#### JOHN SPARKES AND OTHERS *against*SHEMUEL KEARNEY AND OTHERS.

It is no part of the duty of a trustee, appointed' to sell fox- the payment of debts, to put slaves, conveyed in the trust deed, out as apprentices to trades, and he is liable to account for the value of the services of such slaves, dining such appx'enticeship.

*482An administrator, or trustee appointed to sell, who keeps back certain slaves to await the event of a suit pending against him, (involving then- title,) is not bound to account to the next of kin for their hires, before the decision of the suit.

Cause removed from tbe Court of Equity of Cleaveland County-

Stephen Sparkes, of tbe County of Eranklin, in this State, made a deed in trust, dated lOtb day of April, 1843, to indemnify tbe defendants Shemucl Kearney and Kichard W. Kearney, as sureties for certain debts therein mentioned, and to secure the payment of these debts to the several creditors ; in which said deed were conveyed to them, (the said Kear-neys,) a tract of land, containing 957 acres, which said Sparkes had bought from Jones Cooke, as the executor of William Harrison, S. J. Jones, and Jones Cooke; also an improved lot of land in the town of Eranklinton; also twelve slaves, by name, and their increase after the date of the deed ; all his house-hold and kitchen furniture; all his cattle, horses, mules, oxen, sheep, hogs and pigs; also, a wagon ; and appointed the said Kearneys agents to collect large sums of money due him from divers persons, to be held on the same trusts. The condition of the trust-deed was to sell the property, and apply the proceeds to the payment of debts specified ; to pay the trustees a reasonable sum for their agency and services in selling the said property, &c.; and the residue, if any, to pay over to Stephen-Sparkes, or his assigns, and reconvey the property not sold for the purposes of the conveyance in trust. Stephen Sparkes, besides the slaves conveyed, had two other female slaves, Candice and Minerva, which were in his possession at his death, but these are claimed by one White, and a suit is still pending as to them; these went into the hands of his administrator. Sparkes died, in the autumn of 1846, intestate, and all his personal property remained in the possession of his wife up to her death, which occurred in the year 1848. The defendant, Hilliard, administered on his estate on 12th January, 1849. The title of the 957 acres of land proving defective, he was evicted by title paramount. The suit in eject-*483jnent was begun in tbe life-time of tbe said Stephen, bnt was decided after bis death. A recovery was, however, subsequently bad on tbe covenants in tbe deed from Jones Cooke, &c., to Stephen Sparkes, and tbe money collected and paid over to tbe trustees.

This bill was brought by tbe next of kin and heirs-at-law of Stephen Sparkes, charging collusion between tbe trustees and tbe administrator, and praying an account and settlement of tbe estate, as well that in tbe bands of tbe trustees, as that in tbe bands of tbe administrator.

At the August term, 1855, of this Court, it was declared as tbe opinion of tbe Court, “ that tbe said Hilliard, as administer, and tbe said defendants, Shemuel Kearney and Eichard *W.*Kearney, as trustees, are liable, and ought to account to and with tbe plaintiffs and others,.tbe next of kin, and heirs-at-law of the said Stephen Sparkes, deceased and it was decreed, among other things, that “ tbe clerk do take an account of the personal estate of tbe said Stephen, deceased, which came to tbe bands of tbe said ¥m. F. Hilliard, as administrator, or to the bands of any other person, by his order, or to bis use. And that be also take an account of tbe trust estate of tbe said Stephen Sparkes, in the bands of tbe defendants, Shemuel Kearney and Eichard *W.*Kearney, as trustees, as well of the realty as tbe personalty — computing what is due on tbe said trust, for principal and interest, and to whom; and computing what portion thereof' is properly due to tbe next of kin and heirs-at-law of tbe said intestate. And it is ordered that tbe said intestate’s personal property be applied in tbe payment of his debts, and, funeral expenses, in due course of administration,” &c.

In obedience to this order, tbe clerk of this Court at Mor-ganton, *Mr. Dodge,*made a report in extenso upon the several matters referred to him; but only that part which embraces tbe matter excepted to, it is deemed expedient to notice.

'While tbe slaves were in tbe possession of Mrs Sparkes, (immediately ensuing the death of her husband,) a medical bill, taxes and other expenses, were paid by tbe trustees, and charg*484ed against tbe estate. Th *& first exception*to the report is for the clerk’s refusal to allow this charge.

"While the property was in the possession of the trustees, after the death of Stephen Sparkes, three of the slaves, Hardy, Henderson and Stephen, were, by the trustees, put to trades, and kept working at the same for two years. Mr. Dodge thought it was wrong to put these slaves to such service, and that they ought to pay hires for them during such apprenticeship ; accordingly, they were so charged in his report, and this forms the ground of the *second exception.*The argument in support of this exception was, that the estate received the increased value of the slaves in the amount produced by their sales.

