#### SAMUEL RALSTON, Adm’r of SAMUEL RALSTON Jun’r vs. HUGH TELFAIR et al.

Although it be admitted, that by actions of trover, assumpsit oraccount, an administrator, after the recall of the probate of a supposed will, might have remedy at law against one who acted as executor under it, yet equity has jurisdiction to decree an account in such case, as being a more complete remedy, and that particularly, where a part of the plaintiff’s demand is of sucha nature that there is no jurisdiction at law; and in such suit in equity, the defendant will be treated as an executor or trustee, and made chargeable with what came to his hands of the trust fund — and also with such part thereof as he may have released or disposed of for purposes of his own; and he must make good what may have been lost by his bad faith, or gross neglect; and he will be entitled to be credited with all sums paid in discharge of debts owing by the deceased; and for all payments of legacies under the supposed will, made before he had a reasonable ground of belief that the paper was not a will, as it purported to be; and he will also he entitled to a fair compensation for his services done to the estate in the administration of it.

If one, acting as executor under a supposed will in which he was interested beneficially as a residuary legatee, make an agreement with, the surviving partner of his testator in relation to the partnership concern by which he surrenders to him a part of the effects of the concern, he will he resposible therefor, if the same be not for the advantage of the estate, to the,administrator of the deceased, upon the recall of the probate of said will, although the administrator may have a remedy against such surviving partner.

An executor, acting under a supposed will in which slaves were directed to be emancipated, is not to be charged with the hires of such slaves, when they have been allowed to work for themselves, and the executor has made no profit from them.

The costs incurred by the defendants in a suit in equity, brought by a party claiming under a supposed will against the executors who claim*415ed for themselves adversely to the plaintiffs under the same will, cannot be allowed the defendants, in a suit against them for an account, brought by the administrator of the deceased, after the recall of probate of the said will. Nor can the cost of resisting the proceedings to recall the first probate and attempting to obtain a second, be so allowed; for although an executor, acting entirely or mainly for the benefit of other persons provided for in a supposed will, ought to be protected from loss by a faithful, or what was properly deemed a faithful, effort to carry into effect the apparent will, yet wheie the executor is solely, or almost solely interested under the will, he is to be taken as acting for himself, and if he fail, must pay the costs of the litigation.

It is not a fit matter of exception to a report, that one of the two commissioners who united in, and signed, it,afterwards altered it without the privity of the other. If the objection be true, in point of fact, the party should verify it on affidavit, and apply to have the whole report set aside, or restored to its first form.

Samuel Ralston, died in Pitt county, on the 11th day of February, 1829, and at the succeeding May Term of the County Court, the defendants, Telfair and Blount, offered for probate a paper writing, dated the 7th of February, 1829, purporting to be the will of Ralston, whereof they were the executors; and they procured the probate thereof, and letters testamentary, to be issued to them jointly. By that instrument, Ralston directed four of his slaves to be emancipated; and that another named Abram, should be sold to discharge a note then outstanding, which was given for the price of the said slave; and gave a legacy of $1,000 to Franklin Gor-ham. He also directed that Churchill Perkins should collect the debts due to him, and pay those he owed, and then “ pay the remainder to the executors, to be disposed of as they may think fit;” and he then added, that *“*all the remainder of my property shall be disposed of as my executors think proper.” Samuel Ralston, the supposed testator, was a native of Ireland, and his next of kin was his father, Samuel Raison, then resident in Ireland. He had no notice of the death of his son, of of the existence of the paper, until some months after probate had thereof; and upon hearing of the same, he filed his bill, in the Court of Equity, against the said Telfair and Blount, insisting, that by the true construction of the instrument, the executors received and held *416the personal estate in trust for him as next of kin, and not' ^01’ Personal benefit of the executors themselves. To that bill the defendants put in answers, in which they insist-e<^ we*’e ^ legatees in the said paper for their own benefit, and not in trust for the father. Upon' the hearing of that cause, the bill was dismissed by the Court. Immediately thereafter, Samuel Ralston, the father, instituted a suit in the County Court, for the purpose of having the probate of the supposed will recalled; and it was finally so ordered in this court. Telfair and Blount then again offered the paper for probate, and a *caveat*was entered against it by Samuel Ralston, the father, and an issue made up thereon; and after a verdict, the paper was finally pronounced against; and the party deceased, declared to have died intestate. Administration was then taken by the present plaintiff, who received from Telfair and Blount, or took into his possession the slaves left by the intestate, and then filed this bill against the said persons, praying an account of the estate, all of which, as the bill alleged, came to their hands, and to a large amount; and that they might be decreed to pay to the plaintiff what might be found to be justly due to him, upon the taking of the proper accounts. The answers of the defendants, positively stated their full belief, at the time they procured the probate of the paper and acted under it, and resisted the recalling of the probate, that the same was the will of Samuel Ralston; and insisted that they acted honestly, and with a sincere desire to execute the will of their supposed testator, in defending all the before mentioned suits, and in administering the estate according to the provisions of the said supposed will; and they claimed to deduct out of the estate in their hands, or that came to their hands, such sums as they paid in discharge of the debts of the deceased, legacies given in the said instrument, and all costs and expenses to which they were put in defending those suits; and also that they were entitled to the usual and proper charges for collecting and settling the estate.

