#### Cookus & als. v. Peyton’s Ex’or & als.

March, 1845,

Richmond.

(Absent Stanard and Baldwin, J.*)

1. Statuteof Limitations—Fiduciaries.—The act passed March 8th. 1826, Supp. Rev. Code, ch. 200, § 1, p. 260,† for the limitation of actions against persons acting in a fiduciary character, only begins to run from the time when the liability sought to be enforced, arises.

*2, Administrators—Sureties of‡—Settlement of Accounts—Parties.—The sureties of an administrator of a snrety of an administrator, are not entitled to have a resettlement of the administration accounts of this last mentioned administrator, upon his intestate’s estate, which have been settled in a suit by creditors and distributees of said intestate against his administrator and sureties, before the sureties asking for a settlement of the accounts were made parties defendants in the cause.

3. Same—Debts Due to—Retainer—Dignity of Debts.— An administrator is not entitled to retain for his debt due by simple contract as against bonds with collateral conditions creating contingent liabilities which may never occur, before the breach of such condition, although he has no notice of such contingent liability for eight years after his qualification as administrator, and the breach of the condition is not ascertained for eleven years after his qualification.

4. Same§—Distribution of Estate—Outstanding Debts, —An administrator paying away the assets of the estate to distributees, without notice of debts or liabilities of his intestate, must account to creditors for the amount so paid away, with interest.

5. Appellate Practice—Commissioner’s Report. |—An error appearing on the face of a report will be corrected,though no exception has been taken to it in the court below.

John Peyton in his lifetime was the deputy clerk of the county court of Frederick, under a contract with James Keith the clerk, by which he undertook to do all the business of the office, for one third of the fees, and to pay over the other two thirds to Keith. He died in 1804, intestate, leaving a widow, Susan Peyton, and eight children, the most of whom were infants. His son Henry J. Peyton, his son-in-law A. B. Armistead, and the late judge John Brown qualified as administrators on his estate, with John Morrow, Joseph Titball and Adam Douglas as their sureties. Some years afterwards Robert O. Grayson, another son-in-law of John Peyton, qualified as administrator.

In 1806, Keith filed a bill in the county court of Frederick, against the first administrators, claiming that John Peyton was indebted to him on account of his fees, and for the loss of papers from the office; and the bill was subsequently amended and Grayson was made a party. The defendants answered, contesting the plaintiff’s claim to any thing prior to 1803, pleading the statute of limitations to all the claims prior to 1799, and pleading outstanding *debts of superior dignity to the full amount of the assets. The cause was removed to the superior court of chancery, and the accounts were referred to a commissioner, who was about to report a large sum against Peyton’s estate, when the administrator Grayson, in 1817, made a compromise with Keith, by which Keith was to receive 10,000 dollars, and said Grayson, with John S. Peyton, Francis A. Peyton and Elizabeth C. Peytpn, children of John Peyton, deceased, executed to him five bonds of 2000 each, payable in one, two, three, four, and five years; and he thereupon dismissed his suit.

In 1826, Robert O. and Benjamin Grayson filed their bill in the superior court of chancery at Winchester, in which it was stated that Robert O. Grayson, having become in*182debted to Louisa M. Peyton on account of transactions arising out of the sale, by the said Louisa M. to said Grayson,'of a tract of land, and the rescission of that contract, had executed to her his four several bonds with Benjamin Grayson as his surety, on two of which judgments had been obtained, and a suit brought upon the third. That said Louisa, though a minor when the compromise was made with Keith, approved of it, and after coming of age had promised to contribute her proportion to the discharge of the sum of money which was to be paid to Keith, and had agreed with Grayson that the bonds executed by him to her should be applied to that object: and that Grayson had paid to Keith 6721 dollars 66 cents, which had been accepted in full of his liabilities by the administrator of Keith. The plaintiffs, therefore, having made William L. Clarke, who had married Louisa M. Peyton, and the said Louisa M. parties defendants to their bill, asked the court to injoin all farther proceedings upon said judgments, and in said suit, and that the amount of the said Louisa M.’s liability might be ascertained, and applied to the satisfaction *of the bonds executed by the plaintiffs to her. The court granted the injunction.

Clarke and wife answered, denying that Grayson was authorized to make the compromise with Keith, and especially denying that the defendant Louisa M. had ever agreed to pay any part of the amount which Grayson had agreed to pay to Keith. Upon the coming in of the answer the injunction was dissolved, and the plaintiffs were permitted to carry on their suit as an original bill.

