#### *W. D. Lewis*vs. *D. B. Price and*wife, *and others.*

Construction given to a marriage settlement; husband *held*bound, by the terms thereof, to support out of the settled property, the wife’s children by a previous marriage, in exoneration of their own property.

An administration granted to husband and wife jointly, is the administration of the husband alone; the surety on the bond gives credit to him exclusively.

The husband’s marital rights will not attach upon the wife’s distributive share, before it is severed from the bulk of the estate.

*173In ordering a settlement of the wife’s equity, the Court will conform to a previous settlement, agreed on by the parties, though it may have proved ineffectual.

The principles upon which the profits of a planting establishment are to be accounted for by an administrator, stated.

The accounts of an administrator directed, under very peculiar circumstances, to be taken with great liberality towards him.

An administrator, being also, as distributee, a tenant in common of the land, allowed credit, not for the cost of improvements put by him on the land, but for the value they imparted to the premises.

Where an administrator’s return to the ordinary is seventeen years old, items vouched before the ordinary and passed by him as charges against the estate, may be regarded as proved, *prima facie;*of items not vouched, some evidence should be given, but that degree of evidence should be sufficient, which may be expected after such a lapse of time.(A)

*Before*Dunkin, Oh., *at*Darlington, February, 1850.

This case came before the Court on exceptions to the follow» ing:

COMMISSIONER’S REPORT.

The Commissioner, to whom it was referred to take testimony and state the accounts of the several administrators of Jesse *174Lewis, deceased, begs leave respectfully to report: Jesse Lewis died on 30th of October, 1832. On the 7th November, 1832, administration of his estate was granted to his widow, Martha Lewis, and one Wm. T. Mason; but it does not appear, and indeed is not pretended, that the latter ever participated in the management of the estate, the administration of which was assumed and conducted solely by Mrs. Lewis. On the 9th of January, 1834, Mrs. Lewis intermarried with the defendant, Daniel B. Price, who, on the 15th February, 1834, in conjunction with his wife, entered into a new bond with John N. Williams and John D. Price, as sureties, and received formal letters of administration of Jesse Lewis’s estate. There is no evidence of a formal revocation of the first grant; and it is as well to mention here, that on the first reference held by me, on proof being made of the grant of administration to Mrs. Lewis and to Mason, the solicitor for the defendants, Mr. Haynsworth, objected to proceeding further, on the ground that Mason should be made a party to the bill. He had been gone for many years beyond the jurisdiction of the Court, and, as I now recollect the testimony, into parts unknown, and I had no hesitation in overruling the objection, holding Martha Lewis, under the circumstances, liable to account. The administration of D. B. Price and wife continued until the 24th of November, 1844, on which day, they having failed to give new security, on the requisition of the ordinary, he revoked their letters. E. B. Brunson, the ordinary, then took the administration as of a derelict estate, until the 2d July, 1845, when it was granted to Wilson C. Bruce, who has exercised it until the present time.

Of the administration of Martha Lewis, and of D. B. Price and wife, no prepared statements of accounts have been offered to me by the parties; indeed, no memorandums have been kept by them with a view to it. From the confused state of the documentary testimony which has been offered to me, and the multiplicity of the points testified to by the witnesses, I may not be able to avoid serious errors and inadvertencies; and though the reference was kept open and protracted for a great length of time, *175and ample opportunity of inquiry afforded, I am by no means persuaded that my minutes of testimony will afford to the Court the means of doing exact justice between the parties.

I proceed briefly to make such particular remarks as may be necessary to elucidate the details of Mrs. Lewis’s accounts.

The estate of Jesse Lewis, deceased, which came into her hands to be administered, consisted of four negroes, to-wit: Doll, Margery, Mary and Louisa, which has since increased by the birth of three children to Louisa; choses in action, consisting of notes to the amount of one thousand and forty-two 11-100 dollars, of which twenty-five 82-100 dollars was considered by the appraisers as doubtful;' and accounts against sundry persons, amounting to four hundred and twenty-nine dollars ; goods and chattels, household and plantation furniture, stock, &c., amounting, appraisement, seven hundred and two 37-100 dollars, inclusive of corn and fodder on the plantation, valued at one hundred and sixty-eight dollars.

