#### Bowling, &c. *vs*Cobb, &c. And Cobb *vs*Bowling, &c. and Churchill *vs*Cobb, on cross errors.

Appeal erom the Hart Circuit.

Chancery..

*Case*72.

The will to be’ eonstrued»-

A devise of the whole of the estate of testator, after the payment of debts, to the widow for life, “but if she marry, then and at that time, an equal division taires place, both of the real and •personal estate *357that she may s?0n\tVe°üme “Iher i“term®r* queath then or whom she^iea” that to the time of Slight’to enreai^ana Personai, after payment of debts.

*356*Devises.- Administrators. Interest.*

*April 14.*

Judge Marshall

delivered the opinion of the Court.

By the will of A. Burner, deceased, his whole estate, after payment' of debts, is devised to his widow for life, provided she never marries, “but should she intermarry, then and at that time, an equal division takes place, both of the real and personal estate that she may have in possession at the time of her intermarriage;” one half is given to her at the time of her intermarriage, “to bequeath then, or at her death, to whom she pleases,” and the other half to be equally divided between.Isaac Burner and others named.

Up to the time of her intermarriage, Mrs. Burner was entitled to the whole of the property, real and personal, as tenant for life, to be enjoyed, (in the language- of the will,) freely and without waste of property. She was, therefore, entitled to the hire of the slaves and the rent of the land up to that time, and from that time she was entitled to one half of the hire and' rent, aud also to one half of the money then on hand, to be hers absolutely. For it is evident that upon her maniage, the will gives her the full and absolute property in one half óf the estate.

As the interest of all the devisees was subject to *the*payment of debts, it was proper that Mrs. Burner's half should bear the burthen of one half of the debts and no-more, and this result is produced by the manner in which the account is made up in the Commissioner’s report and in the decree, except that after the Commissioner had ascertained the whole fund in the administrator’s hands, by crediting him with all disbursements, and had thus,, in effect, charged each disbursement proportionally *357against all who were entitled to the estate, the decree again charges one half of several small disbursements, evidenced by vouchers from one to seven inclusive, upon Mrs. Burner’s half. Her half is thus, in effect, charged with the whole of these items, when as they were not disbursed for her exclusive benefit, but were in fact charges against the whole estate, they had already been fully disposed of in crediting them to-the administrator. The item of forty dollars paid to Mrs. Burner herself and credited to the administrator in his account with the estate, as per voucher 11, was properly disposed of in the decree, by charging Mrs. Burner’s share with one half of *, L ° ° '*that item. '

When debts to an estate are alledged to be lost by insolvency of the debtor, which were created by the administrator and no security tallen, and they are charged to him in ihe Commissioner’s report in the Circuit Court, and no proof oí their loss without his neglect, this Court will not interfere.

To authorize this Court to interfere and change an allowance made by the Circuit Court to an* *358adm’r. for attorney’s fees, proof of the nature of the services and reasonablen ess of the fees should appear in the record.

*357In distributing.the funds in the administrator’s hands between Churchill, who is'entitled to Mrs. Burner’s share, and Bowling and others, who are entitled to the other half, we perceive no other error but that already pointed out, and which having been assigned for error by Churchill, must be deemed a ground of reversal.

The Commissioner’s report was excepted to by Cobb, for not allowing him cr'edit for, the amount of several notes taken by him for negro hire, and alledged to be uncollectable, by reason of the insolvency of the'obligors, and also for not allowing him the full amount of a fee paid to an attorney, for attending to a suit in which the estate was deeply interested. And he assigns for error, the overruling of these exceptions, and also the charge of interest against him, which, although contained in the Commissioner’s report, was not excepted to in the Circuit Court.

With regard to the notes alledged to be uncollectable, there is.no evidence that the debts if lost, which does not satisfactorily appear, were lost without the fault,of the administrator, and as'he seems to have taken no security for the hire in the cases referred to, and does not establish any excuse for this neglect, the loss, if any, should fall on him.

With respect to the fee for which he claims credit., there being no evidence of the amount and precise nature of the services rendered, except that the fee'was for appearing in this Court to defeat a claim against the estate for *358$2,500, upon a note alledged by the administrator to have been forged ; we should be at a loss to determine precisely the sum which should have been paid to the, attorney. Nor indeed do we know of any other criterion for the case, but that the administrator should have acted in the employment of an attorney, as a prudent man of ordinary discretion, would have done in his own case. *Prima facie,*$100 allowed by the Commissioner would seein to be sufficient, and $250 charged by the attorney, and even $185 paid by the administrator, would seem to be to'o much. And although under the circumstances, we cannot determine that the amount paid, is sufficient evidence either of bad faith or of such wrecklesness as should certainly throw the loss on the administrator, yet as the disallowance of this sum of $85, even if erroneous, is fully compensated by the unusual, and so far as we perceive, excessive allowance of seven per cent, upon the whole amount of charges, and also seven pér cent upon the whole omount of credits in the administrator’s accounts, which added to the previous allowance in the County Court settlement, make upwards of *$390*commissions upon receipts which, with interest added,, amounting only to $4,151 88, we are of opinion *that if*in other respects there be no érror against the administrator, he has no just cause of complaint, and the decree should not be reversed for this error, if it be one.

An allowance to an adm’r. of 7 per centum on charges, and 7 per cent.on credits, in the Circuit Court, add-1 edto #390 allowed by the County Court upon receipts, with interest added amount to #4X51 88. is unusual and' excessive, unless intended to cover extra trouble and expenses.

Where an adm’r. has kept the fund unusually long, and is charged with interest by the Comm’rs. in the Circuit Court, and it is allowed without exception to Comm’rs. report, the inference by the court will be, that it was properly charged.

Upon the subject of interest, we are of opinion, that as the administrator appears to have kept the estate in his hands for a period unusually and unnecessarily long, as the inference from the pleadings is, that he used the money as his own and made profit on it, and as his failure to except to the charge of interest in the report, if it is notan absolute waiver of the objection, tends to confirm the inference mentioned, and thus to establish the propriety of the charge, we cannot decide the decree to be erroneous on this point.

In the whole case, therefore, we perceive no available error except in deducting from Mrs. Burner’s, that is, from Churchill’s half of the sum remaining in the hands of the administrator, one half of the items in vouchers one to seven inclusive, after the whole of said items had *359been credited to the administrator in ascertaining the balance in his hands. ' And this is an error only as between Churchill and the other parties claiming distribution or payment from the administrator.

*Morehead Reed*for appellants; *Harlan 8f Craddock*for Cobb and Churchill.

Wherefore the decree is reversed upon this error assigned by Churchill, and the cause is remanded, with directions to correct the decree in this particular.

Upon the-appeal the costs are decreed against the appellants, and on the cross ertors, each party to pay their own costs.