
    *Tabb v. Boyd.
    [November, 1800.]
    Husband and Wife. — Tbe husband is not liable for his wife's debt after her decease.
    Evidence — Settlement of Guardian’s Account by Court. —Settlement of a guardian’s account, by the county court, is evidence, as the vouchers may be lost
    Guardian — Interest Refused — Case at Bar, — Interest refused, under the circumstances, against a guardian for the misconduct of his wife as executrix of her first husband, before her marriage with' the guardian.
    Tabb as son, heir and administrator de bonis non, of John Tabb, brought a suit-in chancery in the county court of Mecklen-burg against Eerrel and wife, executors of Noah Dortch, and Alexander Boyd acting executor of Richard Swepston deceased. The bill states, that, in July 1775, the said John Tabb died intestate, leaving Mary Tabb his widow, who, with Dortch, took administration on his estate. That Dortch died in 1781. That the widow married Swepston in 1779, and died in 1783. That, soon after the marriage, Swepston was appointed the guardian of the plaintiff, and continued so until 1783. That Swepston died in 1787, and left Boyd and Simms his executors, but that Simms never qualified. That Dortch’s own administration account was recorded by the court; which the plaintiff refers to; but says it is objectionable in a variety of instances, and that no account of the administration, by Mary Tabb during her widowhood, has ever been returned by any body. That, in November 1780, an order was procured by Swepston for his wife’s dower in the slaves and thirds in the personal estate; but that the same was executed improperly. That Swepston held the whole of the lands, but had rendered no account of the profits, under pretence that dower had not been assigned to his wife, although, as guardian, it was his duty to have had it done. ■
    The answer of Boyd states, than he knows nothing of the transactions prior to the marriage. That Swepston regularly settled his guardian’s accounts with the court. That the widow had a right to remain in the mansion house till dower was assigned her; and refers to Swepston’s account *of his administration after the marriage. That the assignment of the dower, in the slaves and thirds 'in the personal estate, was agreeable to the custom of the country; and that the maintenance of the children, the improvements put upon the lands, and the management of 'the estate, were of greater value, than all the benefits, which Swepston ever received from the property.
    It appears by the exhibits that Swepston was appointed guardian in July 1779; and that he returned the accounts of his guardianship annually to the court; who examined and recorded them. Several depositions prove the yearly value of the plantation and slaves, and that Swepston cleared land as he pleased.
    The court referred the accounts to commissioners ; who allowed £2S> per annum rent for the lands, and reported a balance in favour of Tabb, upon all the accounts, of £659. 10. 8%. ; but, from that sum, 12,5961bs. of tobacco, due to Swepston, were to be deducted.
    Opon the coming- in of the report, the county court decreed, that, after deducting the sales made by Dortch in November 1775, and October 1777, of part of the personal estate and such articles as were proved to have come to the hands of the plaintiff, the defendant Boyd should pay the amount of the appraisement, without interest. That the assignment of the dower in the slaves and thirds in the personal estate should be set aside. That the rent of the lands should be fixed at £16. 13. 4. with interest. That, as to the slaves hired out, the profits should be ascertained by the actual hires; and, as to those not hired out, by the testimony in the cause. That the maintenance of the children should be according to certain rates: And other commissioners were directed to state an account agreeable to those principles.
    The last mentioned commissioners reported £602. 14. 6. including interest on the profits of the lands and slaves, due to the plaintiff; and 13,1771bs. of tobacco, including interest, due to Swepston.
    *Upon that report, the county court fixed the value of the tobacco due Swepston at 20s. per cwt., and, deducting the amount, from the £602. 14. 6., decreed the balance (being ¿£470. 19.) to be paid by Boyd, with interest from December 1787, till payment, together with the costs of the suit. From which decree Bojrd appealed to the high court of chancery; where the decree of the county court was reversed, and a new account ordered to be taken by a commissioner; who made a report, wherein he debited Swepston and his wife, according to the appraisement, with the personal estate which came to their hands, including the crop of 1775, and with the rent of the lands at £25 per annum, and the profits of the slaves according to the chancery tables, without interest on either; but credited them,' 1. With the sales by Dortch, at the nominal amount. 2. With £345 for some other charges extracted from the account of Dortch. 3. With the sums paid to the creditors of the intestate. 4. With the maintenance of the children of the decedent. , 5. With dower in the lands and slaves. 6. With the articles delivered to the plaintiff and to Gregory his subsequent guardian, at the value when so delivered only, and not at the appraised value, making the balance in January 1779 against Mrs. Tabb, but, in 1784 and 1787, in favour of Swepston.