During the year 1833, immediately succeeding her husband’s death, Mrs. Lewis possessed herself of the real estate, being the house and lot at Society Hill, and the plantation, which latter she used and cultivated with the slaves, retaining the whole estate together, and having no sale of any part thereof. In the Fall of that year, she made, before the ordinary, the annual return required by law ; but, as it was a very imperfect one, and in this Court is not conclusive, either .for or against her, I have thought it best not to embarrass my statement by assuming it as a basis, though I am sensible that to reject it is greatly to her disadvantage, as she has not b.een able to establish before me payments which appear to have been satisfactorily vouched before the ordinary. After the best consideration of the whole matter of which I was capable, I came to the conclusion that I should approach nearest the justice and law of the case, by charging Mrs. Lewis with reasonable rent of the real estate, and hire of the negroes, and allowing her compensation for the support of the children during the year 1833, and rejecting all payments, except such as clearly appeared to be for the debts of the *176intestate. The propriety of this will be the more manifest, when it is stated that she is charged on the appraise-bill with the whole stock of provisions on the estate at the time of the administration, and that many of the accounts passed before the ordinary, in her return on the 30th December, 1833, were for plantation and family supplies, purchased during the current year. I have given to Mrs. Lewis a credit of certain notes and accounts, which satisfactorily appears could never have been realized. Though this would more properly have been done in connection with the testimony on the account of D. B. Price, I have preferred to credit them on Mrs. Lewis’s account, as it does not aifect the result, because I think she should be charged with interest on the amount of schedules, to the extent that they were good, from the 1st of January, 1834. It will be seen, then, that on the 1st of January, 1834, Mrs. Lewis, after being allowed all proper credits, stands charged with a balance on notes and accounts, amounting to twelve hundred and fifty-eight 19-100 dollars; a balance on hire of negroes and rent of real estate amounting to thirty dollars, and the whole amount of the appraisement, being seven hundred and two 37-100 dollars. On the intermarriage of Mrs. Lewis with D. B. Price, on the 9th January, 1834, these liabilities attached to her husband, and on his formal assumption of the administration, on the 15th February ensuing, they became, by the operation of law, funds in his hands. I proceed now to speak more particularly of the administration of D. B. Price: If on being appointed administrator, he had proceeded, within reasonable time, to sell the articles scheduled in the bill of ap-praisements, he might, by the production of the sale-bill, have discharged himself of the liability on the face of the appraise-bill. But it can hardly be pretended that the sale of the miserable remnant, ten years afterwards, should be received to diminish in any way his liability. It is true there was an appraisement soon after his administration, but if liable on this, primarily, he is also liable as the husband of the first administratrix, for the difference between the two appraisements. I have therefore charged him with the whole amount of the first appraisement; *177but as he had a right to a favorable time to make sale, I have not charged interest until the first of January, 1835. Besides these items, the subjects of annual charge against him are the negroes, the house and lot at Society Hill, and the plantation. As to the negroes, there is no great diversity in the testimony. I endeavored, by attentive consideration of all the evidence, to ascertain a fair average annual value of their hire. The result of this inquiry is, that the woman Margery was worth sixty-five dollars per annum; Mary forty dollars per annum; Louisa forty dollars per annum; the old woman Doll not more than the expenses of maintenance. In this estimate I have considered the facts in evidence, that the woman Louisa was, during the time, encumbered with the care of young children and the disabilities incident to child-bearing. The average annual hire of the negroes, then, would be one hundred and forty-five dollars. The house and lot at Society Hill was rented during the whole period of Price’s administration, by the same individual, and from his testimony I have ascertained the average annual rent of the premises at forty-five dollars, and in this estimate I have made some, though a very small allowance, for certain alleged repairs, put on the house by D. B. Price, which, however, were very imperfectly substantiated. The fact of work having been done, there is no doubt of, but the proof as to the details and walue was inconclusive.

The plantation was cultivated a portion of the time by D. B. Price, and some years was rented out.

The testimony satisfied me, that fifty dollars per annum was a fair average rent of the land for agricultural use, and for the whole premises, with the enjoyment of the domicile, which was erected by Mrs. Price, after her first husband’s death, seventy dollars. D. B. Price claimed to be allowed on the reference a credit for moneys expended in erecting and improving the buildings on the plantation. But as the testimony induced me to think that at this period they do not enhance the value of the plantation, I have rejected the account. I have, therefore, thought it fair to charge him only with what the witnesses testified would *178be tbe value of the plantation -without the improvements.

I come now to that feature in the case which has most embarrassed me, the previous adjudication of. which, seems to me indispensable'to an exact stating of the accounts and ascertainment of the liabilities and rights of the respective parties.

Before the marriage of D. B. Price and Mrs. Martha Lewis, a deed of marriage settlement was executed by him, by which the interest of Mrs. Lewis in the estate of her then late husband, was conveyed to a trustee, John D. Price, the father of D. B. Price, in trust, that he should permit D. B. Price to use and enjoy the said'property or interest of Martha Lewis, conveyed for the purpose of maintenance and education of her children, by her deceased husband, being four in number ; and D. B. Price, in consideration thereof, covenanted that he would support and educate the children without charge. It is now contended by D. B. Price and by J. D. Price, the trustee, that their understanding of the deed, when they executed it, was, that it conveyed the whole estate of Jesse Lewis, and that it was in consideration of the use and enjoyment of the whole, that D. B. Price covenanted to maintain and educate the children without further charge. The testimony exhibited is wholly insufficient, even if the inquiry beyond the clear expression of the deed were permitted, to show that the parties entertained at the time such a construction.

There are some obvious considerations which would seem to render it scarcely credible, that any man who regarded his obligations should have assumed such an undertaking; but I do not see how he is to avoid it, unless it should appear to the Court, that the children of Mrs. Lewis, not being parties to the contract, have no right to insist on its fulfilment, and it should interpose its authority to reform the contract, and save the mother from the destitution which the nurture of the children will cost her. But it is in reference to the liabilities of the sureties on D. B. Price’s administration bond, that this, marriage contract is first to be considered. There are two defects in the registration and exe-on of the deed.

*1791st. The affidavit to entitle its registration is as follows :

STATE OF SOUTH CAROLINA, ?

DARLINGTON DISTRICT. $

Personally appeared before me Martin Dewitt, one of the Justices of the Peace, James E. Brown, and made oath, that he did see Daniel B. Price sign and seal the above instrument of writing, for the use, purpose herein mentioned, and further he did see Abel Gandy subscribe with himself thereto. Sworn to before me this 1st day of April, 1834.

[Signed,]

JAS. E. BROWN.

Martin Dewitt, J. P.

2d. The schedule of property settled, required by law to be attached to the deed, is not signed by the parties. J. D. Price, one of the sureties, is a party to the deed, and can claim no benefit from the informalities in its execution or registration. But John N. Williams, the other surety, in my opinion has not had the constructive notice which is presumed from a proper registration, nor is there any evidence that he ever knew of the marriage settlement previous to the institution of these proceedings. It seems to me then, very clear, that the Court will protect him not only by subrogating Mrs. Price’s interest in the personalty of the estate, to the extinguishment of D. B. Price’s liability as administrator, but will also require the accounts of D. B. Price to be so stated with reference to J. N. Williams’s liability, as that he shall have every credit to which he would have been, entitled, if the marriage settlement had not taken place ; under this impression, I have allowed D. B. Price, what seems to me a very reasonable charge, for the annual support of the children; and as D. B. Price himself is utterly insolvent, as he always has been ; and, as I am satisfied that the other surety on his bond, John D. Price, is so nearly insolvent, that his liability is not particularly looked to by any of the parties, I have thought it necessary to state the account of D. B. Price, only with reference to what I considered the liability and the rights of John D. Williams. In establishing the annual allowance for board, clothing, tuition and medical attendance of Jesse Lewis’ children, at the *180sum of one hundred and sixty dollars, I have fully considered all the facts which appear in the reported testimony.

