#### BALIE PEYTON et uxor et al. *vs.*RICHARD J. SMITH, Adm’r of MAURICE SMITH et al.

Executors and Administrators are chargeable with interest onbalances in their hands, whenever those balances have accumulated beyond the exigencies of administration, unless it appears that the fund has been kept *sacred*and *intact*for the *cestuy que trusts,*as their property, ready to be delivered over to them, so that profits could not have been made thereof.

A father cannot appoint a guardian for his children, nor impose on any one the duties and obligations of that office, except “by deed executed ' in his life-time, or by his last will and testament, in writing,” as pre- • scribed by the act of 1762 (1 Rev. Stat. ch. 54-, sec. 1.)

Where it can clearly be collected from the will of a father, that certain persons are thereby appointed to have the custody of the persons and the estate of his children, until they arrive at age, such an appointment will be held to constitute them guardians, as though the appropriate term had been used. But where a term so well known, and of such universal use to describe the office, is not employed by the testa" tor, there ought to be unequivocal indications of a purpose to confer the office before the court will declare it conferred. Hence, a direction by a testator, that the use of his property shall be with his wife, for the support of her and the children, subject to the supervision of his executors, until a division of it can be conveniently made — either in kind or in the form into which the executors may convert it — between the wife and children, will not constitute the executors guardians of the children.

A clause in a will, giving “ full power and authority” to 1 he executors to dispose of any part, or all of the property devised or bequeathed* which they might think best, and from time to time make distribution among the wife and children of the testator, does not enjoin upon the ■executors the duty of putting out the balances in their hands, from .time to time, for the purposes of accumulation, so as to charge them, upon failure to do so, with compound interest.

Generally, the court, upon a bill filed for the settlement of an estate, will 'rely upon the judgment of the master in the allowance of commissions to the executor or administrator; but if it appear that the rate of commissions has been passed upon and fixed by ^he County Court, the Court of Equity will follow that as the safer guide.

A sum paid to the widow of the testator by his executor, as, and in lieu of, the distributive share to which she became entitled by dissenting from the will, is not a disbursement, on the payment whereof, the executor cun claim a commission.

Courts of Equity view with jealousy contracts made by a trustee with his *cestuy que trust,*as, for instance, a purchase by an administrator, of his distributive share, from one of the next of kin. But whether *326the purchase in any particular cáse, ought to stand, is exclusively a matter between the parties to the contract. As to all others, it must be understood as transferring the right which it professes to sell; and the price paid by the purchaser is a matter which concerns none but the parties. If not made for the other next of kin, they can take no benefit from it.

William Smith, formerly of Warren county, departed this life in the month of July, 1818, having first duly executed his last will and testament, whereof he appointed John R. Eaton, Charles Baskerville, William Baskervilie, and his brothers, Alexander Smith and Maurice Smith, executors. The will was duly admitted to probate; and all the other persons nominated as executors having refused the office, at the November term, 1818, of Warren county, Maurice Smith qualified as executor thereto. By the said will, the testator devised and bequeathed as follows:

“ I give aud bequeath unto my daughter, Mary Nuttall, the second and fourth bonds due unto me from Alexander Boyd, sgnior, of Mecklenburg county, Virginia, being ten thousand dollars each, to her and her heirs forever; but, at the same time, she is to be barred from compelling my estate to account to her, at any future day, for any part of the estate of her deceased husband, John Nuttall, until after my other children shall have received in equal degree from my estate. I also bequeath to roy said daughter, Mary, one choice negro girl, my riding chair and harness, and a horse, called Doctor. It is farther my will aud desire, that my daughter, Mary, shall have all the household and kitchen furniture which I bought at the sale of her deceased husband; which said furniture shall not be taken into view in the distribution of my estate, being in consideration of services rendered by her. All the rest and residue of my estate, of every description, to be and remain in the hands of my wife, under the directions of my executors, for the use and benefit of my said wife and family, with full power and authority to my executors to dispose of any part or all of said property, which they, or a majority of them, shall think proper or best for the estate; and, from time to time, make distribution among, or purchase for, my wife and children, as they may *327think best, until they have given to each of bay other children equal to what Mary Nuttall has by this will, (leaving her furniture out of view,) then, if any thing, divide it equally between my said wife and all my children, viz. Charles, Mary, Elizabeth, Samuel, Nancy, John and William,, to them and their heirs forever.”

The wife and children of the testator all survived him. Mary Nuttall afterwards intermarried with John C. Goode, of the State of Virginia, and died, leaving three infant children, Mary J. Nuttall and Agnes and Elizabeth Goode; and administration upon the estate of the said Mary was granted to her husband, the said John C. Goode. Elizabeth, one of the said William’s children, intermarried with one Henry C. Williams, who hath since died. William, another of the said children, died in June, 1827, at a tender age, and Maurice Smith administered on his estate; and Ann, another of the children, intermarried with Balie Peyton. Charles, John and Samuel, the other children of the testator, are yet alive Lethe Smith, the widow of the testator, dissented from the will of her husband in due form of law, and had her dower assigned in his real estate; and having afterwards intermarried with Francis Pugh, the said Francis and herself brought their suit by petition, in the County Court of Warren, against the executor and the legatees of her first husband, lor a distributive share. This suit was carried up by appeal to the Superior Court of Warren; and while there pending, viz. at the October term, 1830, it was compromised, by an arrangement between the petitioners and the executor, for a sum certain, paid by him to the petitioners; the suit was dismissed, and the said petitioners executed a release of all demands to the executor. A bill in equity was also filed by the said Pugh and wife, against the said Maurice Smith, as administrator of William Smith, the younger, to recover the distributive share of his personal estate, to which Lethe Pugh was entitled, as the mother of the said intestate. This equity suit was compromised, at the same time, for a certain sum paid by the said Maurice Smith; and, thereupon, the suit was dismissed, and a release and a conveyance of their interest in said estate executed by the said Pugh and wife unto the said Maurice. *328Xu the month of March, 1827, Charles Smith, for a valuable consideration, made a conveyance to the said Maurice, whereby he professed to convey' all the interest of the said Charles in the personal estate of his father; and in .December, 1827, shortly after the death of his brother, William, sold to the said Maurice, and executed a deed, which purported to convey to the-said Maurice all his, the said Charles’s, interest in the personal and real estate of his said brother, as also his interest in the real estate of his lather, in North Carolina and Virginia.

