordering at a subsequent term his administration bond to be put in suit.

The court in the case of Anderson v. Tindall could have ordered an issuance of executions of fi.fa. in case the administrator failed to comply with the decree of distribution. Hutchinson’s Code, p. 727, art. 34. But the court saw proper to order the administration bond to be placed in suit, no doubt upon the ground that the administrator was insolvent.

The decree objected to and under consideration does not direct the administration bond to be placed in suit, but orders that “ execution may go ” in favor of the creditors named in the report of the commissioner, Wade, made a part of the decree. Of course the executions would be issued, to be levied of the goods, chattels, and lands and tenements of appellant.

This order for “ execution to go,” made under the provisions of the statute in Revised Code, art. 31, p. 131, giving the power to Probate Courts to enforce their decrees by process of fieri facias, certainly cannot be construed into a violation of any principle announced in the case of Anderson v. Tindall.

The administration bond is the secwrity to the creditors or legatees of an estate; and when all other remedies provided by law for the creditors, etc., of an estate are exhausted, the bond can be placed in suit for their benefit. This remedy is still left to.the creditors, in case they should fail to collect their money of the appellant, and also fail to collect the same by virtue of process of fi. fa.

The decree is objectionable in this, that the order that “ execution shall go ” is not made conditional upon the failure of appellant to pay over the money decreed to the creditors, on their demand.

An issuance of execution in favor of the great number of creditors embraced in the report of the commissioner, before a demand of each for his money of appellant, would 'lead necessarily to great and unnecessary expense, which would have to come out of the funds in the hands of the appellant. Though, under the circumstances, we think the decree should not be disturbed for this cause, as there has been ample time from the rendition of the decree for demands to have been made, and an issuance of fi. fa. against him would work no injury.

let the decree be affirmed.  