In the progress of the suit, the representatives of the original administrators, and John T. Cookus and Robert Worthington the administrators of Morrow, Titball’s administrator, Douglas, and the widow and children of John Peyton, were made parties defendants, and the accounts of the original administrators were settled by a commissioner of the court. These accounts consisted of the separate administration accounts of each of the administrators, on which judge Brown was ascertained to be slightly in advance to the estate; and Peyton and Armistead were each debtors to a small amount; and of a general administration account in which the administrators were found indebted in the sum of 9819 dollars 7 cents, as of the 1st of January 1830, with interest on 4238 dollars 11 cents, a part thereof, from that date. The commissioner also stated the administration áccount of Robert O. Grayson, reporting against him the sum of 6086 dollars 85 cents, with interest on 3859 dollars 46 cents, from the 1st of January , 1824., ■•A special statement was afterwards made out under the direction of the judge; from which it appeared that after allowing to Grayson what he had paid to Keith, he was debtor to the estate 1779 dollars 10 cents, whilst Elizabeth C. Peyton, one of his joint obligors in the bonds to Keith, was debtor to him 1731 dollars 10 cents, and that the estate of John Peyton was debtor to said Elizabeth C. on account of her payments to Keith and to Grayson, 5787 dollars 91 cents, as of the 1st of January 1830. *The balance found due from the administrators of John Peyton, after deducting the amount due to Elizabeth C. Peyton as a creditor of the estate, was apportioned by the commissioner among the widow and children of John Peyton, and then the cause coming on to be heard in May 1830, and it being admitted that executions against the estates of the original administrators would be unavailing, the court made a decree by which their representatives, and Worthington and Cookus, administrators' of Morrow, and the administrator of Titball, out of the assets in their hands respectively, and Douglas should pay to Elizabeth C. Peyton, as a creditor of John Peyton’s estate, the sum of 5787 dollars 91 cents, with interest on 4238 dollars 11 cents, a part thereof, from the 1st of January 1830, till paid, and decreed in favour of the widow and the children the amount of their distributable share of the estate in the hands of the administrators.

In 1832, Worthington and Cookus, as administrators of Morrow, filed a bill to review this'decree, alleging specific errors in the settlement of the administration accounts, and asked for an injunction, which, though refused by the judge below, was granted by a judge of the court of appeals. This bill was answered by Elizabeth C. Peyton, William L. Clarke and wife, and Clarke as administrator of Susan Peyton and Erancis A. Peyton, denying that the objections made to the accounts were well founded. The cause came on to be heard at the «November term of the court, when the injunction was dissolved and the bill dismissed.

Previous to filing this bill of review, executions having been issued on the decrees of May 1830, and returned no effects, Elizabeth C. Peyton, William L. Clarke and Louisa M. his wife, and Clarke as administrator of Susan Peyton and of Erancis A. Peyton, in August 1830, filed their bill against Cookus and Worthington, as administrators of Morrow, who was surety of *Henry J. Peyton, Armistead and Brown, as administrators of John Peyton, charging a devastavit of Morrow’s estate, and asking for a settlement of their administration accounts. This is the case of Morrow’s adm’r v. Peyton’s adm’r,, reported in' 8 Leigh 54, and for the facts of the case, up to the period of the decree, reference is made to that report.

When the cause came back from the court of appeals, William L. Clarke, as executor of Elizabeth C. Peyton, who was then dead, and as administrator of Erancis A. and of Susan Peyton, and Clarke and wife filed their amended bill against Robert Worthington and John T. Cookus, as administrators of Morrow, Butler, Grove and Buckles, their sureties, and Stemmons the executor *183of Downey, another surety, and the said Worthington and Cookus as cosureties with these parties, for the separate devastavits of Worthington and Cookus, in which they ask that the accounts of Worthington and Cookus may be settled de novo according to the principles of the decree of the court of appeals, and that they may have a decree against the defendants, according to their legal liabilities, for the amount of the claims they had set forth.

The sureties, including Cookus, and Stemmons the executor of Downey, answered the bill. They all relied upon the act of 8th of March 1826, limiting actions against persons acting in a fiduciary character, and their sureties. The executor of Downey stated that long before he had heard of the claim set up by the plaintiffs in their bill, he had fully administered all the assets of the estate of his testator, and Butler and Buckles impeached the statement of the account of administration of John Peyton’s administrators upon the same grounds taken by Worthington and Cookus in their bill of review.