On the 21st of November-, 1832, this bill was filed. The plaintiffs were, the said Balie Peyton and Ann, his wife, Elizabeth Williams, Charles Smith and John G. Smith; and the defendants were, the said Maurice Smith, Samuel Smith, John C. Goode, Mary J. Nuttall, and Agnes and Elizabeth Goode. The great object of the bill was, to have a full settlement with the defendant, Maurice Smith, as executor of William Smith, the elder, and administrator of William Smith, the younger, in regard to the estates confided to his" care. Jn the bill, many grave charges of mismanagement and breach of trust were distinctly preferred; of which, at present, it is necessary to consider particularly the following: It was charged that, soon after the death of William Smith, the elder, Thomas Hunt was appointed, by the County Court of Warren, guardian to the plaintiffs, Ann, Elizabeth, John and the defendant, Samuel; and gave ample security for the care and improvement of their estates; but the said Maurice, by threats or Other means, caused sa'id Hunt to resign the guardianship; and that, having thus prevented them from having a guardian, who would have been, by law, bound to séciíre their estates, and by lending out the productive part thereof, every year, to cause the same to accumulate until their arrival at age respectively, the said Maurice had subjected himself to'the responsibilities of. a guardian, and was not only bound to account with the said legatees for interest, but for interest annually, to be compounded. It was also charged that the said Maurice, for many years, had had in his hands a very large amount of money, belonging to the estate df his testator; which sums of money lie had been using for *329the purposes ofgain — buying therewith stock in Banks — loaning the same out at interest — buying of notes- — dealing in exchanges and other operations of a like kind. It was also charged that James W. Smith, the brother of the testator, owed the testator,, at his death, two bond debts, one for the sum of £450, Yirginia currency, and the other for an amount unknown to the plaintiffs; and that the defendant, Maurice, had neglected to collect them; that the testator, at his death) was interested, as a co-partner with the said Janies, and Rob. ert Burton., in the purchase of certain tracts of land in Tennessee; and the said Maurice, in settling the said co-partner, ship account, either from facility of character, or from a disposition to oblige the said James, had allowed the said James, who resided in Tennessee, most extravagant charges for personal services reudered in relation to the concerns of the co-partnership — and had, moreover, allotted to Samuel G. Smith, a son of the said James, one-eighth of a 5,000 acre tract of land, in that State, for very inconsiderable services. It was also charged, by the plaintiff, Charles, that the conveyances made by him of his interest in the estate of his father and of his brother, were obtained from him at an undervalue, wheu the said Charles was ignorant of the value of said estates, and in great distress for money — and that the same ought not, and would not, be deemed, by this Court, other than as securities for the moneys he had received thereupon. And it Was further charged that the purchase made by the said Maurice Smith, of the interest of Francis Pugh and Lethe, his wife, in a distributive share of the estate of his testator, and also the purchase of their distributive share in the estate o,f William Smith, the younger, were made in behalf of the persons interested in said estates; and, therefore, ought to enure for their benefit. Upon these and all the charges in the bill, the most searching interrogatories were propounded to the said defendant. The answer of the defendant, Maurice Smith, was put in on the 9th of March, 1833. To it were appended, as exhibits, a copy of an account taken, and of a report made, by the commissioner, in the petition of Pugh and wife, in the County Court of Warren .against the said Maurice and the legatees- of William Sm: duthe elder* *330for the purpose of ascertaining the amount of the personal estate testator then reduced into possession; also, further detailed accounts of his administration subsequently to the Sa^ accom1^ and rePort, which he averred to be full and true. He denied that he ever speculated with the funds of his testator, to make profit for himself; declared that he had charged himself with all the interest he ever received on money or claims of the estate; that he had never used for himself, or loaned, on his own account, any part of said estate; and that he had, at all times, been in possession of all the money of his testator, that was collected and notregularly disbursed, either by having the same at his own house, or about his person, or in deposit with some of the Banks in North Carolina or Virginia, excepting some small sums, at different times in the hands of James W. Smith, which were held by the said James to meet incidental charges upon the estate in Tennessee.

