#### Richard Arnold *et al. v.*Daniel Blackwell and George Byars.

'■Upon a reference of an executor’s account to the clerk, he lias power to determine, whether a. slave was the property of the testator or the executor.

This cause was removed from Rutherford. The plaintiffs were the residuary legatees of *Joel Blackwell,*who died in 1821, and the defendants were his executoi-s. The bill, filed in 1823,. charged that they had converted a considerable portion of the estate of their testator to their own use, denying that it was a part of the assets — particularly, that the defendant, *Blackwell,*claimed a valuable negro man, under a bill of sale from the testator, which the plaintiffs alleged was either fraudulently ■obtained, or fraudulently set up as title — that the defendant was the general agent of his father, the testator, who was old, infirm and intemperate — that when drunk, the testator had agreed to sell this slave to a neighbour, one *Simmons,*for a small price j and in order to avoid performance of the contract, the defendant, *Blackwell,*persuaded the testator to execute a bill of sale for the slave to him, and antedate it, so as to overrun the date of the sale to *Simmons,*and thereby induce the purcha*2ser to refuse a compliance — that the testator being anxious to rescind the contract, complied, and that after his death, the defendant, *Blackwell,*claimed the negro under this bill of sale. Other omissions in rendering his accounts, were charged against the defendant *Blackwell.*There were no specific allegations of fraud or concealment against the defendant *Byars.*

The defendant, *Blackwell,*in .hfs answer, denied all the charges in the bill, except that as to the negro. He admitted the agreement by the testator to sell the slave to *Simmons,*and his subsequent wish to avoid that sale, and averred, that the testator told him, if he would contrive to have the bargain rescinded, he would give him, the defendant, that slave — that as well to induce the purchaser to rescind the bargain, as to effect the gift, the bill of sale was executed. Ho denied the right of the plaintiffs to an account of the slave, and insisted that he had made a full return land account of all the assets in his hands.

The defendant, *Byars,*denied ever having received any assets of the testator, and stated- that he had left the management of the estate to the defendant, *Blackwell.*

A reference to the clerk was directed, who reported,, that the defendants had settled their accounts with the commissioners, appointed by the County Court; that after allowing them g 35 for commissions, there was a balance of g 29, 76 in the hands of the defendant, *Blackwell ;*that upon an examination of the testimony before. him,, he had charged the latter with *$*500 for the value of the negro mentioned in the pleadings, and also with other small omissions, amounting to g 19 ; and further, that upon the evidence, he had charged the defendant, *Byars,*with g 300 for the value of a female slave, which he, the clerk, supposed to belong to the testator.

The defendants excepted, 1st. Because the clerk erred in undertaking to decide upon the title of the negro claimed by *Blackwell,*and also because his decision was erroneous.

2d. Because- tbe clerk had erred in charging *Blackwell*g 19 for the small items mentioned in his report;

*33d. Because he had allowed the defendants no conn missions for settling the-estate.

4th. Because he had erred in chaining, the defendant, *Byars,*with g 500, as. the value of a female slave.

*Badger,*for the- plaintiff.

*Hogg, contra.*

HenbeksoN, Chief-Justice.

The-case comes on upon, exceptions to.the report.. The first exception consists of two parts: first, that, the clerk had not power to try the title to the slave; and secondly, if he had, that he had improperly charged the defendant *Blackwell*with, his-value, as-part oftestator’s estate.

There certainly can be no force in the • first objection. It is in substance saying that the court, for whom, the clerk acts, has no right to try, the question. What lie does has no force, until ratified, directly or indirectly,, when it becomes the act of the court, in which, his urgency is entirely lost. What, he did only facilitated, our labours, as. we might have done the act without his aid.

As to the latter part of the exception, that the slave belonged to the defendant, *Blackwell,,*and not to his testator, we concur in the opinion of the clerk, notwithstanding. the evidence proves a bill, of sale from the testator to the defendant, as it at- the same time provea a very foul fraud practised by the latter on the former,, by using the bill of sale for a purpose contrary to the intent with which it was given. This exception.is therefore overruled.

The second exception must share the same fate, for it.is satisfactorily proven, that the small articles charged to the defendant, belonged to the testator, and not. to the defendant.

We are somewhat at a loss to understand whether it is meant by the third exception, that commissions were not allowed on the additional articles wherewith the defendants are *now*charged by the clerk, or that they, had not been allowed on their former settlement. If the former be meant, there are two objections. The first is, pay*4ment to a legatee, or distributee, is not a disbursement within the meaning of the act of Assembly giving them, and receiving a debt from himself is not a collection, upon which they are allowed to an executor. But there is a second ground of objection, which must prove fatal to the defendant, *Blackwell.*Commissions are allowed on fair transactions, and to honest and faithful agents. I speak now exclusively of the defendant, *Blackwell,*who was willing, from his own answer, to join with (and the pro-babiiity is, to advise) his poor, old, superannuated fa-yie{,_ ^ c]1(ia£ *Simmons,*by antedating his bill of sale, and now fraudulently uses it against the old man. If he means, that commissions were not allowed on his former settlement, this is not a proper time to bring forward the claim. The presumption is, that they have been allowed, or the claim brought forward and rejected. But it appears, -that heretofore, when a settlement of his accounts was made, by commissioners under an order of the County Court, -the sum of thirty five dollars was allowed the executors for the payment of debts, and as compensation for services rendered before the division. And it is now eight or ten years since they ought to have settled their accounts. This exception is therefore overruled.

Executors are not entitled to commissions on debts due from themselves to uponeSpayments to legatees.

they allowed a dishonest executor. Neithei aie

Strictly speaking, we ought perhaps also to disallow the fourth exception, in favor of Byars, the other executor, in regard to the female slave. But as he says he never acted on the estate, and as this bill is *in its*frame rather a bill to surcharge and falsify, and all the specific charges are against the other defendant, and nothing is alleged as to the administration of *Byars,*except by general words, he might suppose tha1 he was joined only for conformity, and may have been surprized by that charge. We will therefore refer the case again to the clerk on that point. The report is therefore confirmed, except as to the charge of g 300, against the defendant *Byars,*as to which it is again referred to the clerk, with power to examine the parties on oath, and to hear such proof as they ¡may offer and report to this court.

*5Decree: It appears from the report, that there is in the hands of the defendant *Blackwell,*exclusive of such interest as may be due thereon, the sum of five hundred and forty eight dollars, principal, decree, that he pay the same with interest thereon, to be computed by the clerk of this court, at the rate of six per cent *per an-num,*from the time of the death of the testator, taking the time of his death, from the admission in the defendant’s answer. And that in default of such payment that execution issue therefor. Let the defendant *Blackwell*pay all the costs of this suit, except the costs of the defendant *Byars,*which are reserved for further order.