    Tabb excepted to this report of the commissioner, 1. Because the profits of the slaves were stated by the chancery tables, instead of the evidence. 2. Because the rent or the lands was fixed too low. 3. Because the ¿£35, extracted from Dortch’s account, ought not to have been credited to the defendant, as it arose from the hire of two slaves and the rent of a piece of land. 4. Because £6. 5. had been improperly deducted out of the hire of carpenter Jack. 5. Because the credits for the sales by Dortch, was unjust as to the amount, inasmuch as the first certainly, and the second probably, exceeded the prices of the same articles in the appraisement, which was the standard of debit for the personal estate, and the plaintiff had not authorized the extension *at the nominal amount of that part of the proceeds of the said sales which was received by Mrs. Tabb, from Henry Creedle. 6. Because full allowance was not made to the plaintiff for sir Peyton Skipwith’s bond. 7. Because more money was charged to the plaintiff when he went to Richmond, than he received. 8. Because the sums charged as paid to M’Kee, were allowed without vouchers. 9. Because £5. 10. 8. and £2. 10. 8. were charged as paid to Speed; whereas the £5. 10. 8. only were paid by Swepston. 10. Because the charge for the carriage to Petersburg of two hogsheads of tobacco received by Gregory, was improper. 11. Because the commissioner had made no allowance at all to the plaintiff for interest.
    Upon these exceptions, the commissioner made another report, wherein he credits the profits of the slaves according to the testimony; adheres to the rent of £25 per annum, for the rent of the lands; says that the £35 were properly credited from Dortch’s account; because, if Mrs. Tabb was to be charged with the profits of the lands and slaves, she ought to have credit for such of them as were received by Dortch; but for reasons assigned by him, £10 were taken from the item. Insists, that the £6. 5. is rightly charged; that the sales by Dortch should stand at the nominal amount; that the debit for sir Peyton Skipwith’s bond stood right; that the charges against the plaintiff when he went to Richmond, were partly admitted by himself, and the rest were taken from the guardian’s account, as audited in the county court; that the payments to M’Kee, were supported by his deposition; that the ,£5. 10. 8. was allowed by the guardian’s account, but, for reasons assigned by him, the £2. 10. 8. are credited to the plaintiff; that the carriage of the tobacco was charged on the evidence of Gregory, but is debited to the defendant in the second report; and that interest is never allowed on profits.
    At the request of Tabb, the commissioner made a third statement upon the principles contended for by the plaintiff; but disallowing interest upon' the annual bal-anees of the guardian’s ^accounts, as well as upon the balance against Mrs. Tabb in 1779; and rejecting all interest until the 1st of January, 1785, being one year from the expiration of Swepston’s guardianship.'
    Upon these reports, the chancellor decreed, 1. .That Swepston, as husband of his wife, was not accountable, after her death, for her misconduct in the administration ; but-that he was accountable, as guardian, for what actually came to her hands, as he ought to have had the account audited in his lifetime. 3. That £30 per annum should be allowed for the rent of the lands; and that the crop of 1775, should be accounted for. 4. That the sales by Dortch should be reduced by the scale of depreciation. 5. That the chancery tables should be adhered to only where the actual profits of the slaves could not be shewn. 6. That the ,£35 extracted from Dortch’s account, were properly credited to the defendant, after the correction made with respect thereto, in the second report. 7. That the ,£6. 5. for the hire of carpenter Jack, was not to be allowed without other evidence. 8. That so much of the fifth exception as related to the £72. 5. 6., the amount of Dortch’s sales in October 1777, had already been allowed, and that the rest, being not well grounded, was to be disallowed. . 9. That the plaintiff should have credit for the whole of Skipwith’s bond. 10. That that part of the charge for monies advanced to the plaintiff when he went to Richmond, which was admitted by him, should stand, but the two sums of £5. 10. 8. and £2. 10. 8. were to be disallowed, unless proved by other evidence than the guardian’s account, which was supposed to have been sanctioned by his own oath only. 11. That the carriage of the two hogsheads of tobacco was properly corrected. 12. That interest was rightly refused. And the accounts were directed to be reformed according to those principles, by the commissioner; who credited the first sales by Dortch, at the nominal amount, and the second by the sale of depreciation: and reported a balance in favour of the defendant, of £58. 5. 2., with interest from the 1st of January, 1785.
