#### Jefferson L. Edmonds *and wife, and others, legatees of Cates,*vs. Anderson Crenshaw & James M'Morries, *executors of Aaron Cates.*

*fMU against Executors, for an account, fyc.*

*Testator by his will directed his whole estate to be sold, on dc credit of one, two and three years, to be secured by bonds*bear*ing interest from the date, with good 'personal security and 'mortgage of the property, and the proceeds vested in stock, to accumulate, until certain of his legatees should come of age. The executors sold the property, but never made any investments in stock, and failed in returning accounts of their administration to the ordinary. In accounting bejore the commissioner, it was held that they were properly charged with the whole amount of the bill of sales; with interest on that amount until the bonds became due; the interest then compounded, and annual rests made.*

*The testator bequeathed to the executors ten per cent, on the amount of his estate, for their services in executing his will; though they failed grossly in discharging the duties prescribed by the*will, *yet as they were charged with the whole, amount to which the estate would have accumulated if they had performed them properly, they ivere held to -be entitled to the per centage.*

*225*The executors not allowed credit for the amount of a commission of ten per cent, on the debts of the estate, paid by them to an attorney for his services in collecting the debts and paying over th- monies.*

*One of the executors who remained in the*state, *gave to the other who was about removing out of it. and who did afterwards remove, an acknowledgement of having received- all the monies, evidences of debt, property of every kind, fyc. 'of the estate. Held to be conclusive evidence to charge the executor who remained with the whole estate.*

*This executor having'neglected to make collections, having failed to make the investments directed by the will, having neglected to file accounts with the ordinary, being embarrassed in his private affairs and negligent and intemperate in his habits, and there being ground to apprehend that he intended to leave the state, was removed from the executorship and a receiver appointed.*

*It appearing, after a lapse of eight years from, the death of the testator, that it would be more advantageous to vest the funds in land and in slaves ‘than in stock; by consent of the legatees who were of age, that change in the mode of investment was directed to be made, with respect to the portions of the estate that were to he held in trust for them. With respect to the shares of the minors, it was referred to the commissioner to re- . port whether it would be clearly and indisputably for th¡ ir advantage to change the mode of investment,*

*band was purchased by the executor in his own name, and paid for partly with funds of the estaie in his hands and partly with money i-aised on a note discounted in bank. The land was mortgaged by the executor to his indorser on the note, for his security, who afterwards paid the note: Held that the la d was liable in the first instance for the satisfaction of this mortgage.*

Chancellor *Desaussure.*This case came up. on the commissioner’s report and exceptions thereto; and on various motions grounded on the facts of the case, which appeared upon the hearing. The report of the commissioner is drawn up with remarkable clearness and judgment, and it might be sufficient to decide on the points made by the report and exceptions, merely referring to them for the questions growing out of the proceedings. But the great importance of the caso itself, and *226of the questions to Ite decided, makes it proper tliat a short statement of the facts should be made, in order to a right understanding of the case.

