#### Daniel Jewell and others *vs.*Benjamin Jewell and others.

*Parties*— Account—Administrator—Rents—Agent.

To a bill, against an administrator, for account of the estate of the intestate, received by a deceased agent and attorney of the administrator and heirs, for whose professional services a large amount was claimed, *held,*that a representative of the attorney was a necessary party to the bill.

H was the agent of B, an administrator, to receive the rents of a certain lot. After some years, a son of H claimed the lot as his own, and received the rents for many years, but permitted his father to use them: *held,*that the son was liable to account to B for the rents received by him.

Where an administrator receives, himself or by agent, the rents of real estate of the intestate, though his sureties may not be, he is liable to account to the heirs for the rents thus received.

BEFORE DUNKIN', OH., AT CHARLESTON, JUNE, 1858.

This case will be understood from the reports, exceptions and circuit decree.

The first report of the master, Mr. Gray, filed on the 20th June, 1856, is as follows:

The-order of Chancellor Dargan, on the 11th March last, after directing a sale of the house and lot at the corner of East Bay street and Unity alley, and providing for the distribution of the sale, proceeds to direct the master to take the account of the defendant, John Meyer, the tenant of the house, for the rent due, and to receive the same and distribute the same as the sales-money. Also, that the master take and state an account with Benjamin F. Hunt, the defendant, of the rents received, or to be accounted for by him. And also, to take and state the account of the administrator, Benjamin Jewell, with the estate of his intestate in South Carolina, and to receive testimony as to the administration *297and distribution of the estate in Louisiana, and report the same.

I respectfully report my investigation of the matters so referred to me, in the order of time. First, as to the administration account of Benjamin Jewell, with the estate of Benjamin Jewell, the elder, in South Carolina. I find that the said administrator executed his bond and surety to the ordinary for Charleston district, on the 27th March, 1S29, in the penal sum of $8,000. There does not appear to have been any inventory of the estate made by the administrator; and the estate of Benjamin Jewell, the elder, in South Carolina, as far as I can discover, consisted of the house and lot at the corner of East Bay street and Unity alley, and of eleven shares in the Union Insurance Company of South Carolina.

I find that the administrator applied to the ordinary, by petition, on the 15th June, 1834, for leave to sell the said shares, for the purpose of distribution; and on the 25th of the same month, in that year, leave to sell them was granted by the ordinary. I further find that the administrator passed his accounts before the ordinary, commencing the 23d June, 1829, to the 6th April, 1832, showing a balance to the credit of the estate, on the last-named day, of -nine hundred and fifty dollars eighteen and a quarter cents, ($950 18¿,) a copy of which is herewith filed. In stating an account with the administrator, I have charged him with this balance, from 6th April, 1832, with the rents of the house from that time, and the dividends on the Union Insurance shares, up to the time when he obtained leave to sell them, viz: in 1834; I have, then, charged him with the sales of these shares, at the then market value, viz: $S4 each, amounting to $924; I have given him credit for the taxes and insurance of the property, from year to year, and have charged him with interest on the annual balances, to the 6th April, 1845, when the rents passed into other hands, so that the amount due by the said administrator, on the '5th June, 1856, is seventeen *298thousand seven hundred and eighty-three dollars, thirty-five cents, ($17,783 35,) as will appear by the account herewith filed.

I further report, that I have stated an account with Benjamin F. Hunt, Jr., for the rents of the said house, from the 6th April, 1845. From an inspection of the tax returns, 1 find that the house and lot have been returned as the property of the said Benjamin F. Hunt, Jr., from 1846 to 1852 inclusive, before which time they had always been returned as belonging to the estate of Jewell. I have charged him with the rents of the house from the 6th April, 1845, to 16th June, 1854, at the rate of $300 per annum, for which his receipts have been produced, and have credited him each year with the taxes and insurance, aud have charged interest on the several balances, so that the amount due by the said Benjamin F. Hunt, Jr., with interest to the 6th June, 1856, is $8,549 48. The rents from the 16th June, 1854, to July, 1855, at an increased rent of $27 50 per month, were received by Mr. M. Goldsmith, as agent of B. F. Hunt, or for estate of Jewell.

I further report, that I have received from the tenant of the house, the rent from the 16th July, 1855, to the 8th April, at the rate of $27 50 per month, amounting to $240.

And lastly, I report, that no testimony has been submitted to me as to the administration of the estate in Louisiana.

Exception to the report of master Gray, in behalf of Benjamin Jewell and B. F. Hunt, and of other defendants:

Because the said report was made up and filed after the above-named defendants had filed their answers, and neither they nor their solicitors had notice to attend any reference before the master previous to the filing of the said report.

AGREEMENT IN THIS CASE..

It is agreed between Mr. Campbell and Mr. Northrop, that Mr. Gray shall reconsider his report of 20th June, 1856, and *299that Mr. Northrop shall have the right to file exceptions to said report *as if it had not been*filed; and that it shall be considered as open in all respects, except that whatever report shall finally be made by Mr. Gray, shall be considered as bearing date on the 20th June, 1856.

References to close and report to be made up as early as practicable, Mr. Northrop engaging to avoid all delay.

(Signed) JAS. B. CAMPBELL, C. B. NORTHROP.

Charleston, 16th February, 1857.

Exceptions in behalf of Benjamin Jewell to the report of James W. Gray, master in Chancery:

I.That in the account stated against Mr. Benjamin Jewell, he should not have been charged as administrator of his deceased father, with any of the rent of the real estate.

1. Because there was no evidence that he ever authorized any one to collect the rents on his account as administrator; for, as administrator, he had no concern with the real estate, and he never received any rents.