The cause was referred to a commissioner with directions to settle de novo the accounts of Worthington and *Cookus as administrators of Morrow; and he returned his report in April 1821, from which it appeared that Cookus was in advance to the estate in the sum of 3911 dollars 16 cents, as of the 1st of January 1833, with interest on 3745 dollars 56 cents, a part thereof, from that date ; and that Worthington was debtor to the estate in the sum of 7771 dollars 19% cents, as of the same date, with interest on 6942 dollars 8% cents from that time. The accounts were excepted to by the plaintiffs because, 1st, the administrators were allowed credits for the payment of simple contract debts ; and 2nd, that they wer.e not charged interest on the sums paid to distributees, .both payments having been made without knowledge of the plaintiffs’ claims, and the payments to distributees being but partial payments, and the estate of Morrow being much more than sufficient to pay all debts then known to the administrators. Another objection taken to the accounts in this court, though not taken in the court below, was, that each of the administrators was allowed a credit for moneys retained by him in satisfaction of certain simple contract debts due him from Morrow.

The cause came on to be heard in September 1841, when the court decided that the act of March 1826, did not bar the plaintiffs’ demands against the sureties, and overruled the exceptions to the commissioner’s report, and reserving the question, whether the amount found due to Cookus might be allowed as a credit upon the amount found due.from Worthington, so ás to reduce the amount which the defendants might be required to pay to the plaintiffs, gave a decree for the balance, after crediting that sum in favour of the plaintiff Clarke as executor of Elizabeth C. Peyton. And the cause coming on again to be heard in November 1841, the court expressed the opinion, that Cookus and Worthington were to be considered as one administrator, and were properly entitled to a credit for all sums disbursed by ^either; the court, therefore, refused to give any farther decree against the defendants, except for costs, and reserved to the plaintiff Clarke, executor of Elizabeth C. Peyton, and the other plaintiffs, liberty to apply for a farther decree to be paid out of any assets which might thereafter come to the hands of the administrators of Morrow.

Erom the decree of September 1841, the defendants petitioned this court for an appeal, which was allowed them.

The errors assigned by the appellants in their petition for an appeal, were, 1st, that the act of March 8th, 1826, was a bar to the claim of the plaintiffs against the sureties of Morrow’s administrators.

2d. The' administration accounts of John Peyton’s administrators should have been opened at the instance of the sureties.

These questions were argued orally by Eeigh for the appellants, and Cooke for the appellees, but the reporter was not in court at the time, and therefore cannot give a report of the argument. The objections to the decree, taken by the appellees, were argued by the same counsel in writing.

Cooke, for the appellees.

The first objection to the report of the commissioner, is the failure to charge interest on the payments made by the administrators to the distributees.

Creditors may, in equity, pursue the estate of their deceased debtors in the hands of legatees, Burnley v. Eambert, 1 Wash. 308, and this even though the testator’s effects would have been sufficient to pay both debts and legacies. Davis v. Newman, 2 Rob. Rep. 668; 1 Vern. 162.

The principle on which this right of the creditor rests, is that the legatee having got into his possession a fund equitably bound for the payment of the decedent’s debts, *he is a trustee for the creditor. And if he be a trustee, he must, on the well established principles regulating trusts, account for the interest of the trust fund in his hands, as well as for the principal, if the interest as well as the principal be necessary to satisfy the charge upon it.

If the creditors, instead of pursuing their remedy against the legatees, proceed against the executor, and obtain a judgment or decree against him, the executor shall have his remedy against the legatee to compel him to refund. Bowers’s ex’or v. Glendening, 4 Munf. 219; Burnley v. Lambert, supra. Neither of these cases state the principle upon which this doctrine is founded; but this is done in the case of Davis v. Newman, 2 Rob. Rep. 664, and it is placed solely on the ground of substitution.

These authorities are decisive of the question now under consideration. The creditor in this case, E- C. Peyton, having *184established her debt against Morrow’s estate, by the decree of 1830, had then a right, and has it still, to proceed against the distributees as trustees holding a trust fund, equitably bound to discharge her whole claim against the intestate’s estaje, and as trustees they would have been compelled to account for both principal and interest of that fund. But she has proceeded against the administrators, and as the remedy of the administrators over against the distributees extends to principal and interest, there can be no reason why their liability should be less. On this question the court is referred to Spode v. Smith, 3 Cond. Eng. Ch. Rep. 502; Kippen & Co. v. Carr’s ex’x, 4 Munf. 119; Gallego’s ex’ors v. The Attorney General, 3 Leigh 450; and Hawkins v. Day, Amb. 160.

The second objection to the commissioner’s report, is that he allows the administrators credit for the amount of the simple contract debts due to them from Morrow.

