#### *Peale v. Hickle & Others.

July Term, 1852,

Lewisburg.

(Absent Moncure, J.)

Executors and Administrators — Settlement—Balance in Hands oi Administrator — Interest*—Case at Bar. — P died in 1818, leaving a widow and eight children, all of them minors except the eldest, a son who qualified as administrator. He settled his administration account in 1826, when there was in his hands of the personal estate $4179, principal and interest. The real estate was a small one. and all the family lived together, the administrator man*218agine: the estate, selling the crops and paying the expenses of the family, including the education of the children, out of the profits of the estate or his own means, with the aid of their labor. This was continued until 1846. Held : Under all the circumstances of the case, the administrator should not he charged interest upon the balance in his hands ascertained by the settlement in 1826, until the breaking up of the family in 1846; and he should be charged interest upon the whole amount, principal and interest, from that time. : ' 1 : 1 :

This was a suit instituted in the Circuit court of Rockingham county, by George Hickle and Harriet his wife, who was Harriet Peale, and four others, children of Bernard Peale deceased, against Catharine Peale the widow, and Jonathan Peale administrator, and two other children of Bernard Peale. The bill charged, that Bernard Peale departed this life intestate in December 1818, leaving a widow and eight children; that he was, seized at the time of his death of a valuable tract of land in the county of Rockingham, containing about one hundred acres, adjoining upon which there was a valuable tan-yard, and near it about fifty acres of wood land;'and he was possessed of a considerable personal estate, the precise amount of which the plaintiffs had never been able to ascertain: That the widow Catharine and Jonathan Peale had qualified as administratrix and administrator of the *estate; and that the latter was the acting administrator, and took possession of the whole assets for the estate: That he caused an inventory and appraisement to be returned, the property in which was valued at about 4500 dollars: That there was a large amount of debts due said estate, no part of which appears in the inventory: That at the January court for 1825, an order was made on the motion of the administrator for the settlement of his accounts; and in the month of April 1827 the settlement was made and admitted to record, exhibiting a balance due the estate of 4179 dollars 4J£ cents: That this settlement was wholly ex parte, and is the only settlement made by the administrator: That Jonathan Peale was the only child of age at the death of their father; and having learned the business of tanning, took possession of the tan-yard, and had received the profits arising from it ever since: That he also 'took upon himself the management of the farm; that the widow and all the children, including Jonathan, continued to reside in the mansion-house, and by great industry and economy she was enabled, with the profits of the farm, to raise and educate her children, leaving said Jonathan in the exclusive enjoyment of the profits of the tan-yard: That they continued to live in this way for ten or eleven years, when Jonathan having become a man of family, the widow Catharine employed her distributive share of the personal estate in building a house on the farm to which she and her children removed, leaving Jonathan and his family in the exclusive possession of the mansion-house and tan-yard, while he continued to manage the farm on behalf of the said Catharine and the other children: That as the children arrived at age or married, application was made by them to said Jonathan for their share of the personal estate; and although the settlement made by himself showed they were each entitled to about 350 dollars, he refused *topay more than 250 dollars, and settled with two or three of them at that sum: That he had subsequently purchased the interest of the heirs in the tan-yard property at the reduced price of 100 dollars a share.

The bill further charges that the. tan-yard was worth an annual rent of 100 dollars from the death of Bernard Peale to the time of its purchase by Jonathan Peale: That the chief products of the farm had been received by Jonathan, he supplying the said Catharine with the substantials of life, which, all things considered, would not perhaps exceed in amount the value of her dower interest in the real estate, no dower having been regularly assigned to her.