2. Because it was in evidence that all of the said rents were actually received by the late Benjamin F. Hunt, who was the attorney of the heirs-at-law of the intestate, for whom he conducted the litigation, affecting their rights to said real estate and their status as legitimate children and heirs of the intestate.

3. Because the evidence before the master showed that the late Colonel Hunt managed the said real estate for the heirs of Jewell, who had entrusted him with the prosecution of their rights; and that the said Benjamin Jewell never assumed any authority, or exercised any trust, in respect to the real estate, except as one of the co-heirs of his deceased father.

II. That it appeared, from the evidence before the master, that the said Colonel Hunt claimed to appropriate all he had received in payment for his professional services, and for *300his advances, as the attorney of the distributees and heirs-at-law of the intestate, who were as much concerned in the same as this defendant, and as well able to protect their interests; but that the importance of the litigation to the whole family was such that they were all in the power of their said attorney.

III. That, even if the defendant, Benjamin Jewell, could be held responsible, as administrator, for the rents of the real estate of his intestate, it appeared in evidence that all of the rents were received by Hunt & Shand, and their successor, Benjamin F. Hunt, who were lawyers, in good standing, and that the defendant, who was residing in another State, was justified in employing them as professional men, and could not be made responsible for the losses occasioned by any pretended defalcation of his attorneys, in the absence of fraudulent collusion, which is charged in the bill, but disproved by the evidence.

IV. That there was no evidence before the master, in support of the charges of fraud against this defendant; that it was proved that he never received any of the rents of the real estate; and that there was nothing in the evidence to warrant the master’s charging him with interest, or with interest upon a calculation with annual rests.

Exceptions in behalf of Benjamin F. Hunt, one of the defendants, to the report of James W. Gray, master in Equity:

1. That after the coming in of this defendant’s answer, and the evidence before the master, there was no ground for any account whatever against him.

2. That at the time of the filing of complainant’s bill of complaint, the said defendant was not in the possession of the property, of which the complainants prayed a partition* nor in the reception of the rents.

3. That, even if it should he conceded that this defendant had, for a period of years, intruded upon the real estate of the complainants, and his codefendant, who were the legal *301owners, there is no evidence that he did so, as their confidential agent, or that there was any relation of trust between him and them, which could subject him to an account in chancery, as a defaulting trustee.

4. That it appears, from the answer of this defendant, and the evidence of Mr. Philips and Mr. Goldsmith, that his only connection with the property in question, was under the direction of his deceased father, who was, up to the time of his death, the attorney of the heirs of Jewell; and, with their consent, had the entire control of the property, and that he claimed, without objection from them, to be entitled to treat it as his own, on account of his professional services and advances.

5. That the master has charged this defendant, in the account for rents received by him, with rent from the 6th of April, 1845, until 6th April, 1853, or for eight years’ rent, at the rate of $300 yearly; whereas, the receipts given by this defendant, in evidence, only show that he received the sum of $375, and it was proved that up to Mr. Phillips, the clerk of Col. Hunt, actually received all of the rents, and credited them to Col. Hunt; and that Mr. Goldsmith received the rents, in the same way, from January, 1853, after which time it is not pretended that this defendant ever received any portion of the rents.

6. That the master has charged this defendant interest, with annual rests, as if he were a defaulting executor, or trustee, whereas, there is no pretence that he ever had any such relation to the parties in interest.

SECOND REPORT OP THE MASTER, MR. GRAY.

Since the filing of my report of the 20th June, 1856, I have been attended by the solicitors of the parties, and taken the testimony of several witnesses, and have investigated the claim of Benjamin F. Hunt, for professional services rendered to the parties in the causo.

*302After much consideration of the testimony and the character of the cause, I have concluded that my former report ought to be modified in several important particulars.

From the testimony given in relation to the claim of Berij. F. Hunt, I am satisfied that his services were of the greatest importance to the parties interested in the estate, and I have concluded to allow for the claim, five thousand and ninety-four dollars forty-three cents, ($5,094 43,) to be paid out of the assets chargeable to Benjamin Jewell, the administrator of the estate, which were in Mr. Hunt’s hands, as his attorney. This has rendered necessary a re-statement and modification of the account filed with the former report.

In taking the account with the administrator, under this new aspect, I have charged him with the monies received, from time to time; but not with the interest on the annual balances, as the items constituting the claim of Mr. Hunt run through the long space of time in which the important cause of *Jewell vs. Jewell*had been pending in the various courts. After stating the account in this matter, I find there is due by the administrator, Benjamin Jewell, Jr., to the estate, two thousand seven hundred and eighty-six- dollars forty-eight cents, ($2,786 48,) as per account A, herewith filed.

In taking the account with Benjamin F. Hunt, Jr.,, the defendant, I find, as stated in my former account and report, that the rents of the house on East Bay were received by him from 1S45, and that the tax returns from 1846 to 1852, inclusive, were made in his name, as his property; and his receipts for the rents, from 6th April, 1845, to 16th June, 1S54, have been exhibited to me at the rate of $300 per annum. I have taken this account in the manner stated in my former report, charging interest on the annual balances, and crediting each year the taxes and insurance. In the former report, I found that the balance stated in this account was due by Benjamin F. Hunt, Jr., as his acts, in relation to the property served to indicate that he treated it as his own. *303But I have re-considered this matter, and from the testimony since produced, am-disposed to think that this amount ought also to" be charged to the administrator. Mr. Phillips, who was clerk in Col. Hunt’s office from 1841 to 1849, testifies, that with the consent of Col. Hunt, these rents were received by him, and applied to the payment of his salary as clerk. Another witness, Henry Goldsmith, testifies, that to 1853, the rents were collected by Mr. Whitney, and applied to the payment of rent due by Col. Hunt to Dr. Geddings ; and that the witness afterwards collected the rents, and accounted for them to Col. Hunt; also, that he made the return in the name of B. F. Hunt, Jr., beginning in 1853,as he then found it made, and so he made it at the direction of Col. Hunt. It would seem then that B. F. Hunt, Jr., did not derive anv benefit from the rents, and his answer corroborates the fact.