*A11 the text books and a multitude of cases lay down the rule that an executor or .administrator has a right to retain for his own debt, due to him from the deceased, in preference to all other creditors of equal degree. But this privilege is accompanied with this limitation, that he shall not retain his own debt as against those of a higher degree. Williams on Ex’ors 685; Ram. on Assets, 8 Law Libr. 174, 175. These writers refer to many cases for the principle they state, and among them all there seems to be no exception to the rule growing out of the circumstances of the case. Tested by this rule, it is clear that the administrators are not entitled to retain their simple contract debts against the specialty debts of the plaintiffs.

But it is said that a retainer by an administrator stands on the same footing as a payment, and as an administrator will be protected in paying simple contract debts, where he has no notice of debts of higher dignity, and will also be protected in such payments, as against contingent securities, where the condition is not yet broken, so .it is insisted he will be authorized to retain for his own debt in such cases.

The reason given for the rule, which justifies a payment by an administrator of a debt of inferior dignity when he had no notice of a debt of higher dignity, is “that otherwise it would be in the power of a superior creditor to ruin an executor by suppressing his security till all the assets were exhausted in the payment of debts of inferior degree.” Williams on Bx’ors 676-7, citing 3 Bac. Abr. 82, title Ex’ors L. ; 2 Fonb. Equ. book 4, ch. 2, § 2, note m., p. 406, who cites Britton v. Bathurst, 3 Lev. 113. This is the only reason given for .this exception to the general rule, and this reason does not apply to the case of a retainer by the administrator. In the first case the administrator has paid away the assets, and if required to pay a debt of higher dignity 'afterwards, he must pay it out of his own estate; but in the *case of a retainer by the administrator, the fund remains in his hands, and the delay of the superior creditor in asserting his claim, instead of ruining the administrator, only gives him the advantage of using the money at legal interest.

Although no reason is given in the books for the rule, that an administrator may pay a simple contract debt, as against a contingent security, where the contingency has not occurred, yet that reason seems to be, that perchance there never may be a breach of the condition of the bond, and consequently no debt. And therefore it is more conformable to natural equity to pay at once a debt which certainly exists, though it be a debt of inferior dignity, and so defeat the contingent and superior debt altogether, than to keep the actual creditor waiting an indefinite number of years in contemplation of an event, which may never happen.

But in deciding the question, whether the administrator may retain his own inferior, but actual debt against a superior, but contingent debt, there is no necessity to choose between these alternatives. By ^allowing the administrator to retain until the superior, though contingent debt becomes an actual and absolute debt, the fund is not placed beyond recall, but is ready, when the superior debt becomes an actual debt, to discharge it.

The true right of retainer then, is a right to retain against debts of equal dignity, and until a debt of superior dignity is established; and then the right of retainer ceases. This temporary right of retainer we have never disputed, and no greater, or other right of retainer can exist, while the rule remains in force that “an administrator shall not retain for his own debt against a debt of superior dignity.”

The counsel referred to some other errors in the report of the commissioner, but they were matters of fact and detail, and involved no disputed principle.

*Leigh, for the appellants.

Upon the right of the administrators to retain for the debts ’due'-tKemselkes,’ the/counsel for the appellees and myself, are agreed as to general principles—we differ as to the application of them. An executor or administrator may retain his own debt due from the deceased, in preference to all debts of equal degree; but not in preference to debts of superior degree. If a reasonable time has elapsed since the decedent’s death, and he has no notice of any debts of superior degree to the debt demanded of him, he is justified in paying the debt demanded, and may plead it in bar of a debt of superior degree afterwards, demanded. And with respect to bonds with collateral condition, of which the condition has not been broken, he may pay a debt of inferior dignity without regarding the superior dignity of such bond, whose condition has not yet been broken, though it may be at any moment. So far we agree.

*185The counsel for the appellees contends, 1st, for a distinction between the payment of a debt to a creditor, and the retaining a debt due to the representative himself; and 2dly, he contends that a debt due by bond, whether the administrator has notice of it or not at the time he pays or retains a simple contract debt, is a debt of higher degree than the simple contract debt.

1. The case of Shearman v. Christian, 9 Heigh 571, has settled the principle that the retainer of a debt due to the administrator himself, and the payment of a debt to another, stands upon the same footing; and that wherever the payment of a debt to a stranger will be a good administration, the retainer of a similar debt by the administrator will also be good. This court held in that case that a retainer was a payment. If this is not so, then the administrator stands not on an equal footing with other creditors. But in fact there is no distinction between paying and retaining a debt. Retaining is paying. Blackstone says, among debts of equal degree the *executor or administrator is allowed to pay himself first by retaining in his hands so much as his debt amounts to. 2 Comm. 511. So he says, the law gives an executor or administrator a remedy for his debt by allowing him to retain so much as will pay himself before any other creditors of equal degree. 3 Id. p. 18.