The accounts of D. B. Price, stated in reference to these views, exhibit a balance against Price of four thousand one hundred and sixty-nine 68-100 dollars ; of this amount, the share of Price and wife is thirteen hundred and eighty-nine 88-100 dollars, leaving a balance of two thousand seven hundred and seventy-nine 88-100 dollars, due to the children of Jesse Lewis, for which John N. Williams is liable. I recommend that the share of Mrs. Price, in the proceeds of sale of negroes of the estate of Jesse Lewis, lately made by order of the Court, be applied to said Williams’s liability, also their share of the portion of J. F. Lewis, a deceased child.

The account of D. B. Price, stated with reference to his own liability, differs from the above in the exclusion of any allowance for the maintenance of the children of Jesse Lewis, exhibiting thereby a considerable annual balance against him for rent of land, and of house and lot at Society Hill, and hire of negroes, amounting in all, with interest on each balance, to the 1st January, 1850, to five thousand nine hundred and thirteen 60-100 dollars. For this, John D. Price is liable as the surety of D. B. Price, except for the sum of ten hundred and seventy-one 73-100 dollars, accruing from the rent of the plantation and house and lot. Of the sum above stated of five thousand nine hundred and thirteen 60-100 dollars, as due by D. B. Price, the sum of six hundred and sixty-three 65-100 dollars, is due to John D. Price as trustee.

The Commissioner begs the indulgent consideration of the Court for the imperfections of this report. The great anxiety of the parties to bring the cause to a final hearing, has determined him to present it in a very immature condition, with the hope that it would bring before the Court, all the litigated points of the case, and that under the orders of the Court he may be able so to rectify it, as to do justice between the parties.

All of which is respectfully submitted.

THOS. C. EYANS, Commissioner.

*181MARRIAGE SETTLEMENT;

STATE OP SOUTH CAROLINA, ?

DARLINGTON DISTRICT. *)*

This Indenture of three parts, made this 9 th day of January, in the year of our Lord one thousand eight hundred and thirty-four, and in the fifty-eighth year of the Sovereignty and Independence of the United States of America, between D. B. Price of the first part, Martha Lewis of the second part, and John D. Price of the third part, witnesseth, that whereas a marriage is intended to be shortly had and solemnized, by and between the said D. B. Price and Martha Lewis, and whereas the said Martha, by her marriage with her late husband, Jesse Lewis, now deceased, has become the mother of the following four children, viz. William David Lewis, Rachel Amelia Lewis, John Fountain Lewis and Elizabeth Catharine Lewis, all whom are now living; and whereas the said Martha is entitled to an undivided third part of the real and personal estate and choses in action, of which her said husband, Jesse Lewis, at the time of his death, was seized and possessed, and to which he was then entitled, as well an undivided third part of the increase, rents and profits thereof, since that time. And whereas, it hath been agreed, that the said D. B. Price, after the said intended marriage had, should receive and enjoy the said *property belonging to the said*Martha, during the said marriage, *he appropriating so much thereof, as may be necesary to the purpose of boarding, clothing and tuition of the said children of the said Martha, with the physician’s bills and other expenses, and making no charge against them for said purposes.*Now this Indenture witnesseth, that in pursuance of the before recited agreement, and in consideration of the sum of one dollar by the said J. D. Price, trustee, to the said Martha paid, the receipt of which is hereby acknowledged, the said Martha, by and with the consent and agreement of the said D. B. Price, testified by his being made a party to and signing and delivering these presents, hath granted, bargained, sold and transferred, and by these presents doth grant, bargain, sell and transfer unto *182the said J. D. Price, trustee, his heirs, executors and administrators, all and singular her right, title and interest, of, in and to her undivided third part of the real and personal estate and choses in action, of which the said Jesse Lewis at the time of his death was seized, possessed or entitled, and of, in and to the rents, increase, interests and profits thereof, since that time ; consisting of one tract of land situated in the District and State aforesaid, on the north side of Black Creek, hounded on S. E. and N. E. by lands belonging to the estate of Adam Marshall, S. E. by William Lewis’s land, and N. W. by John F. Wilson’s land. One other tract of land in the district and State aforesaid, bounded by lands owned in 1822, N. by David Smoot, E.byS. Adams, S. by Lewis Hill, and W. by John Lide ; one other tract of land in the District and State aforesaid, east side of Horse Branch, bounded by lands owned in 1826, N. by William Lewis and Thomas Smith, E. by S. Adams, and S. and W. by said Horse Branch ; and one tract of land of one acre on Society Hill, and bounded in 1829 N. by M. Sparks’s land, W. by Camden road, S. by a street, and E. lands late of the estate of George Wilds; also negro slaves Western, Mary and Louisa, with other articles of personal property described in the appraisement of the estate of the said Jesse Lewis, filed in the Ordinary’s office of the said District, a copy of which is hereunto annexed, with one-third undivided part of the notes and accounts due and owing to the said estate ; to have and to hold the same in trust nevertheless, and for such purposes, and under such provisions and agreements as are hereinafter mentioned, that is to say, in trust for the said Martha and her assigns, until the solemnization of the said intended marriage, (paying from time to time one-third part of the taxes of the said real estate, to be by him collected out of the rents and profits thereof,) then in trust, that the said J. D. Price, trustee, his executors and administrators,' (still paying the said third part of the taxes as aforesaid,) shall suffer the said D. B. Price to use, have, receive, occupy and enjoy all the interest *and profits of the said property,*(allowing the property itself to remain undivided,) so long as the said marriage shall continue *183and the said D. B. Price *shall maintain and educate the said children or the survivor*or survivors of them, without making any charge against them or either of them; and shall also permit the said D. B. Price *to use the principal of the said*property, if the same shall be deemed necessary by the said trustee, his heirs, executors or administrators, for the purposes of *Maintain*and education, as above mentioned, provided the use, occupation, enjoyment, &c. of the said property shall not continue unto the said D. B. Price after the termination of the said marriage, longer than the time at which the eldest survivor of the said children shall arrive at the age of twenty-one years or marry, upon the happening of which event, or either of them, after the termination of the said marriage by the death of the said Martha, the said trustee, his heirs, executors or administrator's to hold the said property, or the balance thereof, which shall remain unexpended, to be equally divided and delivered to the survivor or survivors of the said children; but if the ■ said Martha shall survive the said D. B. Price, then and in that case the said J. D. Price, trustee, his executors or administrators, shall re-convey to the said Martha, her heirs or assigns, all and singular the undivided third part of the property hereinbefore set forth, or so much thereof as shall remain unexpended, according to the true intent and meaning of these presents. In testimony whereof, we have interchangeably set our hands and seals, the day and year above written.