I find that the amount due on this account is three thousand nine hundred and thirty-seven dollars fifty-five cents ($3,937 55); and if I am right in the above conclusion, the administrator will be liable for

Account A............................................ $2,786 48

And for the account B.............................. 3,937 55

Amounting, together, to' ........................... 6,724 03

I further report, that the rents from the 16th June, 1854, to the 16th July, 1855, at an increased rate of $27 50 per month, were received by Mr. Goldsmith, as agent of B. F. Hunt, or for the estate of Jewell; and that one quarter’s rent was paid to Mr. J. B. Campbell. The rents from the 16th July, 1855, to the 16th April, 1858, have been paid to me by the tenant, John Meyer, now deceased, and by Mr. Meyer, the present occupant, at the rate of $27 50 per month.

I further report, that at the time of filing the bill, the 4th September, 1855, John Meyer was in possession of the house, as tenant, who declined paying the rents to any person until ordered by this Court, and these rents were paid to me as above mentioned.

*304I further report, that of the eight distributees of the estate of A. Bondy and wife, and her children, and Jane E. Jewell and her family, by their several answers, and Mrs. Juliana Rickenbaeker, as appears from her letter to her brother, dated 1st April, 1855, which is in evidence, object to any account being taken against the administrator ; so that the liability of the administrator will be reduced by their shares, amounting to three-eighths, and Benjamin Jewell’s share, one other eighth, to one-half of the sum reported.

I further report, that since the former report., I have ascertained that in addition to the other assets of the estate, there are two shares in the Union Bank of this city, standing in the name of B. F. Hunt, attorney of Benjamin Jewell, on which Col. Hunt has received thirty-seven dividends, amounting to $105, which I have included in account A, and there are still in the bank, undrawn, fourteen dividends.

*Memoranda of causes in which Col. Hunt was engaged for the Jewells.*

. 1830. July 3. — Obtaining letters of administration on the estate of Benj. Jewell.

Defending administration on citation before the ordinary, when administration to B. Jewell was revoked and awarded to Simon Magwood.

1S33. Trial of the cause of Jewell and Magwood, in the Court of Common Pleas, on appeal from the ordinary, resulting in verdict for the plaintiff, Benj. Jewell.

1834. April. — Same cause on appeal, confirming the verdict below, and re-establishing the administration of B. Jewell, and thereby settling, in the State Courts, the legitimacy of Benj. Jewell and his family.

1834. December. — Ejectment suit, *Roe, dem.,*S. J. Jewell et al. vs. Benj. Jewell, for the recovery of the property at the corner of Unity alley and East Bay, in the United States District Court, at Charleston, S. C.

*305IS34. The case of Sophia Storne and husband, for dower, vs. James Preston, brought in the name of Jno. B. Thompson, in which Messrs. Pettigru and Lesesne pleaded, first, *ne tin-ques accouplie,*and second, elopement and adultery — resulting in non-suit.

Judgment on file in the Court of Common Pleas.

1843. The esse of Jewell vs. Jewell, as reported'in 1 How., 219 to 234, in which the judgment of the Circuit Court was reversed as to the ruling of the testimony, which had been for the defendants, Col. Hunt’s clients.

1843. Col. Hunt represented his clients in a suit brought in the Court of Common Pleas, (State,) and subsequently in the new trial in the United States Court, in which plaintiffs, were non-suited in April, 1843.

1843. April. — Sarah J. Jewell and others vs. Benjamin Jewell and others. Bill in chancery, filed by Ashby, solicitor, and discontinued.

TESTIMONY.

*J. L. Petigru.*sworn, says of the inception of the' case of' Jewell, he is ignorant. The decisions in the Court of'Ordinary, and the Court of Law had been made, and Jewell had! got the administration of the estate before the witness was-retained. Witness came in, on the retainer of the widow, who desired him to recover the house in Charleston.. Witness brought ejectment. Witness told her that, as the- estate was in Louisiana, they had better decide the question there. But the Louisiana lawyers told her, that the question must be decided according to the law of the place where the supposed marriage took place, and that the decision here would' be of the last importance in ascertaining the heirs of the Louisiana estate, which was understood to be large. The first, trial took place in the Circuit Court of the United States, when Judge Lee presided; it was argued by Mr. Legare and. witness on one side, Mr. King and Mr. Hunt on the other,,and resulted *306in a mis-trial. Judge Lee said he had never heard a case better argued. Witness thinks Col. Hunt argued the case with great skill .and ability. He prepared for a second trial with might and main, and when it took place, Judge Wayne presided. It was argued by Mr. Legare and witness on one side, and by Mr. Hunt and Mr. King on the other. The questions involved were of the greatest magnitude, going to the examination of the very institution of marriage, and the conditions necessary to its validity. The Judge charged against us throughout. Witness took exceptions to his charge, and to his ruling of testimony. The case is reported in 1 Howard. When the case came on in the Supreme Court, Judge Story was not there, and the other Judges were equally divided on the great question about what is essential to the contract of marriage. The case was sent back for error of the Judge in ruling out evidence, which he ought to have received. The case was argued in the Supreme Court by Mr. Legare, and, witness thinks, Col. Hunt. Witness prepared very extensively for the last trial. We had got but a short way in the evidence, when Judge Wayne ruled out a very important piece of testimony. Witness was so annoyed by this ruling, that he told the crier to call the plaintiff, and upon ¡the Judge asking the reason, replied, that he could not afford ■to go to Washington every year to settle points of evidence. Witness intended, at the time, to renew the action in the State Court, but nothing further was done, as he understood that his clients had lost all their property. The case was in Court many years. Witness received from Mrs. Jewell $200, and he spent more than that for the expenses.