2. “An administrator has a right toretain as against creditors in equal degree, but not as against creditors of superior degree.” The counsel for the appellees and I differ upon the question, what is a debt of superior degree to a simple contract debt in due course of administration. He thinks that a bond debt is, under all circumstances, a debt of superior degree to a simple contract debt—that a debt claimed on an ex-ecutorial bond, before breach of the condition, is a debt of superior degree to a simple contract debt. I say that if an administrator wait a reasonable time to give bond creditors an opportunity to assert their claims, and receive no notice of any such, he may pay or retain a simple contract debt, and that in such case the bond debt is not of superior degree to the simple contract debt; and the proof is, that the payment of the simple contract without notice of the bond debt, may be pleaded in bar of the action on the bond. I say farther, that a debt claimed on an executor’s bond, is not a debt of superior degree to a simple contract debt, till the condition of the bond is broken and the breach ascertained.

In the present case, Worthington and Cookus took upon themselves the administration of Morrow’s estate, eight years before they had notice that their intestate was one of the sureties of Peyton’s administrators, and eleven years before it was ascertained that the condition of that bond was broken. By the common law, if they waited a “reasonable time,” to give creditors by bond an opportunity to assert their claims, and received no notice of such claims, they had a right to pay or retain simple contract debts. It may be doubted what is “a ^'reasonable time,” but surely eight years will more than meet its demands. ' Our act of 1825-6, Supp. Rev. Code, ch. 200, § 5, has fixed this reasonable time to nine months.

3. The allowance of credits to Worthington and Cookus, respectively, of interest on their payments to the distributees of their intestate, presents a question which has never yet been decided by this court. Every case of this kind must be decided mainly upon its own peculiar circumstances ; and though general principles may aid us in estimating the influence of circumstances, yet circumstances may take any case out of the influence of such general principles.

The record does not inform us, what was the nature of the payments made by the administrators to the distributees. One thing only is certain—the administrators did not make a general distribution of the estate; in which case, the law authorizes them to require refunding bonds to indemnify them against debts outstanding and unforeseen. All they did was to make partial advances to the distributees—advances (I have no doubt, though it does not distinctly appear) for their maintenance and education: one of the advances was “162 dollars for boarding &c. of the Misses Morrow.” At the time these advances were made, Morrow’s “estate was greatly more than sufficient to pay off the debts then known to” the administrators. And the question is, whether, under such circumstances, they did more than their duty in making partial advances to the distributees without taking refunding bonds at each advance.

If these distributees were infants at the time the advances were made, it is certain that the administrators cannot reclaim the money of them, to satisfy the claims of a creditor afterwards established, though not then foreseen. The record does not shew whether they were infants or of lull age; but whatever is necessary to support *the decree of the court below, ought to be presumed, unless the contrary appears. If an executor pay over the assets to legatees, and a creditor afterwards appears, the creditor may pursue the assets in the hands of the legatees, and the executor may be subrogated to the rights of the creditor—this was the opinion of this court in Davis v. Newman, 2 Rob. Rep. 664. But that opinion had reference to a general distribution of the assets, and to a distribution among adult legatees. The case does not go the length of saying, that a creditor, or by subrogation to him the executor, can recover of the legatees partial advances made by him to the legatees, especially if the legatees at the time of the advances made to them were infants.

The statute of Virginia, 1 Rev. Code, ch. 104, § 58, p. 389, provides, that “no distribution shall be made of an intestate’s estate, until nine months after his death ; nor shall an administrator be compelled to *186make distribution at any time, until bond and security be given by the persons entitled to distribution, to refund due proportions of any debts or demands which may afterwards appear against the intestate, and the costs attending the recovery of such debts.” It is most obvious, that the provision has respect to a general distribution of assets, and not at all to partial advances to distributees; and that the administrators, in the present case, were under no duty to require refunding bonds, even if the distributees had been of full age; and in practice, such a thing is unheard of. What the administrators have done, is what every man in their situation would and ought to have done.

