#### John Frierson and Wife *vs.*John F. Graham, Adm’r. Same *vs.*John F. Graham, Ex’r.

An administrator who kept on hand the share of a deceased distributee waiting for the appointment of an administrator, and who notified those interested in the share that he was ready to pay it over, and who tendered it to the administrator as soon as he was appointed, *held*excused from the payment of interest.

BEFORE DUNKIN, OH., AT WILLIAMSBURG, MARCH, 1854.

Dunkin, Ch. A. W. J. Graham died intestate about the year 1847. His distributees were his mother Susannah Graham, (since deceased) and his nine brothers and sisters. The defendant became his administrator. Shortly afterwards, Susannah Graham died, having previously made her will of which the defendant was appointed executor, who after her decease proved the will and qualified thereon. It appears that early in the year 1850, the defendant had closed both estates — had ascertained the amount due to the parties severally entitled, and he settled with all except Mary T. Frierson (who had removed to the West, but whom he has since paid,) and Janet M. Cockfield, the wife of Washington Cockfield, who had survived her brother, A. W. J. Graham, and his mother, Susannah Graham, but had died before the estates were ready for settlement. The defendant, in his answer, states, that since 19th March, 1850, he had been ready to pay over the share of Janet M. Cockfield, deceased, but that being advised that he could only safely pay it to her administrator duly appointed, he had applied to her husband, Washington Cockfield, requesting him to administer, and receive the amount, but that he had declined to do so. It appears to the Court that this statement is substantially confirmed by the *96evidence of N. G. Rich, Esq., the plaintiff’s solicitor, which is incorporated in the Commissioner’s report. Mr. Rich applied to the defendant before the bills were filed, and the application, he says, was on the behalf of Washington Cockfield. It seems he desired the defendant to pay over to his client, one-third of his deceased wife’s share, and retain the surplus to pay to the guardian of her children when appointed. This the defendant' declined to do, and, as he stated, upon the advice of Mr. Coleman. These bills were then filed on behalf of the children of Janet M. Cockfield, deceased, against the defendant, requiring an account of each estate; William R. Nelson, Ordinary of the district, was made a party, but he had never taken charge of the estate, and so stated.

At the hearing in 1852, it -tfas insisted that the bills could be only sustained by the legal representatives of Janet M. Cockfield, deceased. The Court was of opinion that an administration should be made, and that two bills were unnecessary. The causes were ordered to be consolidated, and leave was given to amend the pleading by making the administrator of Janet M. Cockfield a party. Josiah Cockfield then took out letters of administration on the estate of Janet M. Cockfield, deceased, and on that day the defendant made a tender to him of the amount due to his intestate. He replied that he had a lawyer, and declined to act. The causes having been consolidated, the Commissioner took an account of the defendant’s transactions as administrator of A. W. J. Graham, deceased, and as executor of Susannah Graham, deceased, and the cause was heard on his report filed 2nd March, 1854, and exceptions thereto. The first exception on the part of the plaintiffs was withdrawn, as the Solicitor stated he had waived his objection before the Commissioner. The second exception was proved by the evidencejjto be wholly untenable and is overruled, The exceptions of the defendant relate entirely to the charge of interest since January, 1850. The share of Janet M. Cock-field, deceased, in the two estates, was at that time, according *97to the Commissioner’s statement, between five and six hundred dollars. The defendant settled with all the other parties as before mentioned, during that year, and he notified Washington Cockfield (the person entitled to administer on his wife’s estate,) of his readiness and desire to settle for her share. So far as such matter is susceptible of proof, the defendant has made a satisfactory showing that he kept the funds in hand to meet the demands which might have been made on him at any moment, and that it would have been, in fact, impracticable to put the money at interest under the circumstances.

Mr. Justice Williams says, *“*There are two grounds on which an executor or administrator may be charged with interest. 1st. That he has been guilty of negligence in omitting to lay out the money for the benefit of the estate. 2d. That he has himself made use of the money to his own profit and advantage, or has committed some other *misfeasance.”*2 Williams’ Ex’rs, 1567; and in an American note, the case of *Merrielc’s JEstate,*1 Ash, 805, is cited, where it was held that *“*Trustees of any description were chargeable with interest who neglected to apprize those interested in the fund of the amount due to them, and to offer payment in a reasonable time.” Judged by either of these principles, the Court cannot perceive from the evidence that the defendant is chargeable with interest. So soon as the estates were ready for settlement the parties interested were all notified by him, and in 1850 he settled with all except as above stated. He very properly refused to pay the share of Janet M. Cockfield until her estate was represented. When bills were filed against him in 1851, he stated in his answers the amount due, which he had always been ready, and was then ready and desirous to pay in any manner the Court might direct. So soon as an administration was made in'February, 1852, he forthwith waited upon-Josiah Cockfield, who had that day received letters of administration, and tendered him in money the amount due. The accounts of the defendant have been fully verified by proper *98vouchers, and have been approved by the Commissioner. No evidence was offered, indeed no intimation was made, that the defendant had made any interest on the fund. On the contrary, the evidence leads to an opposite conclusion. Under these circumstances the Court is of opinion that the exceptions of the defendant are ^well taken. It would discourage prudent and discreet persons from the acceptance of such trusts, if they are subjected to loss when they have done all in their power to discharge their duty both faithfully and promptly. It is ordered and decreed that the exceptions of the defendant be sustained, and that the .Commissioner re-state the account accordingly. The question of costs was submitted. The narrative of the transaction shows clearly that no proceedings in this Court were necessary. The administrator of Janet M. Cockfield was alone entitled, and can alone be recognized. To him the defendant was always more than ready to account and pay. But especially was it unnecessary to harass the defendant with two suits in Chancery for the settlement of these estates. The general rule, however, in cases of this character has been more than once stated. “If an executor refuses to account, or his account is falsified, he is charged with costs, or they will be disallowed to him ; but if he has kept an account regularly, and furnished it correctly, although a balance may be against him, he may be entitled to costs out of the fund. *Flanagan*vs. *Noland, 12*Eng. Ch. Rep. 47. See also 1 Rep. Temp. Hardwicke, 28.” In any view that may be taken, the Court is of opinion that the costs are properly chargeable upon the fund, and it is so ordered and decreed.

The complainant appealed oh the ground:

That the decree sustains the exception of the defendant, John E. Graham, on the question of interest, on the fund due the complainant.

*Rich, Miller,*for appellant.

*Dargan, Porter,*contra.

*99The opinion of the Court was delivered by

WaRDLAw, Ch.

In this case (the two bills mentioned in the caption were consolidated into one,) we approve of the Chancellor’s disallowance of interest for a time against the representative of the estates: which is the only point of appeal. Under the special circumstances of the case, the conclusion of the chancellor is legitimate, and well justified by his reasoning; and we add a word only to guard against the misapprehension that the decree contains the doctrine that interest is not payable by a trustee where there is no person authorized to receive the principal for the beneficiary. The case of *Davis*vs. Wright, 2 Hill, 560, is frequently quoted as asserting this principle, by those who overlook the distinction between a debt of one to another without disability of either, and a liability of a trustee to beneficiaries who may not be respectively *sui juris.*It would be palpably unjust to infants, married women, lunatics, and others incapable of acting for themselves, to lay down as general doctrine, that they were not entitled to interest wherever their trustees could not pay over the principal.

It is ordered and decreed that the appeal be dismissed, and that the Circuit decree be affirmed.

Johnston, Dunein, and Dabgan, CC., concurred.

*Decree*affirmed.