It appears by the bill, the answer and the evidence, that the late Aaron Cates, being seized and possessed of a considerable real and personal estate, made and duly executed his last will and testament on the 7th day of February, 1816, and departed this life, leaving the same in full force and virtue; wherein he directs all his real and personal estate to be sold at auction, on a credit of one, two and three years; the purchasers to give bond with two good freehold securities, and a mortgage of the property, drawing interest from the time of the sale; with some exceptions as to purchasers for smaller sums than $200, when only one year’s credit was to be given. The testator then gives a few small pecuniary legacies, and directs that his executors should receive a compensation for their services, more fully stated hereafter. The testator further directs as follows, “after which I will and direct that my executors vest the clear balance in bank stock, or in shares or capital of such company or corporations, as In their judgment will be most proper and productive of interest, for the following benefits and uses, and subject to the following restrictions and regulations, viz. to each of my three grand-daughters, Dorothy Ann Wadliugton, Polly Brooks Wadliugton, and S. S. F. Wadlington, oh their respectively attaining to the age of twenty-one years, 1 will that my executors pay one-fourth of the profits arising from the aforesaid shares or stock; and should either die without issue living at her death, the provision herein made for her to go to her survivor or survivors. After they respectively attain the age of twenty-one years, they are *to receive the*profits annually; the remaining fourth part of said profits I will to *my daughter Dorothy,*so long as she remains a widow; and on her death or marriage, to my three grand-daughters in manner as aforesaid. Should my said grand-daughters all die without leaving issue alive at their death, then I will that their parts, together with that of their mother, go to my next of kin: and it is my intention that my daughter or grand-daughters shall not *227sell or alien the provision herein made for them, under the pain ©f forfeiting the same as if they were dead; hut that they are merely to receive the profits annually: and lastly, I constitute, and appoint my friends, Anderson Crenshaw and James M:Mor-nes, executors of this my ia-t will and testament; and on the death of either of my executors, it is my desire that his survivor he sole executor, with power of appointing, either by deed or will, a proper person to carry into effect the provisions and intentions of this my will and testament. I desire my granddaughters to be reasonably educated by my executors, out of the provision above made for them.”

The above named executors,-after the death of the testator, (which took place soon after executing bis will) proved and established the said will in the court of ordinary; and qualified thereon as executors. They caused the personal estate to be inventoried and appraised; and on the 11th March, .1816, they caused the real and personal estate cf the testator to be sold, on the terms and credits directed by the will, and the sales amounted to $25,144 33 cents, as appears by the sale bill. It appears also that the executors possessed themselves of the cash left by the testator, and of his bonds, notes and books of account.

It appears further, that Anderson Crenshaw, one of the executors, being about to remove out of this state and to settle in Alabama, came to a settlement with the other executor, Jas. M‘Morries, and surrendered up the whole estate of the testator to the said J. M‘Morries, who, on the 21st day of April, 1819, signed an instrument of writing, by which he acknowledged that, on a full examination and settlement then made, he the said James had received of and from the said Anderson Cren-shaw, executor of said Aaron Cates, all monies, notes, bonds, bills, mortgages, books of accounts, deeds, abstracts ot judgments and decrees, debts, and all dues, receipts, papers, and effects, and every thing of every description, which ever came to his hands or possession, for or belonging to’ the estate of the said Aaron Cates; in consideration of which, the said James M‘Morries undertook to account for and answer for the man*228agement of the whole of the estate of the said Aaron Cates? both real and personal, and to indemnify the said Anderson Crenshaw against any responsibility or damage on his part.

It appears further, that after this transaction, the said Jas. M‘Morries had the entire management of the estate of Aaron Cates; but he has never made any returns to the ordinary of his-transactions, execept for the years 1816, 1811, and 1818; and it appears that the said James M'Morries has *never*made any investments of the proceeds of the sales of the estate of Aaron Cates in bank stock, or in any other stock; but has received large sums of money from the purchasers of the said estate and from the debtors of said estate, without accounting for the same, or employing the same beneficially for the heirs. It appears further, that the affairs of the said James M'Morries are greatly involved, and that all his visible and known property, estimated by competent persons, is entirely insufficient for the payment oi what is due by him to the estate of Aaron Cates, besides his debts to other persons; and it was insisted by complainants and supported by proofs, that the habits of the defendant, James M'Morries, had become intemperate to a high degree, so as to render it unsafe to trust him with the management of affairs.

The complainants, who are the legatees, alledge that k might have been practicable for the executors originally to have made advantageous investments in stock, according to the directions of the will; but that the opportunity of doing so has now passed by, after a lapse of eight years — and they pray that investments may be made in lands and negroes.

The complainants further insisted, that the executors have^ by their misconduct and non-performance of the duties prescribed by the will of the testator and by law, forfeited their r'gh>. to the compensation directed by the will, or to any other coume.isation: and they prayed that they might be decreed to give security for the faithful performance of their duties, or that t ie funds should be taken out of their hands and management; and that they might have such other relief as their case might require.