Executors and administrators are, in this country, as they ought to be, held to a very strict account—but to hold them liable for every cent thejr advance to the distributees, without having any notice of, or any reason to suspect, any outstanding debt, and not only liable for the sums advanced, but accountable to the creditor for *interest on those sums, which they have never themselves used, and never made any interest or profit from, were to hold them to an extent of responsibility, which will make every prudent man extremely cautious, how he undertakes so onerous a Vust. A man dies, leaving children, and an estate amply sufficient for their support and for the payment of all his debts known to exist—-the children stand in need of food, raiment, lodging—is the administrator to let them starve or perish with cold? Is he to wait, and how long is he to wait, before he supplies them necessaries, in order to see whether any claim can be set up against his intestate’s estate, on an old executorial bond in which his intestate .was a surety? And are the distributees to starve, or to live upon' charitjr, in the interval? And if the administrator makes partial advances to them, and years afterwards an old executorial bond is made the foundation of a claim against the intestate, shall the administrator not only be held liable to the extent of the advances, but liable also to interest on such advances, of which he has not himself made any interest or profit? There is not, and there cannot be, any law which justifies such rigour. If, indeed, the administrator can be charged with notice, or with a suspicion on reasonable grounds, that the assets are insufficient for payment of debts, then he may be held responsible for partial advances to the distributees, and interest upon the sums advanced; and such, I apprehend, must have been the state of the case of Giles v. Dyson, 1 Stark. N. P. 32; 2 Com. Law Rep. 282.

The present case is yet more remarkable. The claim of Keith arose in 1804—Elizabeth Peyton’s right to be subrogated to that claim arose- in 1819, which was the very year in which Worthington and Cookus qualified as the administrators of Morrow; and she had, in 1819, the right to call the administrators to an account of Morrow’s estate. If she had done so, no partial advances would have been made to Morrow’s distributees. *But her claim was not asserted till 1827, and then asserted in the case of Grayson v. Peyton’s heirs. In the mean time, the administrators made the partial advances to Morrow’s distributees; and she now claims, that those partial advances, made in consequence of her own laches in the prosecution of her claim, shall be accounted for by the administrators, and that they shall be charged therewith, with interest on the sums advanced. Can such a claim be just?

So far from allowing the charges of interest on the partial advances, I doubt very much, to say the least, whether the full amount of the advances ought not to be credited to the administrators as of the date when they were made. I say this upon a view of the particular circumstances of this case—I am not asserting a general proposition applicable to all cases.

In 2 Williams on Ex’ors, p. 1106, it is stated, that it is not a devastavit “to pay over the whole of the assets to the legatees or distributees, so as to leave nothing to satisfy a claimant for valuable consideration, if the executor had no notice of the existence of the demand, and a reasonable time had elapsed after the death of the testator before the payment by the executor to the legatees or next of kin,” for which the writer cites without a word of disapprobation or doubt the case of Chelsea Waterworks v. Cowper, 1 Esp. N. P. Cas. 275. I do not see that either Hawkins v. Da3', or Kippen v, Carr, cited by the counsel on the other side, is contrar3r to Chelsea Waterworks v. Cowper, on the point on which the latter is cited as authorit3- here, to shew that the advances made by Morrow’s administrators to Morrow’s distributees, ought to be allowed as credits to them against the claim of Elizabeth C. Peyton as a creditor of Peyton’s estaté under the circumstances of this case. To hold them liable to the extent of these advances to the distributees, is to make them liable for losses arising from the laches of the creditor herself.

*But our question is, not merely whether they are to account to this creditor, calling on them thus lately when she might have made her demand against them the moment they qualified, for the advances the3" made the distributees, but whether they are to account to her, not only for the amount of these advances, but for interest thereon? I say, that supposing them accountable for the principal sums advanced to the distributees, they ought to be exempted from the payment of interest.

Interest is a compensation for the use of money enjoyed. The administrators never enjoyed-the. use of the money they advanced to the distributees, and cannot be charged with interest upon it.

It is on that principle, that if an executor neglect to recover money due to his testator’s estate, which with due diligence he might have recovered, though he shall be *187held accountable for the principal, he is exempted from the interest. I always understood that the decision in Webb v. Colston, that an executor who might with due diligence have collected a debt, but failed to do so, was accountable for the principal, but ought not to be charged with the interest, was founded on the principle, that he ought not to be charged with interest on mone3r which he never enjoyed the use of, and could not receive interest or profits from. The only ground on which an executor is ever charged with interest, is that he might and ought to have made interest, or used the money himself.

In Kippen v. Carr, there is not a word said about interest. Suppose that, in fact, interest was adjudged in that case,—is a decision in which the point was nowise considered, to be regarded as a decision of the point?