The bill further states, that no vouchers were returned with the account returned to the County court, and in their absence the plaintiffs cannot say whether or not said settlement is correct; they ask that the administrator may be required to produce them, and if any errors shall appear, that they may have leave to surcharge and falsify them: That they are advised that a commission of five per cent, had been improperly allowed the administrator; that he had not settled his account as the law directs, and is not entitled to any compensation : That it will be seen from said settlement that a large sum has been applied to pay debts due from the intestate as a security for D. Ragan, a deputy sheriff: That the plaintiffs have been informed, perhaps incorrectly, that the bond upon which said liability arose, is not legally binding upon Bernard Peale’s estate; and they therefore call upon the administrator to furnish information on the subject, to produce said bond if in his possession, or if not in his possession, to cause it to be produced, that its validity may be tested. And making Jonathan Peale in his own right and as administrator of Bernard Peale, Catharine Peale, widow of said Bernard, and the other ^children, who are not plaintiffs, parties defendants to the bill, they pray for a settlement of Jonathan Peale’s account of administration upon the estate of Bernard Peale; and also that he be required to render an account of the rents and profits of the tan-yard for the time he has occupied it; and that commissioners be appointed to assign the widow her dower in the real estate, and to divide the remainder among the children ; and for general relief.

; i ; ■ Jonathan Peale answered the bill. He admits the property of which Bernard Peale died possessed, as stated in the bill, except as to its value; that there were debts due the estate not stated in the inventory, but *219says they were all embraced in the settlement made; says that after the stock in the tan-yard was sold, he took possession of the tan-yard, and conducted it for his own benefit, except as is afterwards stated; and that so conducting it, he kept no account of the profits. He admits that they all lived together, until his mother built the house on the farm: That the house was built in part by means of her interest in the personal estate, that interest having been reduced however, by the amount that she had retained at the appraised price, which was 455 dollars 90 cents; that the house and outhouses cost about 1600 dollars, and the balance, after applying her said interest, he paid himself.

He says that the personal estate, as shown by the account settled, amounted in 1826, to 4179 dollars *A%*cents. That the farm, at his father’s death, was not worth more than 1666 dollars 66 cents, the sum he gave for it in payments, when land bore a higher price than it then did. That the tan-yard lots were not worth more in his opinion than 800 dollars, and he had never heard them estimated at more than 1000 dollars; the wood land was worth 150 dollars, and there were two slaves who were appraised at 350 dollars. These were *all the means for the support of his mother and eight children, all younger than the defendant, who was twenty-one years old in January 1818. That in- his opinion the farm would not have rented for more than 60 or 70 dollars a year, the tan-yard lots and improvements thereon for about 50 dollars, the slaves for 30 dollars per year, and the wood land for little or nothing; but that it was his father’s express desire on his death bed, that the family should be kept together; a wish which the defendant felt every desire to carry into effect. He knew full well that the interest of his mother and the children was not of itself sufficient to support and educate them, but he believed that they could aid towards that end, and he determined that whatever deficiency arose should be supplied by himself, and for that purpose he carried on the tan-yard exclusively for himself, taking therefrom from time to time, whatever was required for the wants of the family; and at his mother’s request, he managed the farm and applied the proceeds to the support of the family. That he either from the proceeds of the farm or out of his own means, aided by their industry and economy, provided for the support of the family, paid all their bills at the stores, educated them, and furnished and maintained them as respectably as other young ladies in the neighborhood; and in this way paid them at least 10 per cent, and perhaps more, on their interest in the estate. He insisted that he was properly allowed commissions, as the account was settled under an order of the court and returned to court within six months after the expiration of the two years required by the law; and moreover, that it was then too late to raise the question, as fully ten years had elapsed since the youngest of the children attained the age of twenty-one; and he relied upon the statute of limitations to protect him against all attempts to set aside that settlement. He stated that the dower of *his mother had been laid off and assigned to her by commissioners appointed by the Count}' court, and their report had been approved by the court; and he insisted it ought not now to be disturbed. That as to the money paid for Ragan, he had been sued and employed counsel and made efforts to defend the case, but it was in vain, and judgments were rendered against him: And he stated two or three small debts due to the estate -which had not been introduced into the settlement of the account in 1827, and also some payments which he had subsequently made. And he insisted that in 1840, an agreement had been made between the plaintiffs and himself, whereby they were each to receive, when they ceased to be supported as herein before stated, the sum of 250 dollars for their interest in the personal estate; that being about the amount of the principal due to them according to the settled account ; the rents and interest going to their support. And that he was always ready and willing to pay this amount to each of them who had not received it.

A large mass of testimony was taken in the cause, having relation chiefly to the manner in which the family were sustained. It is reviewed by the judge who delivered his opinion in the cause, and need not be further stated.

