#### Mary Finch *et al.*v. Robert Ragland *et*al.

The court presumes against an administrator dealing '-ivith the estate for his own benefit, or that of a co-administrator ; or claiming commissions while he keeps no accounts. Yet under special circumstances such dealing's may be.supported, and commissions allowed.

If a written statement, not on oath, of matters relevant to an inquiry before the master be received, and acted upon by him, the inadmissibility of such statement cannot be made the ground of exception to his report, unless the objection was taken before the master. *Miter,*where the master receives a written statement of matters, which if sworn to would not have been admissible, because irrelevant without the production of a judgment or other record.

This bill was filed in August 1827, in the court of equity of Chatham, by the plaintiffs, the widow and next of kin of *Jklam*Finch, for an account and settlement of the estate. It appeared upon the pleadings, that *Finch*died intestate in 1807, and administration was shortly after committed to the defendant *Robert*and to one *Abraham Harper,*who died in 1810 intestate, and upon whose estate the other defendants *Henry Branson*and *Thomas Ragland*administered.

In the court below it was referred to the master to state an account of the administration of *Finch’s*estate, and to his report exceptions were taken by both parties j after which the cause was transmitted to this court, and here, at December term, 1831, the exceptions were ar*138gued by

for money"of li-nolFstócUy legal evidence ofdis-an'administrator especially where is^due^y Paccount. But if receivetTandac^ ted^on bjMhe objection made before him, the exception cannot afterwards be taken.

*W. II. Haywood,*for the plaintiffs, and *Nash,*for the defendants.

No statement of the proofs or pleadings is deemed necessary to a full understanding of the opinion of the court, which was delivered by

Rums, Judge

The first exception of the plaintiff embraces a number of *items*of disbursement by the administrator, which it is said ought not to be allowed, because the payments are not expressly proved, but evidenced only in some cases by the receipts of the creditors, and in others by possession of the justices’ judgments.

It does not appear that this objection was made before the master. It would be manifestly unjust to take the Part*es by surprise with it here. All the bonds are receipted, and also the judgments given against the intes- and they appear to be fair upon their face, Such receipts of persons living are not strictly legal evi^ence> show a full administration, and especially upon accounts. But when they are taken and acted on by the “aster, without objection then made, one cannot be heard in a subsequent stage, unless it be founded on something unfair appearing. An instance of the last exists in the case before us. A receipt of *John Farrar*is offered by .... the defendants, which is dated m 1809. It is obviously 0f a ]ater period, and was first written4* 1830.” If this credit rested on the receipt, it would be rejected. But it does not. -The judgment, to which it refers, was rendered against the administrators themselves in 1808 *;■*and a lapse of twenty three years, and the possession of the paper by the defendants is a strong presumptive evidence of the payment by them. For these reasons, the first exception of the plaintiff is overruled. It might be referred back on this point, if the plaintiff had upon affidavit stated a well grounded belief, that injustice was done.

A part of the second exception of that party is founded on the master’s having received in evidence several receipts of sheriffs, expressed to be for money paid on *139judgments and executions in court, instead of having the record. This would be allowed, but has been expressly abandoned by the plaintiff, and is therefore disallowed.