Witness cannot say what Col. Hunt’s services were worth. If Col. Plant’s client, on the termination of the case, had .given him $5,000, witness would have thought it liberal, and -would have seen no objection to his taking it. If witness’s •clients had offered him $5,000, and he had thought they •could afford it, he would have accepted it, without any feel*307ing of impropriety; but should have felt bound to give Mr. Legare his share.

*John E. Phillips,*sworn, says, upwards of fifteen years ago he commenced staying in Col. Hunt’s office, in the year 1842 — probably before. He several times collected the rents, say, generally collected the rents of the East Bay house. Witness accounted to Col. Hunt, when he was agent, for the rents, and, by leave of Col. Huut, received them on account of his salary. Thinks the rent was $300 per annum, and witness’s salary was originally $300, and afterwards more. Thinks B. F. Hunt, Jr., became copartner with his father soon after his admission to the bar. Thinks about five years after witness entered Col. Hunt’s office. Thinks he left Col. Hunt’s office about eight years ago. Was not there as late as 1851, as he thinks. Has no recollection of having ever returned this property for the taxes. Witness knows that all the rent of the house, up to the time of witness’ leaving Col. Hunt’s office, was applied to his salary, as clerk. During that period, witness can say, that no one received rents but himself. Cannot say the arrangement, that he was to be paid from this rent, commenced with entrance into the office, but a year or two afterwards.

*H. Goldsmith,*sworn, says he was engaged by Col. Hunt, as out-door clerk, in 1850, and entered his office in 1851, and continued until after the office was taken from him. Thinks in 1852 was the first he returned the property for taxes, the only guide he had for the way of making the return, which was in the name of B. F. Hunt. He made the return by direction of B. F. Hunt. Witness saw very little of B. F. Hunt, Jr., at his father’s office, while he was there; was there occasionally, but was seldom engaged in professional business there. They were partners. The books of the office were in the name of Hunt & Son. Witness commenced collecting the rents immediately after Whitney’s receipt, which was in 1853. Witness followed the form of Whitney’s receipt for the two next receipts, and afterwards receipted in the name *308of Col. Hunt. Witness believes that the rent which Whitney received went to Dr. Geddings, to pay Col. Hunt’s rent. Witness collected the rents after that time, and accounted to Col. Hunt, or his order. Witness has tax receipts and vouchers for repairs doue to the house. In 1853 he returned it as property of B. F. Hunt; in 1854, 1855 and 1856, as estate of B. Jewell. Witness accounted to Col. Hunt for all the rent, except one quarter’s rent, which he paid Mr. Campbell, by virtue of a letter which Mr. Campbell showed him. That was a letter from B. F. Hunt, Jr., authorizing Mr. Campbell to receive the rents.

(The letter is produced by Mr. Campbell, on the call of Mr. Northrop.)

Col. Hunt always acted for his son, as if it were his own business.

*Exceptions to the Report of master J. W. Gray, of June,*1858, *on behalf of the defendant, Benjamin Jewell.*

1. Because Benjamin Jewell, as administrator of the personal estate of his deceased father, was not responsible for the rents of the real estate of his intestate, except for such sums as were actually received by him.

3. Because, if Messrs. Hunt & Shand were authorized to collect rents, in the name of the administrator, and charge the same in his account with the ordinary, then he should be only chargeable with the balance of the last account rendered by them, before the ordinary, viz : 6th April, 1832..............................................................$950 18

And the following sums, received by Col. Hunt, for him, as administrator, viz:

Dividends, April, 1833....................................... 93 50

“ “ 1834.................................... 93 50

“ “ 1835...................................... 93 50

Sales of eleven shares Insurance stock.................. 924 00

.Dividends on two shares Union Bank.................. 105 30

$2,259 98

*309which sums he was warranted in leaving in the hands of Col. Hunt for the expenses of litigation.

3. Because there were no circumstances in evidence to justify the charges of interest upon the balances of the account, as reported by the master.

4. Because the account taken in exhibit B, filed with the report of the master, was for rent collected by Col. Hunt, who was, during the whole period, and long before, the attorney of the heirs of Benjamin Jewell, Sr., to whom the property belonged. And this defendant, as administrator, had no connection whatever with the real estate, or Col. Hunt’s management of the same.

5. Because, even if this defendant could be held responsible for the rents collected by Col. Hunt, there were no circumstances in evidence which would justify the charges of interest, or the punitory charges of interest, on the annual balances.

6. Because the whole claim of the complainants against their co-heir, Benjamin Jewell, as administrator, is stale and unjust; the last account before the ordinary having been filed more than twenty-three (23) years before the filing of the bill, and the ejectment suit for the recovery oí the property having been brought against all of the heirs of the intestate, and defended for them jointly, by Col. Hunt, more than twenty-one (21) years before the filing of the bill, and these pretended claims for rent.