Signed, sealed and delivered *)*in presence of $

JAMES G. BROWN,

ABEL GANDY.

DANIEL B. PRICE, [l.s.] • MARTHA LEWIS, [l.s.]

JOHN D. PRICE, [l.s.]

STATE OF SOUTH *CAROLINA,)*

DARLINGTON DISTRICT. $

Personally appeared before me Martin Dewitt, Justice of the Peace, James G. Brown, and made oath that he did see Daniel B. Price sign and seal the above instrument of writing, for the *184use and purposes herein mentioned, and further he did see Abel Gandy subscribe with himself thereto.

Sworn to before me this 1st day of April, 1834.

MARTIN DEWITT, J. P.

JAMES G. BROWN.

DECREE.

Dunkin', Oh. Jesse Lewis died intestate, about October, 1832. He left a widow and four children, the youngest of whom was an infant of very tender years. The widow administered on the estate. Subsequently, to wit: — 9th January, 1834 — she intermarried with the defendant, D. B. Price. On the 15th February, 1834, letters of administration were granted to Price and wife, they having entered ■ into bond to the ordinary, with John D. Price, (father of D. B. Price) and John N. Williams, as sureties. On the 24th November, 1844, these letters were revoked, in consequence of the failure of Price to give new security as required by the ordinary. Wilson C. Brace is at present the administrator. This bill is filed by one of the children of Jesse Lewis, deceased, for an account of his father’s estate.

It is alleged that D. B. Price is insolvent, and that John D. Price, one oí the sureties, is nearly so, and the scope and object of the bill is, to fix the liability on John N. Williams, the other surety.

The case was heard on exceptions to the Commissioner’s report, and the Court is very much aided by the careful investigation and. lucid statement which is there exhibited. If there be error in the conclusions of the officer, it arises from the want of a previous adjudication of the principles on which the account should be adjusted.

At the time of Jesse Lewis’s death, he had a house at Society Hill, and a farm at some distance from it. According to the inventory and appraisement, made 7th November, 1832, there were two negroes, Mary and Louisa, at Society Hill, and furniture, &c. valued at two hundred and twenty.seven dollars, and at the plantation, two negroes, Doll and Margery, and crop of *185corn, stock, &c. valued at three hundred and seventy-five dollars — making the personalty, exclusive of the negroes, worth six hundred and two dollars. In addition to this, there were more than one hundred small notes and open accounts, from thirty cents and upwards, but amounting, altogether, to fourteen hundred and seventy dollars, or thereabouts.

In 1833, the administratrix made a return to the ordinary, which, as the Commissioner reports, “appears to have been satisfactorily vouched to the ordinary,” and, according to which, she had paid debts of the intestate to the amount of four hundred and eighty-six dollars ninety-eight cents. Supposing these to have been paid from the debts collected, and that all the notes and accounts were good, and that she was chargeable with them, there was a balance due by her, January, 1834, of nine hundred and eighty-three dollars.

At this time, D. B. Price became administrator, and continued in possession until 1844. At that time he transferred to his successor all the negroes, with their increase, and the furniture, &c. in the condition it then was. One of the children of Jesse Lewis died in 1836. The other three, so far as the Court understands from the evidence, were decently brought up by the defendant, in relation to nurture, clothing and education.

When it is borne in mind that neither the mother nor the stepfather are hound by law to maintain the children of a former marriage, it would seem not very difficult in an ordinary case to adjust the extent of the liability of the surety on Price’s bond, to the children of the intestate.

Supposing the four negroes to have been hired out, the Commissioner, on satisfactory testimony, has estimated the annual hire at one hundred and forty-five dollars, the rent of the house at Society Hill at forty five dollars, and the rent of the plantation at fifty dollars — making the entire average income for the ten years, annually, two hundred and four dollars. The Commissioner fixes one hundred and sixty dollars *“*as a very reasonable allowance, annually, for the board, clothing, tuition and medical attendance of Jesse Lewis’s children.” But, in addition *186to the above rent and hire, if the administrator be charged with the annual interest on all the debts, as well as the interest on the appraised value of the furniture and other personalty, the whole annual income would he about three hundred and twenty dollars, of which the annual share of the children would he two hundred and fourteen dollars, leaving them an annual surplus of fifty-four dollars. But, as has been said, if it were an ordinary case and a stranger had been the administrator for ten years, and then had surrendered his trust, if he had, at that time, turned over to the children their patrimony undiminished in capital by the expenses of their maintenance and education, it would exhibit a fidelity, frugality and success which would he worthy of all commendation. On that principle, and charging the administrator with the full amount of the appraisement, as well as with every debt, great and small, he should, in 1.844, have delivered to the children their negroes, with their increase, and have paid them about one thousand dollars in money. The severest judgment could have exacted no more from him. Assuming, as he .did, the duties both of guardian and administrator, he was hound to attend to the decent support of *the*children, and to do so, would fully consume any interest he could make on their share of the property.