In relation to the charge respecting the agency of the defendant, in causing Thomas Hunt to resign the guardianship of the children of William Smith, he answered, that he believed that Thomas Hunt was appointed guardian to some of them, and that he resigned the guardianship; that having learned that the said Thomas was embarrassed and insolvent, this defendant, in pursuance of advice, yvas about to endeavor to have him removed from office, when the said Thomas resigned; that he did not improperly controul or menace the said Thomas; that he believed the said Thomas resigned, because he apprehended that he would be removed; that the defendant, far from being actuated by the base motives attributed to him, was governed solely by the desire to prevent the estates of his brother’s children from being squandered, and a conviction, strengthened by the advice of eminent counsel, that he owed this interference to them as a duty; and that he was now convinced, that so far as this interference contributed to produce the resignation of the said Thomas, it was eminently beneficial to the plaintiffs; for, shortly thereafter, it became manifest that the said Thomas was utterly insolvent; and it has since been discovered that the bonds given upon his appointment, as guardian, because of technical defects, could not have been enforced at law.— *331He farther said, on this subject, that it was always his desire that his brother’s children should have guardians; that he refused to take upon himself the office of executor, until their maternal uncle, John R. Eaton, consented to act as their guardian; that the said Eaton was appointed accordingly, but shortly afterwards resigned; that Alexander Smith was at one time appointed guardian to the plaintiff Charles, and Thomas Turner to the plaintiff Elizabeth; but both became wearied or dissatisfied in a very short time, and resigned their offices. He further answered, that he knew nothing of the note or bond for £450, Tirginia money, alleged in the bill to have been due to his testator from James W. Smith, excepting from the statements of said James, from which it appears not only that the same is not due, but that the said James is a creditor of his testator’s estate. The defendant filed, as exhibits, copies of the accounts and reports of James W. Smith, in relation to his transactions as agent'of the testator in his lifetime, and as agent of the estate since the death of the testator, and a copy of the settlement made between the defendant and the said James; and averred that he had not allowed thereon any item to the said James which he was not satisfied was just, nor allowed him any compensation for services, which was not, in his judgment, fair and reasonable; stated that, upon the said settlement, a balance was found against the said .lames; the same was thereupon received by him, and passed to the credit óf his testator’s estate. He further said that he understood there was a co-partnership between the testator, Robert Burton, and the said James, in relation to a claim to a tract of five thousand acres of land in Tennessee, of which concern the said James was the manager; and that, for important services rendered to the concern by Samuel G. Smith, there was allotted to the said Samuel an interest to the amount of one-eighth in the claim; that the defendant was convinced that the compensation so allowed was reasonable, but if it were in any respect improper, he was advised that it was an affair in which he had no concern, and for which he was in no way responsible. Tire defendant denied that he took advantage in any way of the ignorance, inexperience, or necessities of the *332plaintiff Charles, in the purchase made of his interest in the estate °f William Smith, the elder; and William Smith, the younger; insisted that these purchases were fair, for full value, anc* a^so'l1tej andj although declaring that it was never his purpose to make any profit.tbereon, did not waive his right to insist on them, in this suit, as absolute conveyances. The defendant admitted distinctly, that the release made by Pugh and wife, on the settlement of the suit by petition, in Warren, was made for the benefit of the estate of his testator, and had always been so regarded by him; but he insisted that the transfer, made to the defendant, of Mrs. Pugh’s interest in the estate of William Smith, the younger, was a' matter wholly between Pugh and wife on the one side, and the defendant on the other; not made for the benefit of the other next of kin of the said William; and, therefore, that it neither enlarged nor diminished their rights, as against the defendant.— Upon the filing of this answer, it appeared that “ the defendant, submitting that the plaintiff, John G. Smith, would be entitled to receive, at least, the sum of $10,000 of the money, which, by his answer, *he hath*admitted to be in his hands, upon auy probable estimate of the estate of his testator, and that he is ready to pay the same into court to, and ' for, the use of said John;” the said defendant was thereupon ordered to pay the same into the office of the Clerk and Master, before the 2nd day of the then next ensuing Granville County Court; and, in regard to the residue of the sums stated in the-answer'to be due'to the estate of William Smith, which, by said answer, the defendant had submitted to pay ibto Court, the plaintiffs not making any motion, it Was, on motion of the said defendant, ordered, that he should have leave, (whenever the parties should all be properly brought before the Court,) to pay the same into the said office, for the benefit of those who might be thereunto entitled. At the same term, leave was given to the plaintiffs to except or reply to the defendant’s answer at the next term. In pursuance of these orders, the said defendant, on the 11th March, 1833, paid the first mentioned sum of $10,000, into office, for the use of the said John; and on the 7th of September, 1833, paid into office, for the benefit of those thereunto enti-*333tied, the sum of $>7,179:13 cts. The defendants, Samuel Smith and Mary J. Nuttall, Agnes Goode and Elizabeth Goode, (the three'latter by their guardian) answered the bill. The former stated that he believed and admitted the several . . . matters charged in the bill to be true, and submitted to join in the account thereby prayed for; and the three latter submitted their rights to the protection of the Court. Publication was made to the absent defendant, John C. Goode, and the bill, as to him, taken *pro confesso.*At the September term, 1833, it was ordered, “ on motion of the counsel for the plaintiffs, and the counsel of all the parties, except the defendant, Maurice Smith, that the moneys paid into the office shall be paid out to the plaintiffs and defendants in such proportions as they shall agree, except the sum of $483:74 cents, stated in the answer to have been received by Maurice Smith, as one third of the rents of Tennessee lands, where-unto Mrs. Pugh was entitled to dower, which sum shall be retained until the further order of the Court.” It was also ordered, on motion of the counsel for the plaintiffs, that it referred to the Master of the Court, to take the accounts involved in the pleadings, and that he have leave to examine the defendant, Maurice'Smith, on interrogatories; the reference to be without prejudice to any of the matters of de-fence set up in the answer of the said Maurice, or of any rights appearing on the pleadings inconsistent with such reference. It did not appear that a formal replication was entered to the answer of the defendant, Maurice Smith; but the ■parties must have understood that the answer was put in issue, not only because of the plaintiff’s failing to except to the answer, under the special terms of the order of March, 1833, but because immense volumes of testimony were taken im-der commissions issued on the application of the plaintiffs and the said defendant, to impeach, on the one hand, or to support, on the other, the averments of the answer. Before the Master concluded the reference, or the parties their proofs, the defendant, Maurice Smith, died; and thereupon the plaintiffs filed their bill of revivor against Richard J. Smith, the administrator of said Maurice, and the cause was duly revived against him. The Master having finally made *334bis report, and the cause being set down for hearing upon P1'00^; the said report, and the exceptions thereto, the same was removed into this Court to be heard accordingly.

The report of the Master set forth, in the first place, an account of the executor with the estate of his testator, for the purpose of ascertaining the nett value of said estate. This account was made upon the principle that the representatives of Mary Goode, formerly Nuttall, and Francis Pugh and wife, were not entitled to receive any thing 'more froth the will of the testator; because, as to the former, the estate would not be sufficient to make the shares oí Mary Nuttall’s brothers and sisters equal to her legacy; and, as to the latter, their interest had been released to the executor, for the benefit of the estate. By that account, it appeared that the executor was charged with assets to the amount of $137,900:42 cts.; and was credited for disbursements and charges of administration in the sum of $53,081:81 ctsc — (exclusive of advances made by him to the several legatees, which were charged in their respective accounts) — and was further credited with 5 per centum commissions on the amount of the assets Teceiv-ed, and a like commission on his disbursements, leaving a balance thereupon due to the estate, if interest be not calculated on either side of the account, of $76,039:37. The commissioner submitted to the Court the question, whether interest ought to be charged in said account; and if the Court should so decide, he shewed that, by calculating interest on both sides of the account, there was a further balance due *the estate,*because of such iuteresf, amounting to $59,440:41 cts. The commissioner stated, also, that these balances were subject to a claim for a credit set up in behalf of Maurice Smith, because of his interest in a certain judgment against the executor of William Killingsworth, which this defendant, the said Smith’s administrator, was, by arrangement between the parties, to shew thereafter. Dividing the amount of the testator’s estate, thus ascertained, among the children of the testator, other than Mary Nuttall, the share of each child amounted to $12,673:32 cts. principal money; and, if interest were to be allowed, as aforesaid, would be increased by the additional sum of $9,908:23| cts. interest. The report *335further found that the share of William Smith, the younger consisted of his one-sixth, as aforesaid, of the estate of father, and a share of certain legacies bequeathed by Charles R. Eaton, amounting together, principal money, to the sum of $13,706:64 5-6 cts.; which, by interest, would be increased the further sum of $9,977:70 cts. — and, crediting the administrator with what he had advanced for the use of his intestate, and his commissions, there would be a balance of $ 11,806:75¿ cts. of principal, and $9,060:85| cts. of interest — divisible between the mother and the brothers and sisters of the intestate — making the share of each $1,687:67 2-7 cts. of principal, and $1,295:40 5-7 cts. of interest. The commissioner then proceeded to state the account of each of the residuary legatees of William Smith, the elder, parties to this suit, in which each legatee was credited with the one-sixth of the nett value of the testator’s estate, and with the one-seventh of the nett value of the estate of Wm. Smith, Jun., and charged with the advances made from time to time, by the executor and administrator; and also stated the account of the representatives of Mary Nuttall, otherwise Mary Goode, as one of the next of kin of the said William Smith, the younger, in which they were credited with the said Mary’s one seventh part of said estate, and charged for advances and payments made. Upon these accounts the report found due to Charles E. Smith a balance of principal of $8,130:36 cts., and of interest $6,084:43 cts. — to Elizabeth Williams, of principal, $287:34 cts., and of interest $2,367:20 cts. — to Samuel W. Smith, of principal, $1,065:65 cts., and of interest, $3,506:98 cts. — to John G. Smith, of principal, $62:37 cts., and of interest, $6,200:66 cts.— that there was due from B. Peyton and wife, because of overpayment of principal, the sum of $456:90 cts. — hut, if interest was to be calculated, this would not only extinguish the said balance, but leave the sum of $3,660:90 cts. due to them; and found a balance due from the representatives of Mary Nuttall, alias Goode, of principal, $303:16 cts., because of overpayment, on account of her distributive share of the estate of William Smith, the younger; which, if interest were calculated, would not only be extinguished, but leave a balance in their favour of $427:55 cts.