*Exceptions before the master, by complainants.*

1. Because he has allowed to the administrator credit for the large sum of $5,094 43, for the professional services of Col. Hunt, upon insufficient evidence of such services, and of their value, and of the right to charge the same, in his accounts, to the estate of his intestate.

2. Because, in his account with the administrator, he has stated the interest account without annual rests, and the *310account appended to the original report, is a correct account, and the same ought to be confirmed.

These exceptions were heard and overruled by the master for the reasons given in his report.

The complainants renew their exceptions, heretofore taken, before the master, and further except as follows:

1. Because the account with the administrator, Benjamin Jewell, is incorrectly stated. It should have been made up with interest on both sides, and annual balances in the usual and established way of accounting in this Court; and the account appended to the first report, in this case, is correct in form, and whatever set-off, or credit, the administrator may be entitled to, ought to be credited to him in like manner and form, and then, a final balance being struck, will show a fair and just account.

*2.*Because the master, by his report, has discharged B. F. Hunt, Jr., from all liability for the rents of the premises, at the corner of East Bay and Unity alley, while in his possession, and claimed by him as his own property.

Dunkin, Cii. The exceptions to the master’s report cannot well be understood without some preliminary statement of the facts. These are principally derived from what is termed “the paper book,” in *Jewell vs. Jewell,*reported in 1 Flow., 219; as well as the report of Judge Martin, and the opinion of the Appeal Court, by Judge Harper, in 1833-1834, in *Jewell vs. Magwood,*Rich. Eq. Cas., 113, together with the evidence taken by the master in this cause.

About the year 1794-5, Benjamin Jewell resided in Savannah, where he kept a grocery store. In 1795, Mad. Prevost, a French refugee, from St. Domingo, with her family, arrived in Savannah. Sophie Prevost was her daughter. According to the evidence, a marriage ceremony afterwards took place between Benjamin Jewell and Sophie Prevost. As he *311was an Israelite, and she a Roman Catholic, their union was, according to the Jewish rules, irregular. But they lived together, as man and wife, for several years, in Savannah. About 180'4, they removed to Barnwell district, and resided some two years, about ten miles from the Court House. They then went to Charleston, where they lived together until about 1812. During this interval, they passed as husband and wife, and eight children were born to the marriage. On the other hand, in March, 1796, while they were living in Savannah, Sophie, under her maiden name of Sophie Pre-vost, executed a paper, in the presence of two very respectable witnesses, in which she acknowledged the receipt of $500 from Benjamin Jewell, as well in satisfaction of a suit instituted against him for breach of promise of marriage, as also in payment of past cohabitation and of future cohabitation. And, on lOth December, 1810, during their residence in Charleston, a deed of separation between them was executed, reciting their past cohabitation, and providing for the payment to her, by the name of Sophie Prevost, of the sum. of $3,000, and a bill of sale of four negroes, (by name,) and some scheduled furniture. She executed receipts for the same, as Sophie Prevost, on 11th January, 1811, and the papers were duly proved and recorded in the Secretary of State’s office, on the day last mentioned. It was also provided by this instrument, that, of their eight children, she should retain three, to wit: Juliana, Daniel and Washington, and the father should take Benjamin, Joseph, Hannah, Hetty and Delia.

In June, 1813, Benjamin Jewell intermarried with Sarah Isaacs, a Jewess, of respectable family, in Richmond, Virginia. They resided in Richmond until the year 1820, and perhaps, rather later, when they removed to the State of Louisiana. He continued a resident of that State until his death, which took place in the latter part of 1828. In the meantime, and during the lifetime of Benjamin Jewell, to wit: about the year 1820, Sophie had intermarried with *312Joseph Storne, of Charleston, whose name she ever after-wards bore, and whom she survived.

It is stated in the pleadings, that Benjamin Jewell died, possessed of a large estate in Louisiana, which, upon his decease, fell into the hands of his reputed widow in that State, and his children by her. He owned, in South Carolina, a lot of land, with a wooden house thereon, situate at the corner of East Bay and Unity alley, and also eleven shares in the Union Insurance Company. The late Col. Simon Magwood was his agent to receive and remit the rents and dividends of stock, and the receipts of Benjamin Jewell,.as late as 1828, were established by Charles A. Magwood.

At the time of Benjamin Jewell’s death, some of the children, by his marriage with Sophie Prevost, were resident in Louisiana, and some in South Carolina. The evidence does not enable the Court to fix the residence of each. But the two plaintiffs, Daniel Jewell and Juliana Rickenbacker, were residents of South Carolina — the former living in Charleston, the latter in Charleston or in Orangeburg. The defendant, Benjamin Jewell, was, at that time, a resident of the parish of Point Coupee, in the State of Louisiana. Soon after the decease of his father, he repaired to South Carolina, as he stated in his answer, and on 27th March, 1S29, letters of administration of the estate were granted to him by the ordinary of Charleston district; “that he appointed Messrs. Hunt and Shand to act for him, as his agents, in the administration of his father’s estate, and returned home to Louisiana.”

, Very soon after the grant of administration to the defendant, application was made by Col. Simon Magwood, as agent, or attorney, of Sarah J. Jewell, to the ordinary, for the purpose of having the defendant’s letters revoked, on the ground that he was of illegitimate birth, and to have the same granted to the applicant, as attorney of the lawful widow of Benjamin Jewell, deceased. A decree was made by the ordinary, in accordance with the prayer of the petition, from which decree an appeal was taken to the Court of *313Common Pleas. The litigation, thus commenced, was actively prosecuted in the various Courts until 1841 certainly —perhaps until 1843. It involved questions, both of law and fact, of great interest and importance, as will be seen by the records to which the Court has referred. But the result in this State was not so important for the amount involved, as for establishing the *status*of the parties, and also from its bearing or influence on the Louisiana estate. Mr. Petigru (who represented the widow in the United States Court) said, “ that the Louisiana lawyers had told his client, that the question must be decided according to the laws of the place where the supposed marriage took place, and that the decisión here would be of the last importance in ascertaining the heirs of the Louisiana estate, which was understood to be large.”