Under an order of the court made in 1849, a report of the administration of Jonathan Peale upon the estate of Bernard Peale, was made by a commissioner, from which it appeared that there was due from the administrator on the 1st day of July 1826, the sum of 3012 dollars *1)4*cents of principal, and 1194 dollars 52 cents of interest, equal to 4206 dollars *53)4*cents. To this report there were no exceptions, but the commissioner submitted to the court the question whether the administrator should pay the interest. He also made three special statements at the instance of the administrator.

*The cause came on to be heard in October 1850, when the court held that Jonathan Peale, the administrator, should account for the sum of 4206 dollars *53)4*cents, with interest on the principal from the 1st day of July 1826; and holding that the widow’s thirds and the share of three of the children had been paid, he gave a decree in favor of four of the plaintiffs, each for the sum of 350 dollars 54 cents, with interest on 251 dollars, a part thereof, from the 1st day of July 1826, until paid. And commissioners were appointed to divide the land, except the tan-yard property, which had been purchased by Jonathan Peale, amongst the eight children. From this decree Jonathan Peale applied to this court for an appeal, which was allowed.

Price, for the appellant.

Fultz, for the appellee.

*

Executors and Administrators — Settlement of Accounts. — In Leach v. Buckner, 19 W. Va. 45, it is said: “The principle is well settled, that the *asparte*settlement of a fiduciary is orily *prima facie*correct, and parties interested may file a bill to surcharge and falsify the account so settled. Anderson v. Fox. 2 H. & M. 261; Preston v. Gressom, 4 Munf. 110; Newton v. Poole, 12 Leigh 112; *Peale*v. *Hickle, 9 Gratt. 437;*Corbin v. Mills, 19 Gratt. 438; Shugart v. Thompson, 10 Leigh 434; McGuire v. Wright, 18 W. Va. 507.” See, in accord, citing the principal case, Seabright v. Seabright, 28 *W.*Va. 435, 438.

See generally, monographic *note*on “Executors and Administrators.”

*220LEE, J.

The first and sixth errors which are assigned in this case, are that the suit was brought against Catharine Peale in her character of widow and relict of Bernard Peale, and not as administratrix, and that the decree of the court is several against the appellant, whereas it should have been against him and the said Catharine, jointly. The bill it is true, in naming the parties prayed to be made defendants in the cause, does not specially designate her as administratrix, and in that capacity as well as in that of widow, ask that she -be made a party; but it does allege that she and the appellant qualified as administratrix and administrator. The whole assets of the estate came to the hands of the appellant, and he exercised exclusive control over them and disposed of them without interference on the part of the administratrix. It is not pretended that the latter received any part, or that she is liable as for any received and disbursed by her. It is true that having united in the administration bond *with the appellant, she would under the decisions of this court in the cases of Morrow’s adm’r v. Peyton’s adm’r, 8 Leigh 54, and Boyd’s ex’ors v. Boyd’s heirs, 3 Gratt. 113, be liable as security for the said appellant for any assets received and disposed of by him; yet if the distributees were content to take a decree against him alone for the amounts respectively due them and for which he was liable primarily as principal, surely it is not for him to complain that the decree was surrendered. If Mrs. Peale had been dead, it would not have been necessary to make her representative a party; Wills’ adm’r v. Dunn’s adm’r, 5 Gratt. 384; nor does it seem to be error to omit her as such, though living, under the circumstances of this case.

Another objection taken by the appellant is, that the decree was rendered without regard to the payments proved to have been made by him to the appellees at different times, and which are thus disallowed by the court. The evidence in relation to such supposed payments is extremely vague and uncertain. Small amounts appear to have been occasionally advanced by the appellant to his sisters or some of them, but they would appear to have been in the-nature of gratuities, or it may be were intended as an acknowledgment of and compensation for sewing and other services, which appear to have been cheerfully rendered by them to their brother and his family. It can scarcely be considered that they were intended by the appellant at the times they were made, as payments on account of the distributive shares due them of their father’s estate. He produced no account of any such payments before the commissioner, and it is to be presumed that he kept none, evident^ not regarding them himself as matters to be remembered or set up when he came to pay over to his sisters their shares of the estate. The amounts proved are inconsiderable and tvery imperfectly ascertained, and the appellant took no exceptio'n to the commissioner’s report in which the amount for which he was liable according to his mode of stating the account was determined, without allowing him credit for any such payments. Upon the whole, I think that the court was right in disregarding them, and that they were properly disallowed.