The third exception arises upon this state of facts Early in 1806, *James Finch*purchased from the defendant, *Robert Raglaml,*two negroes, at the price of $650, for which he gave his bond with the intestate, Mam, his surety, payable December, 1807. The intestate died in November, 1806, before which time *James*removed to Georgia. The bill charges, that he was well a-hleto pay the debt, but that the defendants lost it by neglecting to sue, and puts a direct interrogatory to the defendants, whether *James*was not solvent. The defendant, *Branson,*one of the administrators of *Harper,*says, that he has no particular knowledge of the residence and circumstances of *James Finch,*but that he has always understood that he removed to Georgia, and was insolvent. The defendant *Robert Ragland,*the surviving administrator, says, that *Janies Finch*became indebted here, and was obliged to sell one of the negroes to one *Snipes*in Chatham, who paid him, *Rugland,*$160 on his bond when it fell due ; that he then transferred the bond to *Harper;*that *James Finch*was then insolvent, and has remained so ever since, as he believes. The plaintiffs have taken the deposition of *Crawford,*who says that he lived with *James Finch*in Georgia in 1805, and thathe was then able to pay $600 ; for that in the next year, 1806, he came into this state anti bought two ne-groes, which he carried out. Upon this case, the plaintiffs contend that the administrators were bound to sue, or show the insolvency of *James Finch :*while the defendants insist, first, that they were not bound at all to go out of this state ; and secondly, that the insolvency sufficiently appears. Upon the first point, the court sees .no reason to question the rule lately laid down. But it is not necessary to consider its application to the present case, because the insolvency of *James Finch*sufficiently appears. His solvency and the neglect of the defendants are directly alleged in the bill. They are as *140directly denied in the answer. That the defendants did make exertions to collect the money from him is not pro-tended ; but if lie was, in fact, insolvent, exertions would have been unavailing. That fact is positively affirmed in the answer, in a response to an express allegation of the plaintiff, it may be said, that the defendant ought to discharge himself by proof. In such case, the answer is proof. If an administrator inventory a debt as desperate, he cannot be charged with it but by proof on the other side, that it -was collected or might hnvfi so; ischt have been. Here the plaintiffs tiie defendants upon .their own oath. They must take their answer — subject, indeed, to be disproved. This the plaintiffs have attempted; but instead of succeeding, their case is tiie rather weakened by it. *James Finch-is*the brother-in-law and uncle of the plaintiffs, and it is presumed better known to them than to the defendants. Yet they have examined but one witness, and he in North Carolina, who only proves, that in his opinion, *James Finch*was able to pay this debt two years *before*it fell due. The reason be gives Tor that opinion is, that he bought two negroes in this state in 1806. He does not mention any other property. It turns out, that he had not paid for them, but that he bought them on the credit of his brother ; that-they are the very negroes for which the debt now in controversy was contracted; and that he was obliged to soil one of them, before he returnee! to Georgia. The inference from this deposition cannot be that he was solvent; but as this is all the proof which the plaintiffs have been able to collect, the answer is rather fortified by its insufficiency. The third exception ought therefore, in my opinion, to be overruled. But a majority of the court is of opinion, that the fact of Jumes *Finch’s*solvency or insolvency doth not sufficiently appear in the answers ami proofs, to enable the court to determine the propriety of subjecting the plaintiffs or defendants to the loss of this debt; and that it is a proper case for a further inquiry by the master. This exception, and tiie credit to which it refers, will therefore stand for the present, as being neither allowed or disal*141lowed ; and a further inquiry will be directed to ho made on this point, in time to act on the report at the next term.

*140*Per*Rujífijí, ,T. IViiere the solvency of the debtoi' and the loss of the debt by the neglect of the administrator are alleged in the bill, and the defendant, in answer to an interrogatory framed upon that allegation, denies the solvency and neglect, the answer is proof for the defendant, and it is incumbent on tiie plaintiffs to disprove it.

Where in such case the fact of solvency or insolvency does iyjt appear upon the-proofs satisfactory to the court, a further inquiry \«U be, ordered besare the master.

*141It is not a universal rule, that an administrator who keeps no accounts shall be allowed no commissions. It is however a very general rule, and will only admit of an exception under very peculiar circumstances.