*229The bill was taken pro confesso, as to Anderson Crenshaw, who Is resident out of the state.

The answer of the defendant, James M‘Morries, admitted the due execution of the will of Aaron Cates a Bid his death, leaving the same in full force, and the probate thereof, and the-qualification by the executors, and the sale of the real and personal estate, according to the directions of the will. The defendant, James M-Morries, also admitted that his co-executor, Anderson Crenshaw, had departed from the state, and resides in Alabama; and that previous to his departure, he surrendered up the estate to him, the said James, and he gave the said Anderson the receipt and discharge stated and set forth in complainants’ bill. But he alleges that he was indisposed at the time, and having implicit confidence in his co-executor, he acted upon his statements, ('he having been until then the principal acting executor) without knowing whether they were correct; and he disclaims being made responsible for more than, his own acts, and for the funds which actually came into hia hands. The defendant admitted that no investments in stock .had been made of the proceeds of the sales of the estate; and alleges as an excuse, that Mrs. Dorothy Wadtington, the daughter of the testator, had solicited that such investments should not be made: but the defendant insists that such investment ought new to be made, conformably to the will, and not in the purchase of lands and negroes, as the complainants desire. The defendant claims the full allowance of ten per cent, on the amount of the sales of the real and personal estate, and of debts due to the estate, conformably to the will of the testator.

The case having been referred to the commissioner, lie *reported:*That from the sales made of the estate, there results a debt due *by the*executors of *$*38,007*25, including *interest,*calculated up to the time of making up the report; (June *1824) toith which amount the commissioner*charged the executors? To this part of the report the defendant filed exceptions, and the principal question in the case arises as^to the propriety of this charge. The evidence in the case was large, &nd the *230arguments of counsel extensive. They will be submitted *to the*court of appeals, if the cause should be carried up there. It is unnecessary now to detail them. In considering the question whether the executors are properly chargeable with the whole amount of the sale bill, it must be remembered that the testator* by his last will, directed all his estate to be sold by bis executors, on specified terms, which required them to take good personal security from the purchasers of so much of the property as might be sold on a credit, as well as the bond of the purchaser and a mortgage of the premises; for which, and other services, they were to receive a larger compensation than the general law allows. The executors made the sales prescribed; and if they pursued the instructions of the will, the debts must., in all probability, have been good, and easily recoverable. If any weie bad without their neglect, it was easy to shew it. *It*was their duty to have applied for and received payments, as-soon as the terms of credit expired, and to have made regula!' annual returns to the ordinary, of monies received and paid away, and invested according to the will. This has not been, done. .They made the sales,-but have not made the collections regularly or with any’diligence, nor, have hey made returns to the ordinary, except for the years 1816, 181? and 1818; and the returns made for those years amount to a very inconsiderable part of the estate; : scarcely more than a tenth part oí what, they are chargeable with, t Nor have they invested one dollar according to the direction of the will; nor have they shewn any losses on the sales of the estate; nor why they have not- collected what remains unaccounted for in their returns. Under these circumstances, it does appear to me, that the commissioner has acted properly and judiciously in charging the executors with the whole amount of the sale bill. The exceptions are therefore overruled, and the report of the commissioner on this point confirmed.

The commissioner’s report goes on to examine the question of interest, and to state the reasons why he has charged the executor with interest, in the manner he does in the statement he submitted. The report is full and particular, and *231exceptions are filed to it. I was at first in doubt, whether the commissioner had adopted the proper rule as to interest; but upon comparing his reasoning with the circumstances, ■I am satisfied he has done right. It is obvious that he has not charged too .much; as he states, “that the executors at the sale of Mr. Cates’ estate took notes and bonds, from all purchasers whose purchases exceed $200, (all below was cash) payable *with*interest, precisely in the manner with which this report charges the executors with interest, The executors are therefore, by this report charged with no more than what they have received of compound interest.” 1 am satisfied in this; but my principal difficulty was, whether as the executors were directed to invest the money of the estate in stock, which would have produced a regular annual return of interest, the surplus of which, after allowing for the maintenance of the children, could and should have been re-iuvested. the executors ought not to be charged more largely with the interest than the report has done. But upon the whole, Í will be satisfied therewith-, and I hereby overrule the exceptions and confirm the report.