An ex parte settlement made by an administrator of his account as such with the court by which he was appointed, though not final or conclusive, is yet prima facie evidence of its correctness till the contrary is shown. It forms no barrier to a bill in equity specifying errors, whether of law or of fact, and impugning the settlement upon that ground. The parties interested may surcharge such a settled account by specifying items for which credit should be given, but which are omitted, or may falsify by pointing out charges improperly made. It is impossible for the administrator, under general charges not specifying errors, to defend himself properly, if the plaintiff may come at the hearing with proof of those errors of which the defendant has before heard nothing. And not only the duty of specifying errors, but also the onus probandi, devolves on the party complaining. The court will take it as a stated account and establish it, unless errors be alleged and'proven. 1 Madd. Ch. 103; Stoughton v. Lynch, 2 John. Ch. R. 209; Nimmo’s ex’ors v. Commonwealth, 4 Hen. & Munf. 57; Atwell’s adm’r v. Milton, Id. 253; Newton v. Poole, 12 Leigh 112. And if no evidence be exhibited to surcharge or falsify the account, and nothing improper in it is disclosed by the answer, the court will not refer the case, but the bill will be dismissed. Wyllie v. Venable’s ex’or, 4 Munf. 369. And it would seem that where specific charges are made, the enquiry will not be opened beyond the special matter charged, though the bill may contain a general charge and a prayer for a *full account. Consequa v. Fanning, 3 John. Ch. R. 587; S. C., 17 John. R. 511. In this case the bill called for the production of the sale bills and vouchers on which the settlement was made, and asked leave to surcharge and falsify, if errors should appear upon their production; but the only items complained of in the account as it appeared, and which were specified, are the allowance of a commission of five per centum to the appellant, upon the ground, as alleged, that not having made the settlement within the time prescribed by law, he was not entitled to any compensation; and the payments made on account of the liability of the decedent as security for one Ragan, a deputy sheriff; the bill alleging that the complainants had been informed, perhaps, incorrectly, that the bond on which said liability was founded was not binding upon the estate, and calling upon the appellant to furnish information upon the subject. With regard to the complaint that the commission had been improperly allowed, there seems to have been no foundation for it whatever. The act of the 16th of Eebruary 1825 (Supp. Rev.- Code *2211819, p. 215), provided (1 8, p. 217), that it should be the duty of every executor or administrator theretofore appointed to apply to the court to appoint commissioners for the purpose of stating and settling his accounts within two years from the commencement of the act, and also to cause his accounts to be so settled within six months after such order should be procured, on pain of forfeiting all right to commission or compensation for administering so much of the estate as should not have been settled agreeably to the provisions of that act. By the 12th section, the act of the 19th of February 1823 was repealed, and the law declared thenceforth to be as if that act had never passed. It appears that Bernard Peale died and the administrators qualified in 1818, and the settlement was returned to the court and ordered *to be recorded at the April term 1827; so that it was made within the time prescribed by the act.

With regard to the other supposed error in the account, the allowance of the payments made on account of the liability of the estate for Ragan, the deputy sheriff, it was not directly charged as such, and the bill alleged that the information on which it was suggested might be incorrect, and called on the appellant to give the proper information in regard to it. He did so in his answer, stated that he made the proper defence, but the court had decided against the estate, and what he had paid he was compelled to pay under the adjudication of the court; and there was no evidence upon which to question the correctness of his answer upon this subject. I think, therefore, that the order of reference made on the 15th of May 1849 was perhaps too broad in giving the complainants the right to surcharge and falsify generally the settlement of July 1826 before the commissioner, and that the settlement and account which he was directed to make should have been restricted to the correction of any errors apparent on the face of the former settlement, and the bringing into the account the matters which were admitted in the appellant’s answer not to be embraced in it. But this is not material, because the commissioner, to whom the case was referred by the court, has not exceeded the limits within which, as I think, the power of correcting the settlement of 1826 might be properly exercised ; and has, by his mode of stating the account, ascertained an amount to be due the estate from the appellant, not varying much from that of the commissioner of the County court, in the settlement of July 1826; and to this report no exception whatever has been taken. I think, therefore, the balance ascertained to be due on the 1st July 1826 by commissioner Tams, was properly adopted by the court as the basis of the decree which it pronounced.