The suit in reference to the right of administration, was finally determined in favor of the defendant, Benjamin Jewell, by the judgment of the Court of Appeals, on 14th April, 1834.

Proceedings in ejectment were then instituted in the Circuit Court of the United States in behalf of Sarah J. Jewell, and her six children, for the premises at the corner of Unity alley. On 24th December, 1834, the declaration and notice were served on Claus Dascher (the tenant) and Daniel (one of the present plaintiffs). A consent rule was taken out by which Benjamin Jewell, Samuel Rickenbacker, and Juliana, his wife, (another of the present plaintiffs,) Jacob Meyers, and Delia, his wife, Daniel Jewell and Washington Jewell, were made defendants in place of the nominal defendants; and a plea of not guilty was filed by Benjamin F. Hunt, attorney, in behalf of all the defendants; including, also, Verg Aigne, and Hannah, his wife, and Joseph Jewell.

A detailed narrative of these proceedings appears in the writ of error finally sued out on the 11th May, 1841, after judgment on verdict for defendant. It appears that there had been two mis-trials prior to the verdict. Mr. Petigru’s description of the difficulties in the cause, and the forensic *314ability exhibited in the defence, cannot be abridged. It appears to have finally terminated in a non-suit in April, 1843.

On 4th September, 1855, these proceedings were instituted in behalf of Juliana Riclrenbacker, Daniel Jewell and Stephen N. Berry, and Sarah J., his wife, alleged to be the daughter of a deceased child of Benjamin Jewell, which child had married one-Mitchell, and had since died. The object is to have partition of the premises at the corner of East Bay and Unity alley, and an account of the rents, as also an account of the administration of Benjamin Jewell, (the defendant.) The premises have been sold by the master, under the previous order of the Court, aud no objection was stated to partition among those of the parties who were the heirs of Benjamin Jewell, deceased, and Sophie, his wife.

In reference to the rents of the premises, the bill charges that, down to 1845, they were received by the late Benjamin F. Hunt, and since that period by his son, Benjamín F. Hunt, who is made a party defendant, and that the premises are now in possession of John Meyer, who is also made a defendant. Benjamin F. Hunt, the elder, departed this life in 1854, or early in 1855, but no legal representative is a party in this case.

On 16th June, 1856, an order was made by Chancellor Dargan, in this cause, as follows: “On motion of Northrop and Allemong, solicitors for Benjamin Jewell and B. F. Hunt, defendants in this cause, and, after hearing Mr. Campbell, complainant’s solicitor, ordered, that the decrees *pro confesso,*heretofore taken against them, be. set aside, and that they have leave to file their answers to the bill of complaint.”

The bill charged the defendant, Benjamin Jewell, as administrator of the estates, both in Louisiana and South Carolina. The answer filed-June, 1856, denies that he ever administered in Louisiana, or ever received any part of the estate in that country — admits that he administered in South Carolina, and that he was informed by his agents, *315Messrs. Hunt and Shand, that the estate consisted of $950 18, in their hands, besides eleven shares in the Union Insurance Company, (afterwards sold by them for $924,) aud a lot of land and wooden house thereon; that he never received any part of the estate except $140 or $150 from Mr. Shand ; that, “on applying to Col. Hunt for a rendition of the accounts, he was informed that the amount of property was not even sufficient in amount or value, to remunerate him for his professional services to the estate and to the heirs; that respondent, knowing that said services had been very valuable, believed him; that Col. B. F. Hunt kept all he recovered of said estate in South Carolina, in payment of his professional services.”

No evidence was offered to invalidate the material statements of the defendant’s answer, that no funds had ever been received by him. He was as much interested as any other distributee of the estate. The master’s report proceeds on the assumption, well sustained by all the circumstances, that whatever sums were received were retained by Col. Hunt, and that no part of the same came to the hand of the defendant, Benjamin Jewell.

The master’s report is filed 12th June, 1858. The first exception of the defendant, Benjamin Jewell, is because, as administrator, he was not responsible for the rents of real estate thus received. The Court is of opinion, that this exception is well taken. Upon the death of Benjamin Jewell, the elder, the lot on East Bay vested in his heirs-at-law. The plaintiffs were residents of South Carolina — the defendant a resident of Louisiana. In taking charge of the real estate, (if he did so,) Col. Hunt was no agent of the administrator. His principal had no such authority, and could depute none. He had been appointed administrator by the ordinary of Charleston district, and, upon leaving the State and returning to his home, “he appointed Messrs. Hunt & Shand, as his agents in the administration.” He is responsible for the acts of Messrs. Hunt & Shand in the administration of the per*316sonal estate of his intestate, and no farther. The plaintiffs being residents of the State, were more particularly capable of taking care of their own interests in regard to the real estate. It is very probable they were not unmindful of those interests. The plaintiff, Daniel Jewell, was the only one of the heirs of Benj. Jewell, deceased, who, in December, 1834, was served with a copy of the declaration in ejectment, “ as “being in possession of the premises, or claiming title thereto and Col. Hunt, immediately afterwards, in behalf of him and . of the other heirs of Benjamin Jewell, deceased, entered an appearance and filed a plea in the proceedings in the United States Court. Thenceforth, in all the stages of the litigation, he was on record as attorney of the heirs. Col. Hunt was responsible to the defendant, Benjamin Jewell, as he was to the other heirs, for rents received by him ; but Benjamin Jewell is no more responsible to the other heirs than they (and particularly the plaintiffs) were responsible to him for any short-coming on the part of Col. Hunt, their common attorney. The first, fourth and fifth exceptions of this defendant are sustained.