At the expiration of his stewardship, delivering over to the children their two-thirds, and to the widow one-third, he would have accounted faithfully. It is difficult to conceive, in such case, on what principle the children could ask more. The law requires fidelity and diligence in every one assuming a fiduciary relation, whether it be guardian, administrator or other trustee, and this must he exercised according to the circumstances of the case — and no two cases are likely to present the same features.

The interests of minors and other *cestui que trusts*must be protected, but at the same time, good and prudent men must not he discouraged from acting in such capacity. The Court had occasion to consider this subject in the recent case of *Pye*vs. *Carr,*(2 Strob. Eq. 105,) and will not repeat what is there said. *187The defendant, D. B. Price, though administrator, was not a stranger. He had married the widow in January, 1834. She, with her four children, were living at the place in the country. “The house was a log house, old and leaky. It was necessary to build a new house for the comfort of the family.” (Brown’s evidence.) “ A new house, not fine but plain, ordinary,” was built, at an expense of two hundred and twenty-five dollars.

There were four negroes : Doll was old, and not worth more than the expense of keeping her; the successor of Price paid fifteen dollars a year for keeping her. Mary was kept about the house, and so was Louisa, except one or two years; she was a breeding woman. Margery, the remaining negro, was hired out at sixty dollars, and the house at Society Hill was rented out at about forty-five dollars per annum. The furniture about the house in which they lived, seems to have been of a plain character. In this way, the family lived together for seven years out of the ten during which Price was administrator. After that time the place was rented out. As has been stated, when his administration was revoked, in 1844, he gave up the four negroes, now become six, and he gave up the furniture, cattle,, plantation, tools, <fcc. That for which he is properly accountable, as administrator, in reference to the rights of the children, is for the judicious and faithful discharge of his trust in the situation in which he was placed. It is not suggested that he was wanting in any thing towards them personally. They were well dressed and well provided, and received such education as seems to be customary. If there were nothing more in the case, the Court would think, on the testimony, that justice would have been done, if, in 1844, the children of Jesse Lewis, had received their share of the lands and negroes, and their proportion of nine hundred and- eighty-three dollars, leaving to the defendants, Price and wife, the residue of the land, negroes and cash. And it may be as well here to remark, that in ascertaining this cash balance, due by Mrs. Lewis, January, 1844, the Court has given her the benefit of the return made to the ordinary 30th December, 1833. In *Wright*vs. *Wright,*(2 McC. *188Ch, 197,) it is said, that in passing his accounts with the ordinary, the executor or administrator should produce his vouchers, and that after a long lapse of time it is not to be presumed that the ordinary suffered the account to pass without satisfactory evidence that it was correct. “ Executors are not less liable to loss of papers by time and accident than other persons; the settlement with the ordinary is intended as a security for the executor, as well as for the distributees.” “The regularity of the accounts, the death of witnesses, loss of vouchers, and the lapse of time, must all be taken into consideration.” In that case, a lapse of sixteen years was held to be a “ *complete*protection” to the executor.

The Commissioner, in reluctantly declining to adopt the return of 1833, says he is “sensible that to reject it is *greatly to*her, (Mrs. Lewis’s) disadvantage, as she has not been able to establish before me payments which appear to have been satisfactorily vouched before the ordinary.”

This is a bill to subject the surety to liability, and there are circumstances in this case which seem to entitle the surety, in a peculiar manner, to the protection of the account passed with the ordinary in 1833.

The Court has said that in an ordinary case, justice would have been done to the children, if the defendant had, in 1844, transferred or surrendered to them their share of the capital of their father’s estate. But it remains to be inquired what law the parties have made for themselves — how far what would seem to be abstract justice has been controlled or modified by the acts or agreement of the parties. Mrs. Lewis, in January, 1834, being about to marry a young man without property, deemed it prudent to have a marriage settlement. An instrument was accordingly prepared and executed. The defendant, D. B. Price, insists that, according to the previous agreement, as also according to his understanding of the terms of the settlement, both then and now, the property of Jesse Lewis was to be kept together, and he was to have the use of it, and maintain and educate the children without charge. The subscribing witness to *189the settlement testified that it was his own understanding of the instrument, that D. B. Price was to have the use of the whole property of Lewis’s estate, and was to support the children, and that the parties put the same construction on it. On the other hand, the complainant submits, that by the true construction of the settlement, Price was only to have the usufruct of Mrs. Lewis’s interest in the property, and out of this usufruct, her children, by Lewis, were to be maintained and educated by him (Price) without charge. All agree that, by the terms of the settlement, if Price survived his wife, the property was to pass to the children of the first marriage, when the eldest was of age.

It is hardly necessary to say that the parties must ordinarily be bound, not by their understanding of an instrument, but by the construction which the Court affixes to the terms which they at the time used. But with all this, it is no more than is due, as well to the intelligence as to the good faith of D. B. Price, to say that he very clearly proved what was his understanding, and that this would have been, under the circumstances, the only reasonable arrangement. Is the instrument susceptible of this construction ? It is lawful to look at the condition of things about the parties, and the objects to which the terms relate. Mrs. Lewis had a very young family, living in the country, with an income barely sufficient to support them. She was interested in a third of her husband’s estate; but it would have impaired very much their means of subsistence, if the property was not kept in common — at least, until her children were grown. The property was entirely too small to be susceptible of present division, without prejudice to her children — at least, so she seems to have thought. The leading purposes of the settlement seem, therefore, to have been, that the property should be kept undivided; that the children should be supported, and that their interest in their father’s estate should not be impaired for this purpose, but that if any encroachment on capital was necessary, it should be taken from her share, and that what was left of this share should be secured to her children in the event of her decease during the coverture. The deed transfers to the *190trustee Martha Lewis’s interest in her late husband’s estate, real and personal, describing it as one-third part thereof, in trust, after the marriage, to “ suffer D. B. Price to use, have, receive, occupy and enjoy all the interests and profits of the said property, (allowing the property itself to remain undivided) so long as the said marriage shall continue; and the said D. B. Price shall maintain and educate the said children, or the survivors or survivor of them, without making any charge against them or either of them ; and *shall also permit the said D. B. Price to use the principal*of the said property, if the same shall be deemed necessary by the said trustee, his heirs, executors or administrators, for the purpose of maintenance and education as above mentioned.”