The next question arises out of that part of the report which discusses the question, whether the executors are entitled to the ten per cent, claimed by them under the will of the testator. The will, after prescribing the duties of the executors, then proceeds to say, “1 will and direct tlrat my executors (after paying the above legacies and all just debts, and other proper charges and expcnces) receive as a -compensation tor their services, ten per cent, on the whole amount of monies to he collected from the sale of my estate, and of outstanding debts which may be due me at my decease, *or which may*become due thereafter. After which, I will and direct that *my*executors vest the entire clear balance, (including the neat proceeds of my estate then in their hands) in bank stock, or shares or-capital of such companies or corporations, as in their judgment, will be most proper and productive, in trust, fee.” for the benefit of his daughter and three grand-daughters. The executor claims the ten per cert *ga*the whole-amount of the estate, as a legacy.

*232The commissioner reports that the direction to allow te’á per cent to the executors, was for the performance of extraordinary services-enumerated in the will; which have however not been performed; and therefore they are not entitled to the ten per cent: but he is of opinion the executors are entitled to the five per cent allowed by law, on so much of the estate as they have collected and applied according to the directions of the will. Exceptions were filed to this part of the report The ten per cent in question was undoubtedly a legacy; but it was a 'legacy given for the performance of important services, which •are explicitly stated in the very sentence bequeathing the legacy, and coupling the duties and the reward together. They were 'not performed in many important particulars; and much loss has been sustained by their neglect, in not collecting and investing the monies of the estate in stock.

Under these circumstances 1 am of opinion with the commissioner, that tire executors are not entitled to the ten per cent bequeathed them for services to be performed, but which were not performed. The exceptions are therefore ovorruled, and the report confirmed,

I also concur with the commissioner, that the executors are ■not entitled to the statute allowance of two and a half per cent receiving, and two and a half per cent on paying away money ■of the estate, for the years in which they they neglected to make returns to the ordinary of their transactions. For those years in which they made returns, it is proper .they should *be*paid. The report in these respects is therefore confirmed, and. the exceptions overruled.

The report further states, that the defendants claimed credit for so much money paid by them to Mr. Bausquet, as ■commissions for transacting the business of the estate. The ■commissioner rejected the claim, because no distinct or certain amount was proved; and if proved, it was claimed by the executors on untenable ground: “for it appeared that whatever was paid to Mr. Bausquet, was paid as a compensation fo.r the trouble and responsibility of receiving and paying out the money of the estate, and not for counsel and professional ser*233■vices. It appears by the receipt of Mr. Bausquet to Air. AR Afondes, dated ia May, 1819, that bonds and notes to .a very large amount, say about $ 28,000, were placed in his hands “for collection;” which was soon after the whole amount of the estate and the management of it was surrendered by Mr. Cren-shaw to Air. AR Alomes.

I have considered the reasons assigned by the commissioner for disallowing this claim, and I think them correct. The commissions allowed to executors for 'transacting the af•fairs of the *estate,*are restricted by statute to a .per *centage*for receiving and for paying away the money of the estate. Nov/ they cannot charge that per centage for themselves, and then another per centage for the same service by another person; though all reasonable services actually performed by counsel and paid by the executor should be allowed. The report ill this respect must therefore be confirmed, and the exception ■overruled.