*It is contended by the appellant, however, that the matter in controversy between himself and the complainants was adjusted by an agreement made in 1840, that each would receive the sum of 250 dollars in full of her distributive share when she left the family ; and he relies upon the deposition of Samuel Newman as fully establishing this agreement. It appears, however, that Newman was the security in the administration bond; for although that bond is not exhibited, nor the fact of his suretyship directly proven, yet when an exception is taken to his testimony, and that reason assigmed, a formal response is filed to the exception by the appellant’s counsel, in which the fact of such suretyship is not denied or questioned; but a reason suggested why he was not thereby disqualified as a witness. So that it must be taken as admitted that he was in fact such surety, and his testimony is excepted to as that of a witness interested and incompetent. It is answered, however, that the settlement was made in 1826, and that Evelyn, the youngest child, became of age in 1837, and thus that more than ten years had elapsed since the cause of action had accrued, and since the youngest child became of age, and therefore that Newman would be protected by the statute of limitations against any liability on the administration bond, and is therefore no longer interested, and his competency as a witness is restored. I do not deem it necessary, however, to stop to consider this point, because I do not regard the testimony of this witness as satisfactorily establishing such an agreement as that contended for. It is vague and indefinite, proving rather a conversation and discussion in relation to the matter, than any formal or positive agreement, and one of the appellees, Mrs. Hickle, the witness himself states, was not present, though he understood she was either in the house or expected there; and, indeed, there is no sufficient consideration shown *for such an agreement, had it been more clearly shown, to make it binding upon the appellees. I dismiss it, therefore, without further consideration.

The last question to be considered is that of the allowance of interest on the distributive shares, and from what time. It appears very manifest that the family remained, and were kept together after the death of Bernard Peale, by the mutual understanding and consent of all the children as soon as they successively became old enough to take thought on the subject, and for the common benefit and advantage of all, in conformity to the wish to that effect expressed by the father in his last illness. The appellant being the oldest son, and perhaps the only child that was of age at the death of the father, naturally became the head of the family, subject to the advisory influences of the mother, and he seems to have stood in loco parentis towards his sisters as long as they remained united and in harmony. Under his care and good management an estate of inconsiderable value was made to yield ample means for the comfortable support of quite a large family. The sisters were most carefully tended, raised and educated through his *222kind and generous provision for them, doubtless aided by the affectionate care of their excellent mother. They appear to have been denied nothing that was necessary for their health, comfort and happiness, and nothing that was required by their associations or the customs of the highly respectable circle in which they moved. Ample provision was made for their wardrobe, and that it should be such as was proper and becoming. Unlimited credit was given them upon the appellant’s account at the stores in which he dealt, and the accounts were paid without any objection being made to their amount; and presents wefe made them from time to time by their brother, -in articles useful or agreeable to them. Ample provision was made to enable them to *visit their friends and acquaintances at pleasure, and to receive and entertain their company in a hospitable and becoming manner. All this was done, or very nearly so, out of the products of the industry, skill and judicious management of the appellant; for their mother had very little means to spare to be applied to their support. Indeed, it would seem that her share of the personal estate of her husband must' have been mainly expended in the construction of the house which she built, or at least a large portion thereof was so applied. It is undoubtedly true, as showing evidence in the cause, the appellant’s sisters were very meritorious girls, economical, thrifty and industrious, and that while he was discharging the duties of a good brother towards them, and supplying the place of their deceased father to the full measure of his ability, they, on their part were by no means remiss in the performance of all the kind offices, and rendering all the services due from them as affectionate sisters and members of one family. They no doubt did good service, and gave their brother and his family much necessary and valuable aid in the economical arrangements of the household. But it can hardly be thought that six-girls could be at the same time usefully or profitably employed in a family not larger than that of the appellant, and most or much of their time was no doubt spent in work for their own use, or to gratify their own fancy and taste. It is very clear they never stood on the footing of hired girls, but were in all respects treated as cherished members of the family, with all the rights and privileges as such, and with all the comforts which they probably would have enjoyed if their father had lived.