In Spode v. Smith, 3 Russ. 511; 3 Eng. Condens. Ch. Rep. 502, the executor, with full notice of the existence of debts to'a large amount, (near £19,000.) immediately upon the death of his testator, allowed a specific legatee to take and keep possession of specific legacies To the amount of £8000. and more, under an impression that the sale of real estate which his testator had made in his lifetime would be ample for the payment of all debts. The sale was objected to—and it was still a question whether it could be enforced. Upon a bill by creditors for administration of the estate, the executor was held responsible for the value of the specific legacies, which he had immediately delivered to the legatees, with 4 per cent, interest. And this case is quoted as authority to prove, that administrators, who some years after the death of their intestate, without notice of any demand against his estate, made partial advances to the distributees, ought to be charged, not only with the moneys advanced, but with interest on the sums advanced ! and charged with interest to a creditor, who was herself guilty of laches in not asserting her claim before the advances were made ! The case is not authority to any such purpose.

4. The other points are submitted without remark.

*

Judge Stanard had been counsel in the cause. Judge Baldwin was related to some of the parties.

†

*Be it enacted by the general*assembly, All actions, suits and motions at law or in equity, founded on bond executed by executors, administrators, guardians. committees of idiots and lunatics, sheriffs, deputy sheriffs, sergeants, deputy sergeants, clerks, deputy clerks, and other persons acting in a fiduciary character, either public or private, shall be instituted or brought within ten years after the right or cause of action shall have accrued, and not afterwards; saving to infants, idiots and lunatics, persons *non compos mentis*and *femes*covert, five years after their disabilities shall have ceased.

‡

Settlement of Accounts.—See principal case cited in Morris v. Duke, 2 P. & H. 462.

See also, monographic *note*on “Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.

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Liability of Personal Representative for Devastavit. —See *foot-note*to Lewis v. Overby, 31 Gratt. 601, in which the principal case is cited for the rule that executors, who have distributed the personal property of a decedent in his possession at his death without taking a refunding bond, are responsible to the creditors, though thejf knew of no debt due from their decedent.

See also, monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest. 5 Gratt. 6.

Point 4 in syllabus to principal case is cited in Brewer v. Hutton, 45 W. Va. 106, 30 S. E. Rep. 81; and in McGlaughlin v. McGlaughlin, 43 W. Va. 226, 27 S. E. Rep. 378.

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Appellate Practice—Error on Face of Commission er’s Report.—Errors apparent upon the face of a commissioner’s report will be considered and corrected in an appellate court, although no exception was taken to it in the court below. White v. Johnson, 2 Munf. 285; Estill v. McClintic, 11 W. Va. 399; Boggs v. Johnson, 9 W. Va. 434.

The principal case is cited for this proposition in Hyman v. Smith, 10 W. Va. 317.

See also, *foot-note*to French v. Townes, 10 Gratt. 513.

ALLEN, J.,

delivered the opinion of the court.

The court is of opinion that Elizabeth C. Peyton claiming to be a creditor of John Peyton’s estate, in the year 1827, became a party to the suit of Robert O. Grayson and Benjamin Grayson against the administrators of said John Peyton, deceased, the securities of those administrators and the administrators of John Morrow, who was one of those securities ; that this suit was in the nature of a suit on the administration bond, seeking to charge the administrators of John Peyton, deceased, with a debt, and the securities of said administrators with a devastavit; and in that suit it was competent for her to sue the administrators of John Morrow, who was a security | of the administrators of John Peyton, according to the terms of the 63d section of the act concerning executors and administrators, 1 R. C. ch. 104, which gives the right to prosecute a suit against The administrators and their securities, or the executors and administrators of either of them, upon the official bond; but that in such action on the administration bond given by the administrators of John Peyton, deceased, it would not have been regular to have joined the sureties in the administration bond given by the administrators of said Morrow, who was one of the securities in the bond given by said Peyton’s administrators. The liability of said Morrow as a surety to the plaintiff was contingent, and of the sureties of his administrators still more so. It would not have been regular, in the administrators of said Morrow, to have applied the assets of their intestate to pay the plaintiff’s claim until it had been first ascertained, that the plaintiff was a creditor of John Peyton’s estate, and secondly, that his administrators had committed a devastavit, for which their securities were liable. These facts were ascertained by the decree pronounced on the 1st Ma3r 1830. This decree, first ascertaining the liability of said Morrow, authorized his administrators to apply the assets of his estate to the discharge thereof. If they had then so applied the assets of Morrow’s estate, there would have been no breach of the condition of their administration bond. Until the plaintiff had established her claim to satisfaction out of those assets, she had no right to sue the securities on the bond for the faithful administration thereof. The failure and refusal so to apply Morrow’s assets after her right to satisfaction thereout was ascertained, constituted a breach of the condition of their bond, and gave her cause of action. The court is therefore of opinion, that the recovery is not barred by the act, passed March 8th, 1826, for the limitation of actions against persons acting in a fiduciary character.