It is then provided, that in the event of the death of the wife during the coverture, D. B. Price shall enjoy till the eldest child shall be of age or marry, and then that the trustee shall hold the said property, or the balance thereof, which shall remain unexpended, to be equally divided among the children. But if the wife should survive the husband, then the trustee was to re-convey to her “ all and singular the undivided third part of the property hereinbefore set forth, or *so much thereof as shall remain unexpended*

When it is remembered what was the actual condition of the family — of what the property of Lewis consisted, and then the express stipulation *“ to allow the property itself to remain un-dividedf*it is very easy to account for the conclusion of Price, that he was to occupy and enjoy, subject only to the burthen of maintaining and educating the children without charge.

It is difficult for the Court to determine what was precisely .meant by this provision, that “ *the property itself was to remain undivided*

If it was meant that the whole property should remain undivided until the law might require a division, to wit: — when the eldest child was of age or married, and the children, in the mean time, be maintained and educated, and that any encroachment on capital for that purpose should be out of the wife’s *191share, then Price fulfilled his duty in keeping the family and the property together, as the period for the division had not arrived, when he surrendered the administration. On this construction Price acted, as is shown by his conduct. In the first year he expended, for the comfort of the family and in the improvement of the property, more than three times the amount of his wife’s interest in the rent and hire which came to his hands. By the stipulation of the contract, he was hound not to divide off his wife’s share.

The income of the whole was barely sufficient to give them food and clothing and a very humble education. He managed the property well and judiciously, so far as the Court is able to *judge from*the evidence.

The Court is of opinion, that the instrument is susceptible of the construction which the parties seem to have all given to it. If it be said that the mother had no right to make such agreement, that may be true; but if the children insist on the benefit of the settlement, they must abide by the mother’s act. Nor have they any just cause of complaint. At the end of ten years they received their capital unimpaired, although they have been maintained and educated; and they have also the capilal of their mother’s share secured by the terms of the settlement. On the other hand, the Commissioner has submitted an account predicated on the construction proposed by the complainant. The result is at once instructive and startling. It has been already stated that Lewis left but four negroes, one of whom was worthless, and the other three were females. He lived in the country with his family, where he had the usual furniture for such an establishment, together with the ordinary implements of husbandry and some stock. Besides this, he left nothing but the house at Society Hill, and the notes and accounts which have been mentioned. For the ten years that the defendant held the property, the children were properly maintained and educated. At the expiration of that time, every thing was surrendered in about as good a plight as it was received, except, perhaps, that the furniture, &c. had suffered from *192the abrasions of time and service. If the administrator had collected every note and account, great and small, good and bad, the amount would not much exceed fourteen hundred dollars. Yet the report of the Commissioner brings the administrator in debt, on 1st January, 1850, five thousand nine hundred and thirteen dollars sixty cents.

If the whole personal estate of Jesse Lewis had been exposed to sale, (including the choses in action) on the day after his death, it. is very doubtful if it would have brought more than one-third of the sum thus reported. But Mrs. Lewis had paid nearly five hundred dollars of her deceased husband’s debts.

As the defendant, Price, failed to account satisfactorily for the choses in action of Jesse Lewis’s estate, the Commissioner was well warranted in charging him with the amount; but he is entitled to credit for the sums paid by Mrs. Lewis, while adminis-tratrix. This reduces the cash liability on 1st. January, 1834, to nine hundred and eighty-three dollars. On this sum he is chargeable with interest since he surrendered the administration, in November, 1844. The extent of his liability on the ap-praisement bill (as it is termed) must be referred back to the Commissioner. According to the construction which the Court gives to the settlement, Price was entitled to use the property as it was generally used. When he gave up the administration, he surrendered also, or purported to surrender, all that had not been consumed in the use. On this matter the Commissioner may report in detail what articles included in the appraisement of 7th November, 1832, were not turned over by the defendant in November, 1844, with any special remarks which he may think proper to offer.

The Court is of opinion that the interest which accrued to the wife of the defendant, by 'the death of her child, in 1836, is not affected by or included in the terms of the settlement, and that the same is subject to the satisfaction of any indebtedness which may be found to exist on the administration of Jesse Lewis’s estate, by either of the parties.

Any further or final order is reserved until the hearing of the *193Commissioner’s report, to be prepared according to the principles of this decree.

The complainant appealed, on the following grounds.

1. Because his Honor decreed that, in making up the accounts of the administrators of the estate of Jesse Lewis, the account current filed by Mrs. Price in 1833, should be assumed as correct ; and, whereas, it is submitted that the amounts therein charged as paid, were not vouched by sufficient evidence, and the account, as a whole, was discredited by the following among other facts established at the hearing: 1st. The items do not appear to have been paid on account of the estate, and were not, so far as we are informed by the evidence, vouched to the satisfaction of the ordinary, to whom the accounts were rendered. 2d. Many of the amounts charged, were proved by the administrators themselves to have been paid in discharge of the debts of Mrs. Price. 3d. There was no evidence of loss of vouchers or death of witnesses. 4th. Many of the individuals to whom payments were alleged to have been made, were within the call of the defendant, and were not examined to sustain the account; and one who was examined as to the sum of one hundred dollars or more, charged as paid him, proved that he had no such demand against the estate.

2. Because, supposing the account of 1833 correct as to the amounts paid by Mrs. Price, the general balance decreed to be due the estate is incorrect, as the rent of the house and lot at Society Hill, and the crops for 1832 and 1833, received by Mrs, Price, were not included in the estimate by the Chancellor.