After a careful perusal of the testimony in the case, voluminous as it is and embracing somewhat conflicting opinions and varying estimates of different witnesses, I cannot resist the conclusion that, considering *the manner in which the sisters were raised, educated and maintained by their brother, it cannot be an unreasonable pretension on his part to claim that he should be allowed the modicum of interest on their shares of the personal estate, and their portion of the rent of the farm and tan-yard, and the hire of the two slaves over and above the services rendered by them in the family, whilst they remained with and were supported by him; and that during that period, he ought not to be charged with interest upon their distributive shares of the personal estate.

I am of opinion therefore that the court erred in giving interest on the distributive shares of the appellees from the date of the settlement in July 1826, but that each share (without discriminating between principal and interest) should bear interest from the time at which the appellee ceased to remain with and to be supported by the appellant, which, as well as I can determine from the record, was about the 1st of July 1846; and that therefore the decree of the Circuit court should be reversed with costs to the appellant, and a decree now entered in favor of each of the four appellees, Hickle and wife, Amanda M., Caroline and Evelyn B. Peale, for the sum of 350 dollars 54 cents, with interest thereon from the 1st day of July 1846, till paid; and that the cause should be remanded to the Circuit court to dispose of the question of costs reserved by that court, and also the report of the commissioners appointed to assign the widow’s dower and divide the real property among the heirs.

The other judges concurred in the opinion of Eee, J.

The decree was as follows:

The court is of opinion that the Circuit curt erred in giving interest upon the distributive shares due the appellees, George Hickle and wife; Caroline Peale, ^Amanda M. Peale and Evelyn B. Peale, from the appellant, as administrator of the estate of Bernard Peale, from the 1st of July 1826, the time of the settlement by the appellant of his account as such administrator as aforesaid, with the commissioner appointed by the County court of Rockingham for that purpose; and that in lieu thereof, it should have allowed interest on the gross amount of each distributive share, (without discriminating between principal and interest,) from the time at which the said appellees ceased to reside with and to be supported by the appellant, which time may be assumed to be the 1st of July 1846.

Therefore it is adjudged, ordered and decreed, that the said decree be reversed and annulled so far as it relates to the amounts required to be paid by the appellant to the appellees, Hickle and wife, Caroline, Amanda M. and Evelyn B. Peale, with interest thereon as aforesaid, and that the said appellees do pay unto the appellant his costs by him in the prosecution of his appeal in this court expended. And this court, proceeding to pronounce such decree touching the matter aforesaid as the said Circuit court ought to have rendered, it is adjudged and ordered that the appellant do pay to the appellees, Hickle *223and wife, the sum of 350 dollars 54 cents, with legal interest thereon, from the 1st day of July 1846 till, paid ; that said appellant do pay to the appellee, Caroline Peale, the sum of 350 dollars 54 cents, with legal interest thereon, from the 1st day of July 1846 till paid; that the appellant do pay to the appellee, Amanda M. Peale, the sum of 350 dollars 54 cents, with legal interest thereon, from the 1st day of July 1846 till paid, and that the appellant do pay to the appellee, Evelyn B. Peale, the sum of 350 dollars 54 cents, with legal interest thereon, from the 1st day of July 1846 till paid. And it is further adjudged and ordered that in all other things *the said decree be affirmed. And this cause is remanded to the said Circuit court, that it may dispose of the question of costs reserved by it until the final decision of the cause in the said Circuit court, and for such action as may be necessary and proper in the premises growing out of so much of said decree as relates to the assignment of dower to the widow, and the partition of the real estate of the said Bernard Peale among his heirs at law, and for further proceedings therein to be had. Which is ordered to be certified to the said Circuit court.