After 'allowing the defendants credit for all 'the sums properly paid by them on behalf of the estate, and all the charges legally payable to them for commissions, the commissioner reports that the' defendants, the executors of A. Cates, have an unexpended balance of the estate of their testator now on hand, .to the amount of *‡ 34,144 1*Of. For the reasons given above, I have concurred with the commissioner, that the defendants are liable to that amount " 11

It was however contended for the defendant M'iVIorries, that Mr. Crenshaw had been for a considerable time the princi-' pal manager and actor in the affairs of the estate; and that he, AR Alomes, ought not to be chargeable with the whole amount, now that Air. Crenshaw had removed out of the state with his property. To tliis it was answered, that both the executors were jointly in possession of the estate, and both were responsible: also that Air. Crenshaw before he left the state, surrendered and delivered up all the estate, bonds, notes, &c. to defendant ARAIorries, who gave bis receipt for the same and made himself liable. That receipt, bearing date the 21st April, 1819, and signed by James M'Morrie*, ia the presence of a witness *234and certified by the ordinary,- states that Anderson Crenshaw and James M'Morries “had gone into a full and thorough examination of all the monies, notes, bonds, bills, mortgages, books of accounts, judgments, decrees, debts, receipts, paper? and effects, of all kinds and descriptions whatever, relating to or belonging to the estate of the said Aaron Cates, deceased, and after a satisfactory investigation and fair and full adjust' ment of all affairs of the said estate, the said James M'Morries, as executor aforesaid, acknowledged that he had received .f and from the said Anderson Crenshaw, executor as aforesaid, all monies, notes, bonds, bills, and all dues, receipts, papers, and effects, and every thing of every description, which ever came to Ills hand or possession, for or belonging to the estate of the said Aaron Cates, deceased:” In consideration whereof, he the said James M'Morries undertook “to account and answer •for the management of the whole of the estate of the said Aaron Cates, deceased, both real and personal; and to indemnify the ■said Anderson Crenshaw, against any responsibility or damage on his part ”

Against this receipt it was contended for Mr. M'Morries, • that he had signed it incautiously, without due examination., and that he ought not to be bound thereby; but should *be*per» knitted to prove that be had not received the whole of the estate ■ahd effects 'conformably to the receipt.

It would be most dangerous to permit a party to aver against such a receipt, so deliberately and formally executed, Without proof of fraud, and contrary to the presumption aris» -;ing from the fairness of the character of Mr. Crenshaw. Mr. M'Morries would not be easily permitted to elude the force of that receipt, even in a controversy with Mr. Crenshaw; but it is wholly out of the question to permit him to deny its validity and effect in relation to the heirs of the estate in question; he must be bound by it, and be responsible to the full extent of it. Nor indeed has he furnished any proof to discredit the «receipt.

We come now to the consideration of another question -of-importance to the interests of -the parties. .But. it is not one *235in *my*opinion of any difficulty. '-It is whether James M'Moc-.ries is entitled as executor to be restored to. the.possession, care and management of the estate of the testator Aaron ;Catess which has been-taken out of his hands by-vivtue-of the,orders of this court, founded on certain affidavits. The.objections made against him are, that though all- the debts owing to the estate, well secured, were due in-the .year 181.9,. when the whole, estate came into his hands.exclusively, as appears by his receipt to Mr. - Crenshaw, that he has made few. collections, • by whiclrhe disobeyed the w'ill of testator, and put some of the debts in jeopardy: that be has not made any investments of .stocks, as directed by the will, which would have -produced agreat-accu-mutetion by .this time, which was. also indirect disobedience of the will of the testator: that since the year . 181.9, he. has not filed any-accounts with the ordinary, which is. contrary to law: that his private affairs are in great disorder and his debts very considerable, so that-the estate is already likely-to be a great loser by: him:- that his habits are intemperate, and-grossly negligent; whence the most serious apprehensions are entertained of future mismanagement and loss, to the.estate: and .finally, that there is reason to-believe that Mr. ‘Monies meditates leaving the state and,the jurisdiction of .¡the -court,-to a\oid responsibility. There was much proof gone into on these-several allegations,, and it is with regret I feel myself.,bound to say, that they were all supported; some of them conclusively* and most .of :them .very strongly- The' last allegation of an intention .to depart the state, .was- the most feebly supported; hut there appeared to be.- some ground even for- that apprehension. . On a case so made put, fit is impossible, for the court j;o hesitate. It, would be a great defect jn the jurisprudence of any country if protection could not be given to estates of minors* by. the removal of trustees and executors who haye„gros ly neglected their duties or. abused their authority, to .the-manifest-prejudice.-of the estate committed to., them. That defect does not exist with us. -The remedy has been often applied. In England it .is carried so far that an executor and trustee bp-Coxnipg a bankrupt, a receiver is appointed in his.stead, -though. *236ilie testator knew after he had made his will, that a commission of bankruptcy had been issued. See 5 *Jladd. Rep. 46,*'Lang, vs. *Hawkins.*