3. Because, by the express terms of the marriage settlement, D. B. Price bound himself to support, maintain and educate the complainant and other children of Jesse Lewis, from the rents and capital of the portion of the estate to which his wife was entitled, and it is submitted that the Chancellor erred in allowing him to charge them in the aforesaid particulars, to the extent of the annual income of the whole estate.

4. Because, if it be conceded that Price was authorized to charge the whole expense of the support and education of the *194children, estimated at one hundred and sixty dollars annually, in their own funds, there would be an annual balance against him of sixty or eighty dollars, from 1834 to 1844, besides interest ; and it is submitted his Honor erred in ruling that his liability on account of the receipts of the annual income of the estate should be balanced by the support, &c. of the children.

5. Because D. B. Price was not entitled to charge for- board, clothing and education of the children, inasmuch as he made no charge at the time; made no returns to the ordinary, and filed no account or statement of his receipts and disbursements on account of the estate with his answer, nor did any other of the defendants.

6. Because his Honor should have charged the defendants with the value of the articles set forth in the appraisement, with interest from 183d, inasmuch as many of the articles were consumed by the said Price in the use, or made away with, many were greatly reduced in value when sold by the said Price in 1844.

7. Because his Honor erred in ruling that D. B. Price was only liable in the balance found due by Mrs. Price from 1844, instead of 1834.

8. Because the said decree is, in other respects, contrary to evidence, law and equity.

Dargan, for complainant.

*Moses*& *Haynsworth,*contra.

(A)

 The 28th section of the Act of 1789, (5 Stat. 112,) provides, “that executors, or administrators shall, annually,” “render to the” “ordinary” “a just and true account, upon oath, of the receipts and expenditures of such estate, the preceding year, which, *when examined and*approved, shall be deposited with the inventory and appraisement,” “ in the ” ordinary’s office,” “ there to be kept, for the inspection of such persons as may be interested in the said estate,” &c. In *Wright*vs. Wright, (2 McC. Ch. 196,) Judge Nott says : “ It is incumbent on him ” (the personal representative) “ to shew, by satisfactory evidence and vouchers, in what manner, it,” (the fund in his hand,) “has been administered. Thosevouehers he ought to keep as his secmáty; and the ordinary ought not to allow his accounts, when die vouchers are not produced, nor their absence accounted for. And it ought to appear on the face of the *settlement,*what was the nature of the evidence on which *the return*was accepted and allowed. And although the evidence with the ordinary is not conclusive, *per se,*in favor of an executor, it ought to be received for as much as it is worth: — and its value must depend upon a variety of circumstancesthe regularity of the accounts, the death of witnesses, loss of vouchers, and the lapse of time, must all be taken into consideration. In this case sixteen years have elapsed since the account was *settled*and allowed by the ordinary. It is not to be presumed that he suffered it to pass, without satisfactory evidence that it was correct. I think, therefore, that it ought to have been allowed by the commissioner. Executors are not less liable to loss of papers, by time and accident, than other persons. The settlement with the ordinary is intended as a *security for the executor,*as well as for the distributees; and, after a lapse of 16 years, ought to be a complete protection. It will, nevertheless, be subject to impeachment by the other side. If the defendants can shew any error or fraud, in the transaction, they are entitled to the benefit of it; but the burden of proof must lie on them.” R.

Johnston, Ch.,

delivered the opinion of the Court.

The enormous results of the accounts, as taken, are forcibly pointed.out in the decree : and lead irresistibly to the conclusion, that error exists somewhere in the proceeding.

But, though we are greatly disposed to exonerate the defendant, Price, as far as possible, from these results; .we cannot consent to do so, by what appears to us to be a misconstruction of the marriage settlement.

Our opinion is, that, by a sound interpretation of that instrument, it can operate only upon the third part of the estate, to *195which Mrs. Price was entitled; and that the children were to be maintained and educated out of the income, (and, if necessary, the capital) of that portion, only, of the estate: leaving the other two-thirds, with its income, to be accounted for, by the administrator, as the property of the children.

Let us read such portions of the settlement as relate to this point, bearing in mind, at the same time, that Mrs. Price, the settler, had no power to dispose of any thing beyond her own property. After reciting the marriage contemplated between herself and Price, and that she had four children, and was entitled to a third part of her late husband’s estate, with a proportionate share of the rents, profits and increase thereof, — the settlement proceeds to state, that - “ it hath been agreed, that the said D. B. Price, after the said intended marriage, should receive and enjoy the said *property belonging to the said*Martha, during the said marriage, — he appropriating so much *thereof*as may be necessary to the purpose of *boarding, clothing*and *tuition*of the said *children,”*— “ with the physician’s *bills*and *other expenses,*— and *making no charge*against them, for said purposes.” Here we have an exact description of the property to be settled, and an annunciation of the objects and terms of the settlement. Then follows the conveyance of the property by its owner, in which she conveys, to the trustee, *“*all and singular *her*right, *title and interest*” in *“*her undivided *third part*of the real and personal estate and choses ” of her late husband, and of “ the rents, increase, interests and profits thereof,” since his death: in trust, that J. D. Price, the trustee, “ shall suffer the said D. B. Price,” the husband, “ to use, have, receive, occupy and enjoy all the interests and profits *of the said*property.” Now, what property can this expression refer to, other than that, before described, as the property, or share, of Mrs. Price, which she had conveyed to the trustee, and, as to which alone, he, as legal owner had power to suffer, or allow, the use to the husband ? The instrument immediately proceeds, after thus speaking of the use of the *said property,*in a parenthetical form, to throw in the provision, “ (allowing the property, itself, to remain undivided.)” This *196evidently refers to the *said property :*i. e. to the thirds of the •widow, which she had granted, and of which the trustee was to allow the use to the husband.