Then, in regard to the personal estate of Benjamin Jewell, deceased, the' Court has not been furnished with a copy of the inventory, (if any were ever made,) nor with any copy of the account said to have been rendered by Messrs. Hunt & Shand, or by Col. Hunt, in behalf of the administrator to the ordinary, 6th April, 1S33. The Court is unable, therefore, to judge whether it consisted entirely of personalty. But on 25th June, 1835, the Union Insurance shares (the only remaining personalty) were sold out, and that closed the receipts on account of the personal estate. Assuming the balance of the account of 1833 to be exclusively of personalty, the whole amount of personalty received by Col. Hunt was about twenty-one hundred and fifty dollars ($2,150). And the last receipts of the defendant, as administrator, (through his agent,) was 25th June, 1835.

The only persons demanding any account from the de*317fendant of the sum thus received by his agent, are the plaintiffs, Juliana Rickenbacker and Daniel Jewell. If Hetty Mitchell, had any claim, her personal representative would alone have a right to prefer it, and none such is before the Court.

The Court concurs, too, with the master, in his construction of the letter of the plaintiff, Juliana Rickenbacker, to her brother, the defendant, and which was produced in evidence on his behalf. It bears date, Orangeburg, April I, 1855, and was manifestly written in reply to a letter of her brother, in reference to proceedings instituted, or about to be instituted, against him. The letter of the plaintiff must speak for itself. She speaks, however, of the agreement under which the suit was undertaken — that the paper was sent for her signature when she was in Alabama — that she was willing to agree to the terms, “ if it did not interfere with you, (the defendant,) Joseph, or any of my brothers,” that “she did not sign the paper sent for her signature, but had the papers drawn, as she thought, by a lawyer at Cedar Bluff,” &c. It is manifest, that she understood the suit to be for the *real estate.*She says, “I have signed an instrument of writing, agreeing, when the property is placed in my hands, to give to Mr. C. one-third of the amount I receive,” and she concluded by saying, “ from what I can learn, Mr. C. has the property, at this time, in possession, and has paid tax for it: if so, why not contend for our right?” In the opinion of the Court, it would do great injustice to the author of this letter, to put any other construction upon it than that adopted by the master, to wit: that it was a disclaimer of any intention to demand any account from the defendant as administrator, or “ to interfere with him,” but to secure her rights in the real estate, of which the solicitor employed by her, was, as she understood, then in possession. But it was due rather to this plaintiff, than important for the defendant, that the Court should have said thus much in regard to this correspondence. The second and sixth exceptions maintain the propositions, *318that, under the circumstances, the defendant was guilty of no default in allowing the proceeds of the personalty to remain in the hands of Col. Hunt, and that the claim of the plaintiffs, instituted more than twenty years after the last receipt, is stale and unjust. In considering these exceptions, it should be borne in mind, that Col. Hunt was not only the agent of the administrator, (himself being a resident of Louisiana,) but he was also his solicitor to maintain his administration. When his right to the administration was sustained in 1834, by the final judgment in the State Court, the controversy in the United States Courts immediately commenced, in which Col. Huut represented the interests of all the parties. It is not necessary to determine, with any precision, the value of Col. Hunt’s services. The preliminary inquiry is, whether the defendant was guilty of any *laches ?*Whether he was bound to do for others what he did not do for himself? Nor is this the precise inquiry. The plaintiff's made no complaint for more than twenty years after the last act of administration. Col. Hunt (alone able to have answered satisfactorily,) was already in his grave when the claim was preferred. The plaintiffs, Daniel Jewell and Mrs. Rickenbacker, with her husband, resided in the same community with him. The defendant was abroad. The Court is of opinion that the disclaimer of Mrs. Rickenbacker to charge her brother, the defendant, with any default, not only does credit to her social affections, but is founded on a just view'- of the principles of this Court. The second and sixth exceptions of the defendant are sustained. This judgment disposes of the remaining exceptions on the part of the defendant, and of all the ex-, ceptions on the part of the plaintiffs but the second, which is in relation to Benj. F. Hunt, Jr,

On this subject, the master concluded, from the evidence, that the rents were received by the agents of Col. Hunt, and were applied to his use, and according to his directions, and that the defendant, Benjamin F. Hunt, Jr., was not chargeable with them. This is the ground of the plaintiffs’ second *319exception to the master’s report. The bill charges, among other things, that, about the year 184’5, Col. Hunt delivered possession of the premises on East Bay to the defendant (his son), and allowed him to claim the same as his own; and that the defendant, “well knowing that he had, and could have no right or title, fraudulently and deceitfully combined,” &c., that the plaintiffs “had applied to the said Benjamin F. Hunt, Jr., to deliver up possession and account,” &c., “but that, under divers pretences and pretexts, he had evaded and refused their reasonable requests.” The bill was filed 4th September, 1855. The answer of Benjamin F. Hunt, Jr., is explicit in the denial that he ever claimed the premises as his own, or did anything but as the agent of his father. Furthermore, a letter was in evidence, from this defendant to the plaintiffs’ solicitor, and produced by him on notice from the defendant’s solicitor. It is dated New York, 18th February, 1854, nearly nineteen months prior to the filing of the bill. From the tone and character of the letter, it would be inferred that he was writing to his own confidential adviser, or person charged with his interests. He says : “flaving arrived here a few days siuce, I address myself again to settling my Charleston affairs. In the first place, I would like to settle the affair of Jewell’s estate definitely. I claim no right to the property, and I do not think there is any matter on record, which can show any title in me. I do not think my father makes any claim to the property; and, as far as I am concerned, I don’t see how I can be connected with it in any way.” He then calls his attention to other matters, in which he was interested, and concludes by saying, “ Schem and Jewell’s business, I beg you would advise me how I can close in the speediest way.” On the subject of the rents, the master incorporates, in his report, the substance of the evidence, which, as he says, is corroborated by the answer of the defendant, all showing that they were appropriated to the purposes of Col. Hunt, and that the defendant derived no benefit from them.