At the death of Samuel Ralston, he and Churchill Perkins, who was mentioned in the supposed will, were in co-partnership in a store in Pitt. Perkins entered a *caveat*against the *417probate of the will; and it was thereupon agreed by Telfair and Blount of the one part, and Perkins of the other, that Perkins should withdraw his caveat, should give up the privilege and compensation for collecting the debts due to Ralston, arid deliver over the bonds and other evidences of those debts; and also should give- up to Telfair and Blount the debts due to Ralston and Perkins, and surrender the books of accounts of those latter debts; and that therefor, and for the sum of $1,000, which Ralston owed Perkins, and for the interest of Perkins in the profits and effects of the firm of Rals-ton and Perkins, he, Perkins, should retain specific articles of merchandize, and certain bonds due to Ralston, to the value of more than §3,000; which was done according to the several stipulations. ■ ■

To speed the cause, the parties consented to a reference to commissioners to take the accounts, but without prejudice to any objection on the part of the defendants to their liability in this suit. A report was made, to which each party took numerous exceptions; and by the agreement of the counsel, the cause was brought on to be heard, and at the same time, if the bill should be sustained, to be decided on the report and exceptions.

*J H. Bryan and The Attorney General*for the plaintiff.

*Badger and Iredell*for the defendants.

Ruffin, Chief Justice,

having stated the case as above, proceeded as follows: The jurisdiction of the Court of Equity in this case cannot, we think, be seriously questioned. Admitting that by actions of trover, assumpsit, or account, the administrator might have remedy at law against one who acted as exécutor under a will of which the probate has been recalled, because it was not a will, yet there must also be a jurisdiction here. The remedy in Equity is more complete in matters of account, which is the ground of the equitable cognizance of such cases. The Court of Equity has peculiar facilities of investigating accounts, to which, when long and complicated, a jury is altogether incompetent. But, it is said for the defendants, that here there is no complication and no mutual account, because the plaintiff has no accounts *418against the defendants. But the argumentis not ingenuous. P^UitifT and defendants may not literally have accounts with each other; but the claim of the plaintiff against the defendants involves the administration, for about eight years, of a considerable estate; and that may be said necessarily to include numerous charges and discharges, and to constitute a case and matter of account fit to be settled in this Court. It stands much on the footing of a suit by tian administrator *de bonis non*against the executor of a first administrator; in which, although trover or detinue might lie for the specific things, and assumpsit for money collected, it is the constant course to proceed in equity. If, in such a case, the plaintiff were to proceed by actions at law, and injustice were done therein to the other party, for want of just allowances for disbursements or charges, it would seem impossible that a Court of Equity would allow the plaintiff at law to raise the money from the other party, until the accounts had been taken here and all proper credits ascertained. It is for the advantage of the defendants themselves, that this jurisdiction should be exercised in the first instance. We think, therefore, if there were nothing peculiar in this case, the bill would be proper.