*336The commissioner subjoined to the report, that after it was closed, the administrator of Maurice Smith filed a bond of the ■ *7*plaintiffs, Charles E. Smith and James W. Smith, for $d50:50 cts. — a receipt for an attorney’s fee, paid by the intestate, of $5, and vouchers and proofs in relation to the claim therein mentioned, respecting the judgments against Killingsworlh’s executor.

*Badger*and *Devereux*for the plaintiffs.

Maurice Smith’s estate is liable, not only for interest, but for interest to be compounded:

1st, because the "request made by William Smith, on his death-bed, that Maurice Smith should take the guardianship of his children, conferred on him that *office*— Reynolds vs. *Lady Teynham,*9 Modern Rep. 40 — Bro. Par. Cas. 202— *Slorke*vs. (Storke, 3 Peere Wms. *51*— Anonymous, 2 Yes. Sen. 56.

2ndly, because he was constituted guardian by the will. No particular form of words is necessary, to make a testamentary guardian. If the testator require what is necessary in a guardian, he makes one. By the will here, the estate of the children is clearly committed to the executor; and this draws with it the custody of the persons. In the same manner as where the custody of the persons is granted, it carries with it the charge of the estate.

3rd, because, having induced the person appointed guardian' to resign, he thereby became guardian in the view of a Court of Equity. He who undertakes to be guardian — who assumes the duties — who intrudes into the office — must be considered and treated as guardian.

4thly. He is responsible for compound interest, because, as executor, he kept money belonging to his testator’s estate on hand without necessity — he mixed the funds with his own — interposed obstacles to any person’s being appointed guardian, who might call him to account — loaned out testator’s money for his own use, and permitted his testator’s estate to pay interest, when he had funds of the estate on hand. *—Littlehales*vs. Gascoyne, 3 Bro. Ch. Gas. *73-*— Kildare vs. *Hopson,*4 Bro. P. Cas. *550*— Button vs. Sharp, 1 Russ. Hep. *146*— •Turner *vs. Turner,*1 Jac. & Walk. Rep. 39— *337*Piety vs. iSlace,*4 Yes. Jan. *620*— Stackpoole vs. *Stack-poole,*4 Dow. *210*— Arnett vs/ Linney, 1 Dev. Eq. 369. An executor is not to be discharged from the payment of interest because he keeps the money of his testator’s estate on hand, but because he does so to answer the purposes of the estate, and gives notice to those entitled to it, and offers to pay it over.

*W. II. Hay wool*lor the defendant, Maurice Smith’s administrator.

1st. The defendant cannot be considered as guardian, from the death-bed declarations of William Smith, because the case of *Reynolds*vs. *Lady Teyiiham*has no.t been followed, and is against the express, words of our act of 1762. (1 Rev. St. ch. 54, sec. 1.)

2nd. He is not guardian under the will — 3 Bac. Abr. Tit. Guardian Let. A. sec. 3, page 407, decides that a devise of the estate does not carry with it the custody of the persons. It is not pretended that he is expressly constituted guardian by the will. Nothing is said in that about the edur. cation and maintenance of the children; and there is nothing from which an implication can be made; and if there be such.implication, it is in favour of the widow. There is nothing in the will to authorise the executors to loan out the money ■ — only empowers them to make division among the chil7 dren. The will directs the property to remain in the possession of the widow, and cannot mean that the executors are to take charge of it. A direction that the property shall remain in the possession of one of the legatees, and that distribution shall be made among the others, does not authorise the executors to loan out the money. The executors could not be intended to be guardians, because they are directed to distribute from time to time. The whole of the estate was Jo remain with dhe widow; and, consequently, the executors could not be takéh as guardians.

3rd. The proposition, that one assuming to act as guardian is to be taken as such, can apply only to a case of an officious usurper, but cannot extend to an executor or administrator, who advances the sums necessary for the support of the children, as occasion may require. A man’s.saying that *338he was guardian, will not charge him, unless he acted as rsuch. The plaintiffs’ bill complains of him for not acting as guardian, and yet seeks to charge him with interest as guardian.

4th. The case of *Arnett*vs. Linney, 1 Dev. Eq. Rep. 369, does not decide that an executor shall be charged with interest, if the money be kept on hand for distribution; for that is one of the purposes of the estate. If the will direct a distribution at any time, and the money is kept on hand for that purpose, interest cannot be charged against the executor. As to the duty of giving notice to those entitled, he did give notice, by settling his accounts before the Court, in 1821, and at other times. But, it is insisted that he ought to have filed a bill, or had one filed, for the direction of the Court. He could not do that, before the estate was ready for a settlement. The objection that the defendant kept the estate on hand an unreasonable time, is the most serious one that has been taken. The correct rule, in ascertaining balances at any particular period, is, not to ascertain simply what amounts were due on the accounts stopped at a particular time, but what amounts the executor ought to have paid out to the legatees at such time. The result of such an inquiry will be, that the defendant cannot be charged with interest prior to December, 1825; and after that time, he settled with the parties as fast as they were entitled. Indeed, he ought not to be charged until 1830, because, until then, the estate was in no sense prepared for a settlement; and the money was retained for the purpose of closing the estate. On the subject of interest, see *'.Attorney General*vs. *iSolay,*2 Eng. Con. Chan. Cas. 528 —8 Ibid 176.