    *The chancellor confirmed the last report, and dismissed the bill with costs: from which decree,Tabb appealed to the court of appeals.
    Wickham for the appellant.
    The order for assignment of dower in the slaves was Improperly executed, the chargeable slaves being all thrown upon the estate, and as it was made before the debts were paid, and without any suit, it does not conclude the appellant. The tabular scale of the court of chancery was an improper standard for ascertaining the profits of the slaves ; for the appellant was entitled to actual profits, and not to the mere result of tables. Interest ought to be allowed the appellant on all his claims; for, as to the administra tiou account, the money was due on the widow’s marriage with Swepston ; and, if he had done his duty, it would have been in hand at once. And, as to the rents and profits, the slaves were hired out, and bonds, which necessarily bore interest, taken for the hires, so that there can be no pretext for not paying it on those; and the same thing would have happened as to the lands, if they had been leased out, and bonds taken for the rents. Granbery v. Gratibery, 1 Wash. 246; Brown v. Brown, 2 Wash. 151; Catlett & wife v. Thornton, in this court. Besides the estate was involved, and therefore its monies should have been promptly applied to the discharge of the debts, which were carrying interest. The £35 extracted from Dortch’s account, was for the hire of slaves and the rent of land, and therefore ought not to have been credited to the appellee. The sales by Dortch ought not to have been credited at the nominal amount, but by the prices in the appraisement only, or rather he should have been debited with the sales, without scaling those in specie, and credited by the appraisement, so as to give the plaintiff the benefit of the excess arising from the | sales. The credits on account of M’Kee’s debt are not correct, and the whole of the crop of 1775 should be accounted for. But, at any rate, the decree is wrong, as the plaintiff was entitled to his costs in the county court.
    *Cail, contra.
    Swepston himself was guilty of no misconduct; and his executor is not accountable for the transactions before his intermarriage with the widow: not for those of Dortch, because the wife had nothing to do with them: not for those of the wife herself, because a husband is not liable for the debts of his wife after her death. 1 P. Wms. 469. The inventoried articles, except those sold by Dortch, were probably all delivered to the plaintiff or his guardian, and therefore are not to be paid for now. The crop of 1775 was consumed by the family, and ought to have been expunged from the account. Dortch’s sales ought to be credited at the nominal amount, as the difference between them and the prices in the appraisement will not compensate the appellee for the injuries sustained by charging him with the whole amount of the appraisement. The £35, extracted from Dortch’s account, ought to be credited to the executor; for, if Mrs. Tabb was to be charged with the profits of the lands and slaves, she ought to have credit for such parts of them as were applied for the benefit of the estate. The charges founded on the guardian’s accounts ought to be allowed; for they appear to have been examined by the court; and were not sanctioned on the oath of the guardian only, as the chancellor supposed. The rent was properly fixed by the county court; who probably knew the lands, and were the best judges respecting it. Home v. Richards, in this court, ante, 441. The actual hire of the slaves is allowed according to the evidence; and therefore the objection to the chancery tables has no weight. Interest was properly refused: Clearly, as to the administration account, which is a harsh charge against the executor at any rate: and as to rents and profits, it is never allowed; especially where any part is conjectural and uncertain. 1 Fonbl. Eq. 148; 2 Fonbl. Eq. 428. There was no necessity to wait for the payment of the debts, before the assignment of dower, as the personal estate was sufficient to discharge them.
    Cur. adv. vult.
    