*320Taking .into consideration the previous letter of the defendant, as well as his answer, and the parol evidence, the Court is of opinion that the conclusion of the master, exonerating this defendant, is well sustained. The exception is, therefore, overruled; and, as to Benjamin F. Hunt, styled in the pleadings Benjamin F. Hunt, Jr., it is ordered and decreed that the bill be dismissed.

It is further ordered, that the master’s report, of June, 1858, be filed ; and that the plaintiffs have leave, if they shall be so advised, to make the personal representative of Benjamin F. Hunt, deceased, a party in this cause. It is finally ordered, that the master report his proceedings under the orders or sale heretofore made, and also a statement of the rents of the premises, which have been paid into his hands; and that he also report upon the respective rights of the parties claiming to be interested in the fund, with leave to report any special matter.

The complainants, renewing their exceptions taken at the circuit hearing, appealed from the decree, as follows:

1. Because B. F. Hunt, Jr., is liable to account, in the usual form, for the rents received by himself or his agents, while he intruded upon the premises, and held the same as his own, without color of title.

2. The defendant, Benjamin Jewell, the younger, is liable to account to the complainants for the estate, real and personal, of Benjamin Jewell, the elder, received by himself, or by his authorized agents and attornies.

3. The allowance to Benjamin Jewell, of the alleged claim of Col. Hunt, is irregular, and upon insufficient proof as to its amount. It is especially irregular to allow the large sum of f 1,000, “for services and advice as to suit in New Orleans,” no proof of such services or advice, or even that there ever was such a suit, being offered.

4. If Benjamin Jewell is not held liable for the rents, then he cannot be allowed to apply the personal estate to pay for *321litigation on account of the real estate; and there should be a separate account of the real estate, wherein it should be credited with rents, and charged with its own expenses of litigation, &c.

The defendant, A. B. Mitchell, appealed upon the same grounds as above.

*Campbell, Dingle,*for appellants.

*Northrop,*contra.

The opinion of the Court was delivered by

Wardlaw, J.

We are of opinion that the representative of the late Benjamin F. Hunt should be made a party defendant in this cause. As agent of Benjamin Jewell, he is involved in all the matters of controversy, and especially as to the amount of compensation to which he is entitled.

As the case must be remanded to the circuit, and new inquiry and report be made by the master, we consider it prudent to refrain from amplification of the facts now before us, which probably may be materially varied by further investigation. Standing as the matter now does, all the grounds of appeal seem to have some merit. We do not perceive on what principle B. F. Hunt, the younger, can be exempted from liability for rents actually received by himself and agents, while he was in possession of the premises, claiming ownership. He now disavows title, but from April, 1845, to June, 1854, it appears by the reports of the master that he received the reuts and returned the property to the tax collector as his own. It can make no difference as to. his liability, that he appropriated the sums received by him to purposes of benevolence and filial duty. It may be that he was then an obedient and facile sou of a dominant father, but he was of mature age, and practising law in partnership with his father, the agent of the administrator. It would render the administration of equity utterly indefinite and oscillating, if liability were considered dependent on the *322easiness or kindness of disposition of the person pursued. The statute of limitations and the lapse of time would not avail this defendant, if pleaded, but it is enough to say that he makes no such defence.

We suppose, too, that the administrator of Benjamin Jewell is liable to account for any rent of the real estate of his intestate, received by himself and his agents. That he undertook the management of this real estate, and constituted Messrs. Hunt & Shand, as his attorneys in fact, for this purpose, are charged sufficiently in the bill, but with no great precision, and are substantially admitted in the answer. The primary duties of an administrator relate to the goods, chattels and credits of his intestate, and Ibis sureties in the administration bond do not undertake beyond the faithful administration of the personalty, but where he receives rents his personal liability is indisputable. The statute of 12 Geo. II, c. 5, 2 Stat., 570, making real estates liable equally with personalty, for debts, has produced a very common interference of administrators with the renting of land ; and it would be mischievous to hold that where they do interfere, they can take the rents to themselves, without responsibility.

Again, it seems to us that the large sum allowed to the administrator for the professional services of B. F. Hunt, the ■elder, proceeds on insufficient proof, and to a great extent is conjectural. It is manifest that he deserved large and liberal ■compensation, but the facts and principles on which his ■compensation was ascertained should be presented to the Court.

It is ordered and decreed, that the circuit decree in this •case be vacated and set aside, and that the cause be remanded to the circuit, with direction to the plain lifts to make the representative of B. F. Hunt, the elder, a party ■defendant, within three months, on pain of having their bill .dismissed.

O’Neall, C. J., and Johnston, J., concurred.

*Decree set aside.*