Gaston, Judge,

after stating the case as above, proceeded as follows: The principal controversy in this case is, whether Maurice Smith ought to be charged, in account, with the estates confided to his management, with interest — and if so, from what time — upon what sums — and whether with simple or compound interest. These questions, are presented by the pleadings — and also arise upon the exceptions — and when they are determined, there will probably be but little difficulty in making a full settlement between the parties. *339Nothing can be clearer, in point of principle, than the eral rule, that a trustee shall not be allowed to retain to himself, profits made upon the use of the property of his *cestvy que trust.*These profits are, in the nature of fruit and increase, and belong, of right, to the owners of the property. It is seldom practicable, however, to ascertain, with precision, when trust funds have been misapplied, the exact gains therewith'made; and, therefore, it has been found necessary to adopt a general rule, which substitutes, as the measure of profits, what the law, or the usage of the country, regards as the ordinary fruit or produce of capital. Where the breach of trust is accompanied with corruption, and there is abundant reason to believe that the general rule is an inad- • equate measure of the wicked gains actually made, the Court may, and *sometimes*does, direct rests in taking the accounts, so as to render the trustee chargeable, in effect, with *1*° ; *1*compound interest. The primary purpose is, to secure to the *cestuy que trust*the profits on the use of their money; and the second, to discourage and prevent the application °f trust funds to the private purposes of the trustee, a practice, ' which, while it endangers the safety of the property, tempts to further faithlessness, and to ultimate dishonesty and ruption. The propriety of these principles is so obvious, that they could not fail to receive the sanction of the Courts of this State. Indeed, there are peculiar reasons here, which have beed supposed to call for a more extended and rigorous application of the rule of accountability for interest, than , , , .... • .... that which prevails with respect to executors and administrators in the country of our ancestors. *There,*the legal, is above the ordinary market rate of interest; *here,*it is *J i n*what is deemed the common value of the use of money, While, therefore, it is usual, in England, to charge trustees, made liable for interest, on trust funds, but four per *centum,*although the statute rate of interest be five, here, when , ° , , , . , -, . , rest has been charged at all, it was never charged at less than six per *centum,*allowed by law on loans of money. With us, too, there has always been such a constant demand for money, so many temptations to adventure on schemes of profit, and such a habit of rapid investments, that the *340sumption against its remaining idle, even in the hands of or administrators, was deemed not an unreasonable one. Moreover, as the law here allowed compensation to trustees of this description, by commissions, there was not , , ,. ,. r . , . , same fear of discouraging persons from accepting these offices, by a severe accountability, as is natural where their services are to be performed gratuitously. Certainly, there ’ ^ has been the established usage to charge interest on balances in the hands of executors and administrators, whenever these have accumulated beyond the exigen-^ministration, unless it appears that the fund had *been kept sacred*and *intact*for the *cestvy que trusts*as *their*-property, ready to be delivered over to them, so that profits not have been made thereof.

*339a trustee allowed to -fits made use oi the ¡¡S's°1^',tJ„/of *we trusts.*these pro fits are in ot^ti-uJ^and increase & belong of right to the UiTpropet-lióm practi" cable, howe ■'Vd* to ftS** certain with J“,|ds *>»ve plied, theP therewith0* [herefored ,:t lias been found necessaryio Ü'1¿jjj1 sub_ stitutes as the measure whát’the ¡,a"g°„r’j;e re-gardsasthe ordinary . breach of with corrup *340-tion, _ and soneto* be-rule’s an measuiUe rf tie"co'16! may, and ingtVe'ao-counts so the trusiee wiuiecom.e pound

this case, the mass of the testator’s personal estate con-assisted 0f ten bonds, each for the sum of 110,000, payable in ten successive years, by Alexander Boyd and others, or Mecklenburg, in Virginia; all of which bonds, it appears, collected by suit, and some of them after much delay. Upon examining the accounts, taken by the Master, it appears, that after deducting a reasonable rate of commissions, for the services of the executor, there was no considerable balance of money in his hands, beyond what might be reasonably necessary to meet the charges of administration, and pay unsatisfied demands against the estate, until the year 1824; when, by reason of upwards of $23,000, then received from the Boyd debts, besides other considerable collections, there remained in his hands, at the end of that year, upwards of $20,000, which balance never grew less, but, on the contrary, went on increassing. Upon the balance, at the end of this year, the Court thinks that the executor ought to be charged with interest, unless he has exonerated himself therefrom, by reason of the special matters set up in his answer. A.s we understand that answer, it alleges that he was unable to settle with the legatees, because they were then under age, and without guardians; that he did not deem himself jus tided in lending out the money for them, or othewise investing it for their benefit; and that therefore he *kept*it, making no profit thereof. The language of the answer, in re- *341’ gard to the keeping of the money, is, “that he hath, at all times, been *in possession*of all the money of his testator, that was collected and not disbursed, *either*by having the same at his own house— *or*about his *person*— or in some of the banks in North Carolina or Virginia.” This statement, is obviously so vague, that, with all its appearance of specification, it amounts to little else, than that he had the money *someiohere,*and affords to those interested, very slender opportunity of ascertaining *where*— and still less *how.*it was kept. An attempt was made to obtain specific information on this subject, by interrogatories, administered to the exec-cutor through the Master; but all thus acquired, amounted to no more than this: that the *only banks*in which *he*had made deposites were the State Bank of North Carolina, the Farmers’ Bank of Virginia, and the United States Branch Bank at Richmond; and that a statement of his *entire*ac • count, with each of those institutions, was contained in certain copies of the bank books exhibited ro the Master. These accounts from the bank books, are accounts current between Maurice Smith, (individually,) and the banks, and make no discrimination between the deposites, as having been made otherwise than to the general credit of the depositor. The executor has not undertaken to specify which, if any of them, were an account of the moneys of his testator. Úp-on the answer and the examination, it must be held, fore, that while the executor claims to be relieved from interest, because of his having kept the fund for his’besiM?/ ; *1 •' 1 trusts-*without having derived profit therefrom, he refuses to disclose where, or how, it was kept for them. It is impossible, we think, to account for the withholding of these sonable explanations, on the part of a trustee, from his 1 * . *que*trusts, in regard to the custody and management of their money, for many years, upon any principle consistent with the fact that it has been actually aud *bona fide*kept *J j*sively for their benefit. •

with tor many years, a rea ¡jianntíonin manage -ment ol their mon-be’taUn'° m tactually & *buna fide*kept ii for t'^er bene-fat‘

We must suppose, unless we attribute to the defendant, both in his answer and upon his examination, a deliberate purpose of equivocation, that some, at least, of the moneys appearing to his credit, upon these accounts. were those *342the estate of his testator. They are not *all*such, for the account exhibits, as he alleges, *his*entire dealings with the banks; some of which, therefore, must be understood to have keen his individual dealings. From these accounts, then, it is to be collected, that the trust .funds went into the mass of the executor’s property, and by no visible marks or signs were, in any respect, distinguished from his private moneys. They swelled the executor’s personal credit at bank — upon ¿!eath, they became assets in the hands of his personal representatives, and could not have been claimed as the as- , sets of the testator, by a representative oí that estate — they were liable to his creditors — were, in all respects, his proper-t„ charging himself with the amount thereof, in account with his *cesluy que trusts.*It is impossible, upon this state of facts, to hold that the executor *did not use*the funds of the estate. He has declared, indeed, that he did not “ use them for himself, or loan them on his own account, or spec- ' *A*u]ate therewith to make profits lor himself;”' and we 'cannot declare his answer false, unless compelled to do so, by clear P1'00^- But it is manifest, if credit be given to the answer, that the defendant, in denying all personal use of the trust funds, made the denial in a different sense from that in which we should have understood it, but for the explanations other- *»*1 wise afforded,