      
      Husband and Wife, — See monographic note on “Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
       Settlement of Commissioner’s Accounts — Bill to Stir-charge and Falsify — Lost Vouchers — Presumption.— In Campbell v. White, 14 W. Va. 143, it is said : “The court therefore starting with the presumption, that the ex parte settlement made by'Stone-was prima facie correct, and guided also by the principle as laid down in McCall v. Peachy’s Adm'r, 3 Munf. 288, and Tubb v. Boyd, 4 Call 453, that vouchers, which cannot be produced on the new settlement, upon a bill to surcharge and falsify a former settlement, may be presumed to have existed.” See also, note to Backhouse v. Jett, 2 Fed. Cas. 322, where the principal case is cited.
    
   *EYONS, Judge,

delivered the resolution of the court as follows:

As all the questions arising in this cause grow out of the appellant’s exceptions to the commissioner’s report, and the decree of the court of chancery, they will be examined as they stand there.

And first, as to the profits of the slaves; the court thinks the objection with regard to them is not sustainable; for they were, by the chancellor’s decree, to be stated, according to the testimony, where any was offered; and the tables were only to be resorted to, when other evidence could not be procured. Which direction was pursued by the commissioner in his subsequent report, and therefore that objection falls to the ground.

The answer of the commissioner, as to the price at which he extended the. tobacco due to Swepston, is deemed satisfactory by the court; and sois the final adjustment of the rents and the £ZS, extracted from Dortch’s account.

The £6. 5. for the hire of carpenter Jack, was rectified. And, as to the sales by Dortch; those in 1775 stand as specie in the report; and those, made during the paper money age, are reduced by the scale, as the decree of the chancellor directed; which puts an end to that exception.

The credit for Skipwith’s bond was sanctioned ;' and the cash payments to the appellant, when he went to Richmond, explained and corrected, although the guardian’s accounts, which had been regularly examined ánd allowed by the court, were the best evidence, as the vouchers might have been lost or mislaid. The appellant has no cause, therefore, to complain on that score.

The payments to M’Kee and Speed were corrected by the decree, as well as the carriage of the two hogsheads of tobacco received by Gregory; and the court perceives no objection to the report in that respect.

With regard to i the claim for interest: The county court, the commissioner, .and the chancellor, all refused it. And when it is considered, that great part of the debt arose from *the presumed conversion of the personal estate by the wife; that Swepston, who was neither married nor appointed guardian, until 1779, never derived any ben.efit from it; that, if he had been accountable for it, he had paid it by the- time of her death ; and that if he had carried it into his guardian’s account, it must have been scaled at the period of carrying it thither, it would be the rigour of justice to punish him with interest for not having done what would have been prejudicial to the -appellant himself. The court therefore approves of the disallowance of interest. -

Dull credit appears tb have been allowed the appellant for the crop of 1775; and of course there is nothing to complain of upon that ground.

The only remaining question then is as to the costs in the’ county court; and we are of opinion that they ought to be divided’ between the parties; with which alteration only, the decree of’the chancellor is to be affirmed.

The decree of the court of appeals is as follows: - .

This court is of opinion, that there is error in so much of the said decree as directs the appellant to pay the costs of the suit in the county court,. which should be borne by the parties, .each paj’ing his own costs in that-.court, and that there is no error in the residue thereof. Therefore it is decreed and ordered, that so much of the said decree as is herein before stated to be erroneous,. be reversed and annulled.; that the residue thereof be affirmed, and that the appellee,, out of. the,estate of his testator, in his hands to be administered, pay to the appellant .his costs by him expended in the prosecution of his. appeal aforesaid here.”  