The fourth and fifth exceptions relate to the allowance of commissions. It is not a universal rule, that commissions will not be allowed where an account has not heen kept. But it will be a general rule in this court, since it argues either a fraud, or negligence which nearly amounts *to it.*Here it does not appear, that the defendant ever returned to the County Court an account current, or got an allowance of commissions there. Neither does he exhibit an account with his answer. A trustee must be indifferent to the fairness of his conduct who is unable to render any account. It imposes upon the *cestui que trust*the burden of hunting- u-p evidence to charge lam-; whereas an honest man would charge himself. Under these circumstances, all claim for commissions would he rejected, were not the condition ot the defendant very particular. He is a surviving, administrator, and his co-administrator, who transacted much of the business, died nearly twenty years ago. The children of the intestate were infants, and the defendant avers that he frequently applied to their- guardian to come to a settlement, and obtained the irregular but common order of the court appointing auditors ; but the guardian would do nothing. This may serve for an excuse in the present case, considering the loose manner, in which executors have been permitted to keep their accounts ; but it will not be taken as a precedent. The *court*doth not therefore positively allow these two exceptions, (fourth and fifth,) in their whole extent. But the exceptions are allowed, so far as they relate to the commissions calculated on debts owing from the intestate to either of the administrators, or on debts due to the intestate from them ; but this does not include the prices of property bought by them at the sale, because they are charged with the prices obtained upon the re-«wd-es, in all ether respects, the matter of these two exceptions is reserved until the coming in of the report now to be ordered. If upon computation it shall turn *142out, that the defendants had, including a reasonable commission, disbursed the whole estate or very nearly, then the presumption that the accounts were withheld from improper motives will he rebutted.

An executor Who keeps no accounts is chargeable with interest.

The production of the intestate’s notes by an administrator is not sufficient proof of a disbursement.

Having disposed of the exceptions of the plaintiffs, we cqme now to those of the defendants.

The first is against the charge made by the master, of *interest*on the debts due the intestate, as mentioned in the inventory, from the time they fell due, and that on the sales made by the administrators, from the time they fell due. This objection rests upon the principle, that executors are not liable for interest before the expiration of two years, unless it be proved they received it.

If debts bear interest, of course the executor receives it up to the time of payment. If he will notkeep accounts, tq show when he did receive the money, and how much, there are but two things the court can do. One is to charge him with interest, at the risk of making him pay it while the money lies by him. The other is, to *let*him keep the. interest actually received by him as his own, and use the testator’s money for his own purposes; and that there may he no evidence of the amount of interest .collected, or of the amount of principal used by him, encourage him not to keep accounts, or full and true ones. Which of these principles ought to govern, it cannot he necessary to say. There is no alternative but one of the foregoing. This exception is overruled.

The second exception is, that the master refused to allow a credit for the debts to *Griffis*on two notes. The master states his reason to be. that it was not proved, that they were paid by the administrators, and there is no receipt on them. They are produced by the administrators. But that is not sufficient; as they may have been paid by the intestate. If the case rested there, the report would stand. But there appear with the notes, as exhibits in the suit, two warrants issued on them *in*1808 *against the administrators ;*in which the plaintiff was nonsuited, because the witness did not attend-to prove the notes — from which the plaintiff appealed. It does not appear positively what was done on the appeals; *143but it cannot be doubted, that the defendants settled them. This evidence is conclusive, that the intestate did not pay tne debts, ana the possession of the notes shows, that either he or the administrators paid them. This exception is therefore allowed.