íor^ace”" the trust funds ol his individual bank along* wiih ids -not be said used those cause keT thereby increases Ins personal bank-upon the funds' became as-hands’nt'fiis personal representative, and cannot be claimed as vesmtnrf by* representa live or that estate--1‘hey are liable are, in all his proper-cLr.fecWe8' with ihe amount there -of, in ac-h?s’cea/7iyl’ *que ousts.*

This discovery may properly create doubts whether the denial that these funds had been loaned on his account, or employed in speculation, to make profits for himself, is to be taken in the sense which it would seem to import. And . . _ . . . t . these doubts increase, upon further examination into the de-of the bank accounts. That with the Farmers’ Bank of Virginia contains but one credit for a deposite of cash, on the 19th of April, 1830, of $1,000; and this was drawn out on two checks of $500 each, one in favor of Webb, on the 27th 0f the ensuing month, and the other in favour of himself, on ^ ' . the 25th of February, 1831. If this deposite were of the mo-néy of the estate, (and if it were not, *this*account could ^ave been presented but for the purpose of deception,) why is the money thus withdrawn from its place of security — and withdrawn in two sums, at distinct times? It must have *343been for some purpose connected either with the necessities of the estate, or with the private concerns of the depositor» We have examined the account as returned by the executor-as made out by the commissioner — and no application of eh ther of those sums at, or about either oí the times, to the purposes of the estate, appears. The account with the United States Branch Bank, at Richmond, contains three deposites^ two of $1,000 each, made on- the same day, the 24th of April, 1829, the whole amount whereof, $2,000, was withdrawn by “ draft,” on the 24th April, 1830; and one of $1,000, made on the 25th February, 1831, of which $500 was checked for on the 29th of August, 1833; and the remaining $500 yet remains standing to the credit of the depositor. If any of the money, thus deposited, were funds of the estate, the same inference arises, from the manner in which they were withdrawn, of their actual application to the private necessities or business of the executor. The account with the State Bank of North Carolina furnishes, as far as can be understood, evidence not more favourable to the positions taken here in behalf of the executor. It exhibits a deposite of $4,000, made by him, in May, 1822, and withdrawn in the succeeding year, by checks in favour of Willis Lewis, A. Paschall and T¡ Booth; and it is shewn that, with regard to two of these, Lewis and Booth, they got those sums on a personal loan from the executor. On the 6th and 7th of October, 1824, he made deposites of $4,000 and of $2,200. Upon these he checked in' favour of himself, on the 4th of October, 1825, for $2,000 — > and of R. Dickins *& Go.',*for $1,000. It is impossible to infer, from the accounts of the estate, that either of the sums thus checked for, was applied to the uses of the estate — and in May, 1826, he checked for the balance of $3,200, in fa-vour of Doctor Hunt and David Mitchell, to whom he lent the money as his own. If these, or any' of these, deposites were of the trust funds; then the trust funds were, to *every*intent, employed in his private business. One other deposite alone remains, of $3,000, which was made on the 14th of May, 1832, and drawn out on the 31st of August, 1833, by a check in favour of himself; and, probably, for the purpose of being paid in, at the then approaching September term, on ac-*344of the parties in this suit. Now, if this last deposite be oréiy one over made of trust funds in the banks, then these conclusions are forced upon us: First, there has been a most disingenuous mystification, in respect to the place of custody of these funds, by representing that they were kept either, at home, or about his person, or in some of the Banks of North Carolina or Virginia. An equivocation of this kind ought to deprive the answer of all moral weight. We are not casuists enough to decide whether such an equivocation has *all*the guilt of falsehood; but it is decisive to shew, that he who uses it cannot be relied on as a guide to truth. Another conclusion, resulting from this view, is, that the executor deemed it prudent to deposite his own.moneys, for safekeeping, in those public institutions, established for that pur-, pose — but kept the funds of others, committed to his care5 where, no one knows, and where, he will not disclose, when called on to account for them. And, when it is remembered that he had been, before this charge was confided to him, actively employed in making loans, buying up notes and other profitable money operations — and that these were continued with undiminished activity during the entire period when these trust funds were in his hands — there is no rational ground left for doubt; and we are bound to declare that they were used *indirectly.,*at least, for his personal emolument. But, on the other hand, if this last deposite in the State Bank was not the only one made of the funds of the estate — we shall be obliged, by these proofs, to pronounce, what certainly the parol evidence *tends*to shew, that the funds were used, in his private business, *directly*for the sake of profit therefrom. It is not necessary to decide between these two declarations. Charity should induce us to hope that the deceased may have thought, that while he kept on hand, at his command, an amount of money equal to what he supposed might be found due from him, on a settlement, he could say that he had not used *the funds of the estate*for profit. If it were so, it is a melancholy instance of the facility with which the love of gain leads an erring man into the strangest delusions. We pursue this unpleasant inquiry no farther; but direct that interest be charged from the close of the year *3451824, on the balance then due from the executor to the tate of his testator; and that, thenceforth, it be regularly charged and credited on the subsequent items in the account.

. An execu-'«'hois wUh8Tnt«-®sta^ *be*charged *^*oí"tls receipts, whether they be' of Kterelt?r

The estate of William Smith, the younger, consists, almost exclusively, oí *his*share in the estate oí Wm. Smith, the elder. It owed no debts — and interest is to be charged thereon from the date of the receipts.

o0n the part of the plaintiffs, it has been insisted, that there should be annual rests made in the account, so as to charge 3 o the executor, in effect, with compound interest. It will seen that, to some extent, the persons interested will, without giving the direction for rests, get the benefit of compound terest; because, the interest with which the Court directs the executor to be charged, will be calculated *on his receipts,*whether they be of principal or interest, for his *cestuy que trusts.*