The *third exception*is, that the clerk has charged the trustees with the rent of the house in Eranklinton in favor of the next of kin; whereas, as the defendants insist, rent is to be accounted for to the heirs, when they apply to redeem the land; and that the sum received for damages for the. breach of the covenant of seizin and quiet enjoyment is, likewise, allowed in favor of the next of kin, whereas it should be allowed in favor of the heirs-at-law..

The nature of the *fourth exception,*is sufficiently explained in the opinion of the Court.

Th *z fifth exception*is, that the hires of the girls, Candice and Minerva, are charged against the administrator, although there is a suit pending against him. for the recovery, of the slaves themselves.

The *sixth exception*is, that the clerk has not reported.what is due to the heirs, and what to the next of kin..

The *seventh exception*is sufficiently noticed in the opinion of the Court.

The cause was heard upon a motion for further directions and upon exceptions to tire report of the clerk.

*Guión,*for the plaintiff.

*Winston, Sr.,*and *Avery,*for defendants.

*485Battle, J.

By an interlocutory decree made in this cause at August Term, 1854, it was referred to the clerk to make certain enquiries, and state certain accounts; which dnty he has performed ; and it comes on now upon a motion for further directions upon his report and exceptions, filed, thereto by the defendants Hilliard and Shemuel Kearney..

1. The first exception is, that tl\e-cferk has. refused to allow, as credits to Kearney the traste©)., the payments made by him for medical services rendered-; to- the slaves, while they were in the possession of Mrs.. Sparkes, and for the payment of the taxes and other expenses of the said slaves during that time. This exception is overruled. He- is not charged for the hires or profits of the- slaves during that period; and if he permitted the widow of his grantor in trust to keep them, he ought to have made her pay their exjrenses while she was using- them for her own benefit.

2. The second exception., that the clerk has charged Kear-ney with- the- hires of three of the slaves, to wit, Iiardy, Henderson and. Stephen, while they were learning their trade, and also- with their full value, upon the sale of them made after-wards, is also overruled. As trustee to sell the property for the payment of debts, it was no part of his duty to have the slaves instructed in. trades. There is no testimony to show that either of the said slaves, except Hardy, was increased in value by these means; and if the value of Hardy were increased, the benefit must accrue to the *cestui que trusts,*and not to the trustee.

3. The third exception is sustained. The personal property was the primary fund for the payment of the debts, unless the trustee, in the exercise of the discretion entrusted to him, thought proper to sell the lands for the payment of the debts mentioned in the deed in trust. Not having done so, the land, and the rent as an incident to it, belong to the heirs-at-law, instead of the next of kin, and in this case they are not the same persons. For a similar reason, the damages recovered for a breach of the covenant of warranty which occurred after the death of the grantor in trust, must belong to the *486beirs. If there had been no trust, the land of the ancestor would have descended to his heirs, and, of course, they would have sued on the warranty, and taken the damages. So, tire recovery by the trustee must be for their use after the purposes of the trust have been otherwise satisfied.

6. The sixth exception will be considered here, as it depends on the third which we have just decided ; and that decision makes it necessary that it should be sustained. As the next of kin, and the heirs-at-law of Stephen Sparkes, are not the same persons, there must, of course, be a report to show what is due to the one class of persons, and what to the other.

4. The fourth exception is overruled ; because the testimony does not show that the defendants are entitled to anything for the support and the burial expenses of the slave Isaac. One of the witnesses, Mr. Person, states that while Isaac lived with Mrs Sparkes, he was worth $26 or $80 per annum; but he knows nothing of him afterwards. Mr. Perry says that he was not worth anything; but no witness states that he was an expense.

5. The fifth exception is sustained; and for the reason which is assigned in it. The girl slaves, Candice and Minerva, have been claimed by another person, and a suit has been instituted, and is now pending for them. If recovered, their hires may possibly be claimed and recovered also by the same person. It was wrong, therefore, to chaige the hires at present against the administrator, in favor of the next of kin.

7. The seventh exception is overruled. It is not founded on the ground that the clerk fixed the charge for keeping the slaves Piety and her children, and Betty and her children, at the sums which he reports, without evidence. It is that he fixed it too low. There is no testimony before us to show that it ought to be higher, and we cannot correct the clerk’s estimate, without some means of ascertaining what the true charge ought to be.

It must be referred to the clerk to correct his report in the *487particulars mentioned, and the cause is retained for further directions.

Per GuriaM. Decree accordingly.