But, to continue. It was to be kept together and the use of it allowed to the husband, “ so long as the said marriage shall continue,” i. e. during the joint lives of the married parties. But it “ shall not continue unto the said D. B. Price after the termination of the said marriage,” i. e. if he shall become the survivor by the death of his wife, *“*longer than the term at which the eldest of the said children shall arrive at the age of twenty-one years, or marry.” What is to be done with it in that event ? The instrument answers, it is “ to be equally divided, and delivered to the survivor, or survivors, of the said children.” Until that time it is *“*to remain undivided.” The reference is constantly to the same property ,• and that is the widow’s share. This the husband is to have the use of; and the stipulation is, that, having this use — “ the said D. B. Price shall maintain and educate the said children,” “ without making any charge against them, or either of them:” and, lest the *income*of the settled property might not suffice, for accomplishing this purpose, the trustee is to “ permit the said D. B. Price to use the *principal of the said*property.” (This certainly cannot refer to the general estate, over which the trustee had no control.)

And the deed closes by a provision which shows that, throughout, the widow’s share alone was in the mind of the parties. The provision is, that, if Mrs. Price should survive her husband, the trustee should re-convey her third to her, or what might remain of it) unexpended.

Thus it appears, from a fair reading of the deed, that the husband, so far from being entitled to charge either the principal or income of the children’s own shares, was bound to exonerate these shares from all charge, by employing the income, and, if necessary, the principal of his wife’s share, which was settled, for their maintenance and education.

We think this settlement was good as between the parties and • the trustee. The informalities pointed out by the Commissioner *197might possibly vitiate it as against John N. Williams,-the surety to the joint administration of D. B. Price and wife; but if it were set aside, it could not benefit this surety. A joint administration granted to husband and wife, according to the case of *Span*vs. *Stewart,**(a)***is a grant to the husband alone ; though according to *Adair*vs. *Shaw,*(b) it would be different with respect to an administration in the wife *dum sola,*and conferred by operation of law upon the husband, by her marriage to him.

Where administration is granted to husband and wife jointly, the administration is that of the husband alone. The bond given by Price and wife, to which Mr. Williams became surety, was the bond of Price alone, and Williams lent .credit to him exclusively. Putting the settlement out of the question, Mr. Williams is entitled to go against this property, only in case Price’s marital right has attached upon it. But the Court of Errors determined, in a case lately decided in Charleston, that where the wife’s share was never severed from the bulk of the estate (as in this case) the marital right could not attach. The Court would execute the equity of the wife — and, I suppose, wbuld, in so doing, conform to intentions expressed in a previous settlement, agreed on by the parties, though it may have proved ineffectual.

The Court is satisfied, however, with the decree that the interest of Mrs. Price in the share of the deceased child, or children, should be subjected.

We come, now, to consider how the account should have been taken, in regard to the two-thirds of the estate belonging to the children.

The only distinction we can discover between this case and those which generally occur, is, that this estate was a planting estate, and that the account filed by Mrs. Price is now 17 years old.

Undoubtedly the profits of a planting establishment are not to be judged of, in all cases, by estimates in detail of the hire of the slaves and the rents of the land. The hire of such slaves *198as are actually hired out, and the rent of such lands as are actually let out, must be accounted for according to the proceeds of the hiring or letting. But when the property is kept together, (unless we have an account of its actual profits,) the profits must be made out by general estimates. And, as in *Rainsford*vs. Rainsford, *(a)***and in *Pye*vs. *Carr,*(b) where the increase of the property itself is the result of its not having been used with exclusive reference to the production of profits, we must allow the increase to stand, to a certain extent, in the place of profits.

9 In the account before us, we think it would be allowable for the Commissioner, — while he may receive evidence of the probable hire and rent of the particular parts of the estate, — at the same time to receive general estimates of the profits of the estate, as a whole, reference being had to its condition : and that credits should be allowed for all probable expenses of such an estate: — (excluding, of course, in this case, the expenses of the family.)

And we think, that in such a case as this, where such liberality was extended to the children, by the mother and step-father, as to exonerate their estates from the expenses of nurture and tuition, the account should be taken with great liberality towards the parents. Doubtful charges against them should be excluded ; they should not be held to a strict account; and the lowest liability of which the evidence, reasonably inter-terpreted, is capable, should be established against them.

If I understand, aright, that part of the case relating to the building and rent of a dwelling house: there should be some reform of the report in that subject. I understand the administrators have been charged for the rent of the premises, as improved by them : while, at the same time, they are denied credit for the value of the improvements. I think rent is not allowaable for premises which the tenant has rendered capable of yielding rent, if they did not yield rent before: and that, by parity of reasoning, the tenant is not chargeable, for so much of the rent of the premises, as his improvements have contributed *199to produce. At the same time I am content, — -in this case,— that the tenant should have credit, not for the cost of the improvements, but for the value they imparted to the premises.

Upon the subject of the return to the ordinary, there is much difficulty.

Where the Commissioner is satisfied, that the items were vouched before the ordinary, and passed by him, as charges against the general estate, in the nature of expenses thereof, I think he may venture, at the end of 17 years, to regard these charges as proved *prima facie.*But it appears, on the face of the return, that only part of the items were vouched. Of those not vouched the Commissioner should require evidence; but that degree of evidence should satisfy him, which may be expected to be produced after such a lapse of time.

I had forgotten, at the proper place, to make an observation in regard to the furniture. I do not think it was evidence of unfaithfulness, in these administrators, under the circumstances of this case, that they did not sell this property. Yet, if they thought proper to retain it, and make use of it, they must reproduce it in as good condition as they received it, or account for the value of such of it as was lost, or for the injury of it, as the case may be, But, I do not think they should be made liable, in such case as this, for interest upon it.

Let the case be remanded to the Circuit Court, and the report to the Commissioner, to make up the accounts on the principles of this decree. We do not regard the points made in the 3rd and 7th grounds of appeal, concluded in the decree.

Decree modified accordingly.

Dunkin and Wardlaw, CC. concurred.

Dargan, Ch., having been of counsel, did not sit in the case.

*Decree modified.*

(a)

**1 Hill Ch. 336,

(b)

 1 Sch, & Lef. 343.

(a)

 Rice Eq. 343.

(b)

2 Strob. Eq. 105.