The claim thus advanced by the plaintiffs, is rested on several grounds. In the first place, it is insisted, that according to the declarations of Maurice Smith, that his dying brother had charged him with the special care of the deceas-eds’ children, the said Maurice became their guardian, and ought to be held accountable as such. This ground cannot be maintained. The power of a father to appoint a guardian to his children can be exercised only in the mode prescribed by law — and that is express “ that it shall be by deed, executed in his life-time, or by his last will and testament, in writing.” Act 1762, Rév. ch. 69, sec. 2, (1 Rev. Stat. ch. 54, sec. 1.) It is then insisted that,-in and by the clause where the testator disposes of the residue of his estate among his wife and children, other than Mrs. Nuttall, he constitutes his executors guardians to these children, by imposing upon them the duties of guardians. The Court admits that when it can be clearly collected from the will of a father, that certain persons are thereby appointed to have the custody of the persons, and of the estates of his children, until they arrive at age, such an appointment will be held to constitute them guardians, as though the appropriate term had been used. But, where a term so well known, and of such universal use to describe the office, is not employed by the testator, there *346ought to be unequivocal indications of a purpose to confer the office, before the Court will declare it conferred. In the . . . clause in question there are no indications warranting such. a conclusion. Certainty, the clause itself is not very perspicuous; but, according to our construction, it directs that the use of his property shall be with his wife, for the support of her and the children, subject to the supervision of his executors, until a division of it can be conveniently made — either in kind or in the form into which the executors may convert it — between the wife and the children. This division necessarily means an equal division — and this division, between the wife and *these*children, is to be repeated, from time to time, until, *their*shares respectively shall be made equal to the special provision made for Mary Nuttall — after which, should there be a residue, the division — equal, of course — is to proceed between the wife and *all*of the testator’s children. If the supervision, which the testator directs to be exercised by his executors, constituted them guardians, they were appointed such, not only to his children, but his wife.

in winch made be-ilm use of his children the appoint-, i*uardian for ce children to cause such sign o° lb¡ i'hrfraviu' lent purpose ing íiísjdíe iejn-Sied *347to an ac-ihemanage-the thereof in heid'b/tiie to the mens-“óuntaliiity permit,

*346But, it is further contended that he ought to be thus charged, because he caused the guardian of his infant *cestuy que trusts*to be removed; and thereby getting the unlimited con-troul not only over the property of his testator, but over the persons of the testator’s children, he exercised the powers of and must be held to the responsibilities of a guardian. If the case were established that, after the appointment of Thomas Hunt, as guardian, the executor, for tbe fraudulent purpose ofpreventing his beingcal led to an account for the management of the estate, and of keeping the moneys thereof in his own hands, caused the said guardian to be removed, or to resign his office, we might feel ourelves justi-ge¿¡ ju exacting from him the most rigorous measure of ac- ° which the law will permit. But this case, we are decidedly of opinion, has not been made out: nor any thing shewn in relation to that transaction, for which the executor merits censure. It appears from the records, that at February Court, 1819, John R. Eaton, who had been nom-mated by the testator as an executor, but declined the appointment, the -maternal uncle of the children was appointed their *347guardian; and so far from its appearing that this was done in opposition to the wishes of Maurice Smith, he declares in his answer, and if the declaration were untrue, it might have been contradicted, that *he*refused to qualify as executor, until Mr. Eaton promised to take the guardianship. this allegation derives some support from the fact that Smith’s qualification as executor, did not take place until the November Term, 1818, although the will was proved at the ding August Term. It also appears that in November, 1819, Alexander Smith, the brother ofthe testator, became guardian to Charles, one of the plaintiffs, and remained guardian til February, 1824. Besides, it does appear that although Thomas Hunt, when he received the appointment, was in good credit, and generally deemed solvent, a very short justified the apprehensions of Maurice Smith, in regard to his embarrassments, and proved that, 6n this subject, *he*had that more minute information, and keen sighted sagacity, which are ordinarily found in pursuing habitually the business of lending money and buying in notes, besides, when Thomas Hunt resigned the guardianship, there was no money of the testator in hand — and no -immediate temptation to make Maurice Smith desire that the children should be without guardians. And, upon the proofs, it does not appear, that after the resignation of Thomas Hunt, he executed any of the duties of the guardian, except -those necessarily devolved on an executor -for infant *cestuy que trusts,*of furnishing the means for their support and education. It is lastly contended, upon this point, that these rests ought to be directed, because, by the will, the executor was expressly charged, with the duty of putting out the balances in his hands, from time to time, at interest, for the puposes of accumulation; and that his gross breach of duty, in utterly disregarding this injunction, deserves such severe visitation. "We are saved the necessity of ascertaining what ought to be the rule of interest in the case supposed-^-in the performance of which duty, there would be a difficulty in reconciling decisions that apparently clash with each other — because we do not find any such injunction in this will. The only power given to the executors, is-that of converting the property *348for the purpose of a division, and the testator seems to have contemplated such a division, whenever the administration oí his estate could be conveniently closed. '

If the maser allow í-executor's111 tratorTM11ac-count, with-erstherefor, suíie the ev-ídence up-the allow-ntico is made, the i-upon an éx-kuntothem" he again re-ferredtoihe master, that *vfsethem%*groumís l'o* ins allow-tiie^onitR dde upon ness°nf Ehis judgment.

^aTC ^us deposed of the main subject of dispute in this cause, and of the matters embraced within the 1st and 2nd of the exceptions taken by the plaintiffs, and within the 5th, 7th and 8th of the exceptions of the defendant. The report must necessarily be re-committed, in order that the accounts may be made out in conformity with-the principles thus declared.

The 3rd exception of the plaintiffs is, for that the Master credited the said Maurice with sundry small items for expenses, amounting together, to the large sum of $1,110:89 ceuts, without vouchers therefor, and without proof that the expensed so alleged were actually incurred, or, if incurred, for the benefit of the estate of his testator. According to the practice which has heretofore prevailed in this Court, and which must continue until one more suited to the con-venience 0f suitors can be established, this exception must s0 far be allowed as to direct the Master to revise this item; * and in his report thereupon to set forth the grounds of his allowance, so that the Court may he enabled to decide, if made subject of an exception, upon the correctness of his judgment,