But here, a part of the plaintiff’s demand is of a nature of which there is no jurisdiction at law; that is the sums collected by the defendants on the debts of Ralston and Perkins, and the value of the effects released or assigned by them to Perkins. In those effects the legal interest vested in the surviving partner, and the administrator oí the deceased partner can only claim in equity. If it be said, the plaintiff must go against Perkins for that demand, the answer is, that he has a right to follow the fund in the hands that-hold it, and that he may treat the defendants as his agents in the transaction; and for that reason he may call them before this Court, for that equitable demand.

Upon either ground, we think the jurisdiction proper; and especially upon the pleadings as framed in this cause. The bill does not charge the defendants with procuring the will by improper means, or endeavouring to obtain the probate, or uphold it by fraud or falsehood; but alleges only, that in fact it was not the will of the deceased, and that the defendants *419were induced to resist all the claims of the next of kin sole-]y for their own personal advantage, as supposed legatees-in the paper. That conduct is consistent with honesty of purpose. Hence, the defendants are not treated as wilful wrongdoers, or called on to answer as *tort-feasors;*but the bill is simply for an account of the transactions in which thesp defendants assumed to act as executors, and therefore as trustees or *quasi*trustees. We think they are liable to an account in such a case, and that they are to account precisely upon the. principles upon which they would have been liable, if they had in reality possessed the character of executor, with which they thought themselves invested. They are chargeable with what came to their hands of the trust fund; with such part thereof as they may have released or disposed of for purposes of their own; and they must make good what may have been lost by their bad faith or gross neglect. They are entitled to be credited with all sums paid.in discharge of debts, owing by the deceased; for in the hands of the plaintiff, the fund would have been thus far chargeable; and, consequently, such payments are proper deductions in favour of the defendants. But, that is not all; for we think the defendants are likewise entitled to a fair compensation for services done to the estate, in the administration of it, and to be credited with all payments under the supposed will at least, before they had a ground of reasonable belief that the paper was not a will, as it purported to be. The case of *Heel*v. *Stovell,*cited at the bar, from Ch. Cas. 126, and 8 Vin. Abr. 169, is founded on this principle. There, the widow was allowed for payments of legacies given by the will, though it turned out to be no will. The Court of competent jurisdiction having pronounced the instrument to be a will, an innocent person may safely act under the sentence, until it be recalled; and when called to account in a Court of Equity_ however it may be at law — such person ought not to be made personally responsible for moneys paid, while the sentence was in full force, and properly paid according to a due course of administration under the instrument. If the executor of such a paper is chargeable as a trustee, then he is entitled to a trustee’s privileges, and ought not to answer out of his own estate but for wilful default or culpable negligence. *420Honest intentions and reasonable diligence should protect ^rom l°ss> as we^ as ot^er trustees.

These reasons satisfy the Court that the bill ought not to be dismissed; but that the plaintiff is entitled to relief on it. They also enable us to dispose of most of the exceptions upon what seems to us. — proper principles; and we shall now proceed to pass on them.