The third exception arises on the *following*state of facts, specially reported by the master: In May 1808, the defendant *Robert Ragland*and *Mram Earner*the administrator confessed two judgments ; the one to *Bran-son*and *Harper*for *£37*18; and the other to *Mram Harper*& *Co.*for £217 *5.*In each of these firms *Harper,*the administrator, was a partner. And the master reports, that he had seen the hooks of those firms *;*in the former of which *Finch*is debited with *£9,9 7*6, and credited November, 1804, by *H. Branson*with 124 17, and on July 2d, 1808, with cash from *J. Sellers,*1214 *%*6, leaving abalánce of 129 18. In the books of *Jl. H.*& *Co.*it appears that *Finch*settled his accounts 28th of August, 1803, and gave his bond for 12141 19 1, and that before his death he had other dealings to the amount of £118 *9*11 — making in the whole £260 1. The books show sundry credits in 1804 and 1805, amounting to £153, which the master deducts from the debits, thereby producing abalance of £109 1, which he supposes the true debt. When the judgments were confessed, *Mr. Harper*drew up the accounts which he swore to and filed in the cause. They are exhibited in this suit. That of *Branson*and *Harper*corresponds in the debits with the books themselves, with the exception of £6 10, for interest, and £2 0 6, money paid after *Finch’s*death. Both credits are however omitted. That of «9. *H.*& *Co.*does not correspond with the books, as to the debits. It omits the note for £141 19 1, altogether. It omits some of the items which composed the sum, for which that note was given, and includes others, not appearing on the books. One charge on 22d August 1803, against *Finch*is *“■ to John Farrar”*£98 1, which was sunk in the £141,19 1. Another charge on the same day after the note is “ *John Farrar”*£ 16 10. The account filed in the action at law gave no credit for any part of the *144*£153 ;*but charges, in addition to what appears on the boohs, the sum of £18, assumed for *Jenks,*and the sum of £8,13 6, assumed for *Carpenter.*Upon this StfitC *Qf*tiie ease,, the master rejected the judgments altogether, and the'defendants except.

It is in itself a eumstance one administra-fess toTnothera judgment for a from the estate ; and no effect will be given to' it as a judgment; but the creditoi*, if alive, must prove the debt. But where such administrator is dead, and many years have elapsed, so that the means of direct proof no longer exist and all the circumstances of the case repel the presumption of fraud, the court will allowweiglit to the judgment as a settlement between the administrators.

The court views with extreme jealousy the dealings of an administrator, for his own benefit, with the intestate’s estate; and in like-manner, the admissions of one ad-jn favor of another. It is a suspicious circumstance. that an attempt was here made to conclude the m after by judgments. They are a nullity in tlicm-selves, and no effect is given to them as judgments, but eoly as evidence of a settlement between the administrators. As such they may stand, except? so far as they appear to be unjust. If *Harper*were now living, be would he held bound to prove, the debt again. The judgment does not admit it, except under circumstances. ¥e cannot say, that an administrator cannot recognize the justice of a demand of his co-administrator; but that an acknowledgment will not be conclusive, nor even dispense with proof, when the situation of the parties is such as to enable them to give proof. There seems to he no reason in the case before ns, to believe, that *Ragland*did, or bad a motive corruptly to admit an unjust demand. He does not seem to have known, or had reason to believe it unjust. Nor doe§ *Harper’s*conduct e.vhibit a fraudulent purpose. He made oath to his demand, and *hc filed the account*of record, that resort might be had to it at a future day by those interested to investigate it. And it appears, that a large part of the debt was due. That is, it appears from entries made in bis-books in *Finch’s*lifetime, when there is no reason to suppose, he had any expectation of administering. The whole demand may possibly have been just; and it might possibly stand in taking the accounts at this rcmo'te day, and long after the death of *Harper..*And clearly, I think, the whole is not to be rejected, because the whole account cannot be supported. But as the books are produced, I think they must govern us, except as to the items added in the account filed, of which entries were never *145made on the'books. These are tlie sums oí *£*IS* for Jenks, and 42 8,13 6. for *Carpenter.*If these be added to the sum of *£*260 1, thesumof *£*287,3-6 will bo made; from which the sum of *£ 153*being deducted, the balance will bo *£*134,3 6, 'with interest thereon to be computed from the dates of the items in the books. For this sum alone. Í think the judgment ought to stand ; and for that, I think it ought; because that sum appears to be justly due. The exception is therefore allowed, so far as respects the sum of *£*134,3 6, principal of the judgment in favor Q? *olbraham Harper*& *Co.*