The 4th of the plaintiff’s exceptions, ana the 6th ana 10th of the defendant’s exceptions, relate to the *quantum*of commississions allowed to the executor; to the subject matter of commissions, and the mode of its computation. It is so difficult for this Court to ascertain, by any means in its w^at reasonable rate of commissions called for in any case, by the nature of the services, labour, and responsibility of the trustee, that it is much disposed, in gen-erai; t0 rejy) jn this respect, on the judgment of the Master. In this case, however, the Court perceives a safer guide for the exercise of its discretion, and will follow that guide. It appears that, on one occasion, when the accounts of the executor were audited in the County Court of Warren, and when the auditors recommended that there should be allowed to the executor a commission of 5 *per centum*on his re *349ceipts, and 5 *per centum*on his disbursements, the Court, nevertheless, ordered that his commission should be limited' to 4 *per cent,*on each. The Court, therefore, overrules the allowance of 5 per cent, as made by the Master, and sanctions the rate established by the County Court. It is made a question by the 10th of defendant’s exceptions, whether the mouey paid to the widow of the testator as, and in lieu of, the distributive share to which she became entitled, by reason of her dissent from the will, is a *disbursement,*on the payment whereof, the executor can claim a commission. The Court holds, very clearly, that it is not. Here the payment was not made on an adjudication — but as on a purchase of the widow’s right. But if it had been made on an adjudica-. , - *... . , • ■,*tion, or in any other form; still the claim was in the nature of a distributive share, and comes within the reason of decisions which forbid commissions on the payment of . ... *1 J*° acies and distributive shares. *Potter*v. Stone, *2*Hawks 30. *Clarke*v. Blount, 2 Dev’xs Eq. Rep’ts 51. The Court is also called upon, by the other of defendant’s exceptions above stated, to correct an alleged error of the Master in the of computing the commissions. As the account itself is be taken on a new priciple, with respect to the calculation of interest, the object of this exception will be best attained directing the Master, after ascertaining the amount of the ceipts, as swollen, by the addition of the interest thereon, and of the amount of the disbursements, as so increased, make the allowance of commissions on the aggregate.

An executor ¡senu-interest accrued on his receipts hn?sements, same, látéd o'i°ihe theimer thereon.

one tenant ln C0,n!I1p" with»” expends in relation to Suae,mmon.

The 5th and 6th exceptions of the plaintiffs are either disproved or unsupported by proof; and the small matter embraced in the 7th exception, is left, by the exceptants, so.completely in doubt, that those exceptions are over-ruled.

The 8th, the 11th, 14th, 15th and 16th exceptions of the plaintiffs were abandoned, in the argument, as untenable.

The 9th exception must be over-ruled. The Court discover no reason why a tenant in common of land has a right to charge his co-tenant with a just proportion ses incurred in relation to the common estate; and, upon the proofs, sees no room to doubt that the pa3nnents made to James W. Smith therefor, were, in all respects, proper.

*350The 10th exception- must also be overruled. Upon the an- and the testimony of James W. Smith, which furnish evidence in relation thereto, it appears that the sum, for not collecting which, it is sought to charge the executor of William Smith, was not, in fact, due to the said William.

The 12th and 13th of the exceptions of the plaintiffs will be considered together. Maurice Smith, who was the administrator of William Smith, the younger, purchased, at a certain sum, and while a suit was pending therefor, the interest of his intestate’s mother in and to a distributive share of the estate; and, it is alleged, by the other next of kin, that he paid too little therefor, and that the profit made on the purchase should result to them; and-, if not, then, that the estate is not.chargeable with any part of the costs which had been incurred in the litigation. Courts view with jealousy such contracts made by a trustee with his *cestuy que trust.*Whether the purchase, in this case, ought to stand or not, is exclusively a matter between the parties to that contract. As to all others, it must be understood as transferring the right which it professes to sell; and the price paid bv the purchaser is a matter which concerns none but the parties. The purchase is not shewn to have been made for the other next of kin; and the allegation that it was so made, has been peremptorily denied. The representatives of Mrs. Pugh are not before the Court. We see no ground on which to overrule the judgment of the Master, on the main matter of these exceptions. But it is equally clear that it was an error to allow the executor for the costs paid by him, in resisting *this*claim of Mrs. Pugh. To the extent of these, the account must be corrected.

The matters disclosed in the affidavit of Samuel W. Smith, connected with the fact that the payment in question does not appear to have been claimed by M. Smith, in the account rendered by himself, render it so questionable whether an error was not committed by the Master, in charging the said Samuel with the sum of $1,500, as paid on the 25th of December, 1827, that the Court sustains the 17th and last exceptions of the plaintiffs, so as to direct the Master to revise his report in relation thereto.

The Court also sustains the 1st exception, on the part of *351the defendant, so far as to require of the Master to review his report in relation to the payments claimed by said exception to have been paid to Charles Smith. The conveyance of the shares of the said Charles, in the estates of his father and' brother, is regarded by the Court but as a security for the sums actually paid to him; and the Master will ascertain fully all that has been received by him on the account thereof.

against ¡J® court °* act upon ^“ount *o°L S'maUy.*They must fie referred to the Master,

The Court is,of opinion that the 2nd exception of the defendant is irrelevant. The representatives of Mrs. Pugh are not before the Court; and the Court does not understand that the report finds the late Maurice Smith liable to any person, because of her share in the estate of William Smith, the younger. The value thereof is set forth, partly for the purposes of elucidation, and partly that the Court might be enabled to decree in relation thereto, if it held that the profits on the purchase of that share accrued to the other next of kin of the said William. But the report does not *charge*the said Maurice, in account with any of the parties to this suit, therewith.

The matter of the 4th exception, the claim of the late Maurice Smith, on account of his share in the debt, has not been passed on by the Master, and it is against the usage of this Court to act upon matters of account *ginally.*The subject matter of this exception is, therefore, re-committed to the Master.

The 9th exception of the defendant is overruled. It *• pears, that on the 9th of June, 1830, Maurice Smith made a large payment to Samuel Smith, in cash, and, at the time, bound himself by bond to make a further payment of $2,000; that this bond was not taken up until some time af-terwards, when it amounted, with interest, to the sum of $2,165. The Master having credited the whole account of M. Smith with cash, and the principal of the bond as a payment of the 9th of June, 1830, it is clear that the defendant is not entitled to credit for the interest which Maurice Smith paid for the use of the $2,000.

The matter contained in the 11th of defendant’s exceptions is not properly brought before the Court, by way of exception. If material, the proper time to urge it will be, when a *352decree is prayed for by the plaintiffs. In the mean time, as the matter will be necessarily before the Master, upon the re-commitment of his report, any of the parties, who deem the enquiry suggested a proper and necessary one, may direct the attentjon 0f t|-le ]\iaster thereto — and have a more specific report concerning the matter thereof.

. a o"thc Vents whloha -ow ¡a enti-tied to dower, in equi-]ferCorSher t¡ve *senta"

Our attention was called, during the argument, to the sum of $483:74 cents, mentioned in the order of September term, 1833, to have been retained out of the moneys paid into office, subject to the further order of the Court. Thecounsel the legatees has prayed of us that this money may be decreed to be paid unto them. This prayer is not granted. The , r . r *J °*. money is stated to be the one third of the rents, which had been received by Maurice Smith, of Tennessee lands, where-unto w^e 0 ^ate Smith was entitled to dower — and if so, as an accessory, it ought, in equity, to follow its principal. The money, upon this representation, belongs to the representatives of Mrs. Pugh, and they are not before us.

The decretal 'order will be drawn in conformity to the principles laid down, and the matters declared, in this opinion.

Pbr Curiam. Order accordingly.