The defendant, Telfair, excepts to the report for charging the defendants with the value of the goods and debts assigned or released to Perkins. It is said, the defendants did-not receive them, and that the plaintiff may have redress against Perkins himself, as surviving partner; and, therefore, ought not to come against these parties. So far as Ralston was indebted to Perkins, and so far as Perkins was entitled for his share in the firm of Ralston and Perkins, the allowance to him by the defendants was proper; and they must have credits therefor, when the amounts shall be ascertained. The Master has fixed the debt to Perkins as $1,000, and thus far we know the proper credit. But, he has not ascertained what profit Ralston and Perkins made, nor the share thereof belonging to Perkins. It must, therefore, be referred again to him to make enquiries upon those points. The excess in value of the articles received or kept by Perkins, over and above the debt to him and his share of the profits, the defendants might have recovered from Perkins; for he had no right to them. But, it is said, they did not recover the excess, and therefore ought not to be held answerable. We think they ought to be charged with that excess, if Perkins was able to pay, and has since become unable to pay it; simply upon the ground that they made no effort to settle and collect that demand, but suffered it to be lost. But, whether Perkins be now solvent or not, does not seem material; for the defendants not only suffered the debt to remain uncollected, but expressly sanctioned, by their agreement with Perkins, his retaining the goods. Was this agreement made for the benefit of the estate, or for that of the parties to it personally? Very clearly, the latter. It was the price of buying off Perkins’s *caveat;*(which, to be sure, was unauthorised,) and also of inducing him to forego his commission on collecting the debts, and to *421surrender the bonds to the executors. Now, the executors then claimed all the property beneficially, as legatees; and it is thence plain, that they have not only appropriated this amount of the assets, but that they did it for purposes of their own. For such purposes they must pay their own money; and, therefore, are justly chargeable with such parts of the estate as were thus used.

The report submits if to the Court, whether the defendants are chargeable with hires for the negroes which.the will directed to be emancipated; from whom the defendants made no profits, as they were allowed to work for themselves. It charges, however, for the hires of the other negroes; and among them, for Abram and Eunice, whom it appears the defendants sold, and of whom the plaintiff, since he administered, has obtained possession: As to the emancipated slaves, we think the defendants are not liable for their hire. It is clear they acted in that respect from a regard to the supposed wishes of their testator; for as matters then stood, they would themselves have had the profits of those slaves, if any. 'With respect to the hires of the others, the defendants are liable, as far as they received, or ought to have made them. Therefore, the second exception of Telfair is overruled, except as to the hires of Abram and Eunice — as those two negroes appear to have been sold, we are at a loss to know how their hires are charged, and how they come again into the plaintiff’s possession. Therefore, without allowing or disallowing this exception as to them, or the 7th exception of the defendant, Blount, it must be referred back to enquire and state in respect to those two slaves, when they were sold, by whom, to whom, and for what price respectively; and whether the price has been accounted for, and by whom; and if they have come to the hands of the plaintiff, when, and by what means.

The Master states that he refused to credit the defendants with the legacy to Gorham; and for that cause Telfair further excepts. The report does not state the ground of the refusal; but although the fact of its payment is not expressly found, yet it is not denied in the report; and, therefore, we infer that the Master was of opinion that they were not entitled to credit for the legacy, although they had in fact paid *422it. For the reasons already given, the Court is of the con-ti'ary opinion; and, therefore, on the third exception, it must be again referred to enquire what sum the defendants paid on that account, and when it was paid,

The fourth exception of Telfair is, that he is charged with various sums for bad debts which were not collected; and the plaintiff has taken numerous exceptions to the report, because the defendants are not therein charged with various debts that are specified, inasmuch as the debtorsjjwere able to pay, and the defendants ought to have collected them. The exception of the defendant does not object to the charging of any debt in particular, and therefore we take it as being intended to bring forward the general principle of their liability on account of laches, for more than they actually received. Upon that question, our opinion has been already expressed; and the fourth exception of Telfair, must be accordingly overruled. Upon the exceptions of the plaintiff, it is to be remarked that the defendants are chargeable only in plain cases of laches; and in this case, the presumption that they intended to do their duty, and did it, is very strong; because, at the time, they were acting as was thought, for their own benefit exclusively. Upon this principle, the court overrules all the plaintiff’s exceptions, as being unfounded in fact, except the fifth, which is allowed only as far as it respects the balance of the debt of Joshua Smith, and the eleventh and thirteenth which are allowed.