After the foregoing opinion had been delivered ami a decree *entered*according *thereto, the*plaintiffs’ counsel filed a petition to rehear so much of the decree as allowed commissions to the administrators, and also so much thereof as sustained the defendant’s exception to the master’s report, rejecting entirely the credit claimed for the debts due to *Jlbrahum Harper*& *Co.*ami to */¡runsoa*and' *Harper.*And after argument, RufpiN, Judge, delivered the opinion of the court as follows :

RuppiN, Judge

To the grounds stated in the former decree for the allowance of commissions the court has nothing to add. They then appeared to us sufficient; and they now seem so. The order must therefore stand as to that part of it. The other point raised in the pe-. tition was not free from difficulty when the decree was pronounced, and has been carefully reconsidered now. The result is an increased confidence in tile correctness of the rule adopted.

The argument against it assumes, that the court dispenses with the production by an administrator of bonds alleged by him to have been due from the intestate to himself, or to have been paid off by him in the course of administration. The want of those bonds certainly presented an obstacle to the credit claimed by the defendant. But it is altogether a mistake to suppose that the court acted upon such a principle, or allows such latitude to administrators, as to give them credit without the production of the evidence of tiie debt. It was so *146done in this case ; but it stands upon *very special and peculiar grounds.*

A judgment against an administrator is in general a sufficient voucher for him, without other proof of the debt. But a judgment by an administrator against his co-sdministraíorí being a nullity at law, is not allowed by a court of equity to have the effect of a judgment.

But such judgment is evidence of a settlement between the administrators.— And after the lapse of twenty years and the death of the administrator who was a creditor; the court allowed the administrator credit for the j udgment, without further evidence of the debtv

A judgment in general is a sufficient voucher for the executor, without going further back. Here there was a judgment. But being by one administrator to another, and therefore incapable of being enforced at law, it was held by the coiirt not to be conclusive as a judgment. But we could not say, it was not evidence of a settlement between the administrators, whereby the claims of one of them against the estate were adjusted; nor that such a settlement appearing to be fairly made, should not, after more than twenty years and the death of the administrator who was a creditor, be any evidence of the justice of the demand. Perhaps, under those circumstances, it ought to he taken as plenary evidence, and that if the court erred, the error was in correcting the judgment, or rather settlement by the books of the creditor — as was done. This correction was made for the want of the bonds, and the fear (not that we should do injustice in this case by allowing the whole debt, but) that it might be a precedent drawn to the aid of more fraudulent and more negligent representatives. The court allowed the judgment therefore to stand, as to so much of the debt as was contracted in the intestate’s lifetime and would form debits on the mercantile books, only so far as tlic unexceptionable evidence of the entries, made in those books when there was no temptation or opportunity to commit a fraud by making false ones, sustained them. The reasons for this were, first, that thus far, the debts were proved to be true ones ; second, that there was no ground to impute to the administrator, *Ragland,*the dishonest admission of an unfounded demand; thirdly, that he had reason to believe it just, as well from the production of the evidences of debt, as the oath of his co-administrator ; fourthly, fraud on the part of *Harper*was repelled, as well by the fact of his oath as the exhibition and filing in the suit of an account in detail of the demands, and his affidavitof their justice, so as to give full information to those interested in future to investigate it; fifthly, that the specialties ought to have been filed, and must *147be presumed to have been filed in the clerk’s office with the record of the suit, and the loss of them must be taken to have happened there, and therefore that the defendants, *not being the persons to have the custody of them,*are excused from producing them; sixthly, that the death of *Harper*twenty years ago puts it out of the power of the defendants, however just these debts may have been, to offer further evidence of their justice, which' could be heard by way of proof; and lastly, that those debts are positively stated to be just in the answer of *Henry Bran-son,*who was the surviving partner of those firms, and who is made a defendant in this suit as administrator of *Harper.*

Whenever all these circumstances shall again concur, to prove the probable justice of a credit, to repel the imputation of fraud or imposition, and to excuse the non-production of more direct and higher evidence, I shall he prepared to give to them, in combination, the same force and effect they had in this cause.

Pee Curiam. — PetitioN dismissed.