The court is further of opinion, that decrees in chancery equally with judgments at law, are embraced within the meaning of the 63d section of the act concerning executors and administrators, and that, accordingly, it Tvas decided by this court in the case of Bush v. Beale, ante, p. 229, that after a decree and a return of nulla bona on an execution, an action might be maintained on the administration bond.

The court is further of opinion, that there was no error in omitting to direct a resettlement of the accounts of Peyton’s administrators at the suit of these securities. They were not interested in the controversy between the plaintiff and said administrators. They were bound for the proper administration of Morrow’s estate. The administrators were the proper parties to controvert the liability of their intestate. The decree of 1830 did not establish any debt from their principals, the adminis*188trators of Morrow, but from Morrow himself, and enabled their principals to apply the assets properly, the only question in which they were interested; it was immaterial to these securities whether the assets of Morrow’s estate were paid to creditors or distributees, so they were faithfuly applied. And the question whether the plaintiff had properly established her claim against Peyton’s administrators and Morrow their security, was one in which they had no interest.

The court is further of opinion, that under any view of the case, the decree would be treated as prima facie correct, and under the circumstances disclosed here, after their principals had sought to impeach the decree by bill of review and failed, and they themselves after alleging the same objections taken by their principals in their bill of review, had failed to exhibit any evidence in support thereof, there was no error in the omission of the court to direct an account of the administration of John Peyton’s estate.

The cour": is, therefore, of opinion, there is no error against the appellants.

But the court is of opinion, that there is error as against the appellee, in this, that interest was not charged against the administrators for the sums- paid the distributees. *The assets are first to be applied to the payment of the debts, and it is not competent for the administrators, by a voluntary payment to the distributees, and without taking a refunding bond, to lessen the amount of the assets. That the condition of a refunding bond to refund due proportions of any debts or demands, would have bound the distributees to have accounted for the sums received, with interest from the time when received. And the omission of the administrators to take such 'refunding bonds, which, under the act of March 8, 1826, might have protected them from suit, should not place the creditors in a worse condition. The court is of opinion, that this error in the settlement of the accounts appearing on the face of the report, advantage may be taken of it without exception.

The court is further of opinion, that though it is permitted to an executor to retain for his own debt, as against debts of equal degree, there is no warrant for the doctrine that he may retain as against debts of superior dignity. In the first case, he is permitted to retain upon the principle that he cannot sue himself, but no such reason applies to the second case. The assets are to be applied in due course of administration, to the debts, according to their dignity. A failure so to apply them, subjects the executor to a devastavit in the general. But where after a certain period they are applied to the payment of debts of inferior dignity, without notice of debts of superior dignity, the application, though not in due course of administration, exempts the executor from liability, because of the laches of the creditor by debt of superior dignity, in failing to give notice of his claim before the executor has parted with the assets, or because no creditor entitled to immediate satisfaction ought to be postponed, and the assets held up to await a contingent and collateral liability, which may never be established. In such cases, the law excuses the application of the assets to debts of inferior dignity; and as *no recovery could be had from the creditor, who has received no more than he was entitled to, and the executor has parted with the assets in good faith, it would be unjust to hold him accountable. But these reasons do not apply to the case of retainer; the assets have not been paid away, the executor has had the use of them, he must be presumed to have retained with the knowledge of his accountability to creditors whose debts were of higher dignity. Any other rule would hold out inducements to executors and administrators to deny notice of outstanding debts of superior dignity, so as to retain for their own benefit.

The court is, therefore, of opinion, that the exceptions to the allowance of credits for various sums retained by the administrators in satisfaction of claims due to them by simple contract, should have been sustained.

The court is further of opinion, that there are other errors apparent on the face of the report, in the mode of deducting the interest upon the sums paid the distributees, and in the calculations by which the sums mentioned in the decree were arrived at, but as’the opinion of the court, as already expressed, will render a restatement,and remodelling of the account necessary, it is unnecessary to correct such erroneous calculations and statements at this time. The decree is, therefore, reversed, with costs to the appellees, as the parties substantially prevailing, so far as it conflicts with this opinion, and is affirmed from the residue, and the cause is remanded to the court below, for a restatement of the account of the administration on the said Morrow’s estate, and to be further proceeded in according to the principles of this decree.