The defendants claimed credit before the Master as in their answers, for large sums paid for the expenses of the suits mentioned in the pleadings, but they were not credited, and they have excepted. With respect to the costs of the suit in the Court of Equity, brought by Samuel Ralston, the father, there is no pretence for charging them in this cause. The court, having a discretion, disposed of the costs *by*the decree in that case, as was fit. Besides, the demand was not against the defendants, as executors, but was founded on a construction of the paper, supposing it to be a will, which would give the plaintiff the right to the residue of the estate, by way of trust arising on the gift to the defendants, and the defence was founded on the opposite construction, namely: *423that the gift to the defendants was not in trust but absolute. It is. plain, therefore, that the defendants were contending for their own interests, and not defending for the benefit of others, rights committed by the testator to the protection of the defendants. As they were contending for themselves, it follows, that the expenses ought to be met out of their own means. The costs of the proceedings to recall the first probate, and of the attempt to obtain a second, stand, in point of form, upon a different footing. According to the case of *Mariner*v. *Bateman,*2 Car. Law Repos. 464, which we entirely approve, the costs might form a just burden on the assets; for an executor, acting entirely or mainly for the benefit of other persons provided for in a supposed will, must be protected from loss, by a faithful, or what was properly deemed a faithful, effort to carry into effect the apparent will. But, in the present case, it is obvious that the contest was. on the part of the defendants, for themselves, and solely for themselves, just as much as it was, on the part of the next of kin, for his benefit. The costs of the litigation ought equitably to follow the fruits of the litigation. In substance, the suits were to determine, which of the parties to them were entitled to the property; and' that one who lost the cause ought to pay the costs. The fifth exception of Tel-fair is therefore overruled.

The same defendant has also excepted, because the Master allowed no commissions to the defendant. From what has been already said, it follows, that this exception is well founded, so far as respects a just compensation for the time and labour employed in the service of the estate; and it must be referred to the Master to enquire of, and fix a proper allowance on, that basis.

It remains only to dispose of the exceptions taken by Mr. Blount; which may be soon done. The first is overruled, •as being unfounded in fact; as are also the third and fifth, for the same reason. The second, respects the transactions with Perkins; and therefore falls within the order made upon the first, exception of Telfair for a further enquiry. The fourth, respects the legacy to Gorham, and therefore falls within the order made upon the third exception of Telfair; and *424must accordingly await that enquiry. The sixth, objects *to*the defendants’ being charged with the sums received from Perkins, as surviving partner, upon the ground that, as such partner, Perkins is the owner. The money was actually received by the defendants, and it was equitably due to the representative of Ralston, and, therefore, must be accounted for by the defendants; and, consequently, this exception is overruled. The seventh has been already disposed of, in the order respecting the slaves Abram and Eunice.

The eighth objects, that after the two commissioners united in the report, and signed it, one of them altered it without the privity of the other. This is not a fit matter of exception, and therefore it is overruled. If the objection be true, in point of fact, the party should have verified it on affidavit, and applied to set aside the whole report, or restore it to its first form.

Daniel, Judge,

dissented from a part of the opinion of the court, and filed the following opinion: I cannot agree to so much Of the opinion of the court -as subjects the defendants to the demand which the plaintiff had, and now has, against Perkins, the surviving partner of the firm of Ralston and Perkins. There is nothing to prevent the plaintiff, as administrator of the deceased partner, bringing his bill, and having an account against Perkins. The defendants are made liable in this bill, only as trustees by operation of law. The law never works an injury. I am ignorant by what principle it is, that the plaintiff can say that the defendants are by force of law their trustee, for a fund they never had, and which has not been lost to the plaintiff, by any act of theirs. Perkins never *Iona fide*settled the partnership with the defendants. He therefore has no pretence to bar the plaintiff’s demand, for a settlement now. I cannot think that the law does make these defendants trustees for this fund, simply on the ground that they agreed with Perkins that he might have the property of the firm that he then was in possession of, if he would withdraw a *caveat*to the probate of Ralston’s will. If the plaintiff could shew, that the estate of Ralston had sustained any loss by the agreement, then there might be some pretence for this charge. But there is nothing of that kind *425in the case. The opinion of my brothers, seems to' me, to be stretching the law which makes persons trustees by implication, farther than is warranted by any established decision.

Per Curiam. Decree accordingly.