Under the circumstances of the case before me, I am bound for the preservation of the estate and for the protection of the legatees, and to give effect to the will of the testator, to consider the executor and trustee as- incompetent to perform his duties and dangerous to the interests of the legatees; and therefore to be set aside, and the appointment of a receiver to be confirmed.

'Another question was made as to the ne exeat and the oiv ders- for sequestration grounded upon the affidavits. It was moved to set them all aside, on the ground that the evidenc# of a fixed determination to leave the country and *carry*off his property to elude his creditors-; was- not sufficiently strong against said M'Morries to induce the court to- continue' those orders. The affidavits originally made out a case sufficient to justify those orders. The denial of the answer and the testimony of defendant at the hearing lias diminished the force of those- affidavits, and I am very desirous to acquit Mr. M‘Mor-ries of this imputation: as however the affidavits originally made were sufficient to authorize the orders made, and though v eakened by the answer and evidence, their force is not entirely removed; and as the capacity of the defendant M‘Mof-ries to pay what is due to the estate is more than doubtful and he has not fully complied with the order, and as some points of the case'are referred again to the commissioner, and no real injury results to the'defendant who is allowed to remain on the estate and to have hiá living from it, no order will be made for the present on this “motion. Tt ma/be renewed to the court hereafter.

Another question was argued and the judgment of the-court required on it. It was, whether the court would grant the motion of the .complainants, that the funds which may bo collected on account of the estate, should be invested by the receiver in the purchase of lands and slaves, instead of being invested in stock, as'directed by 'the will. • In support of this *237motion, it was urged that so many years had elapsed since the direction of the testator to invest the proceeds of the sale of the estate in stock, which had been utterly neglected by the executors, and, such great changes had taken place in the prices of stock and of lands and slaves, that it would now be very injurious to the legatees to have the will of the testator literally carried into execution.

The evidence upon this point seems- to establish the grounds of the application, and I shall therefore have no hesitation in decreeing that the two fourth parts of the estate, bequeathed to the daughter of the testator and to his grand» daughter, ("now Mrs. Edmonds • be invested in lands and slaves, by the receiver, if the same can be done advantageously, according to the best of his judgment, upon consulting the parties interested, to be held on the same uses and .trust as the stock was directed to be held by the will.

With respect to the two remaining fourth parts, I have much hesitation. The testator is very explicit, that- the proceeds of the estate should be invested in stock for the benefit of the legatees, and these two are minors and cannot give their consent to such a measure, changing the destination and character of the fund. To be sure, if during the delay of eight years, produced by the neglect of the executors, such a material change in the prices of property has taken place, that it would he very injurious to invest the money in stock and very beneficial to invest it in lands and slaves, the court would authorise that course to bo pursued *most*beneficial to the legatees; but that must he clearly shewn, and though some important testimony was given on the trial, I would prefer that the question should be referred to the commissioner, for fuller examination. It is therefore referred to the com mis ■ sioner to make enquiry, receive further evidence, and report to the court whether it would be indisputably and clearly-for the benefit of the minor legatees, that their shares of the money should be invested in the purchase of lands and slaves, rather than of stock; to be held in trust to the uses and purposes of the will.

*238Several motions were made by the counsel and submitted to the court, at the close of the argument.

One was by Mr. Caldwell, on the'part of the defendant, James M'Morries, that it be referred to the commissioner to as» certain the extent of the receipts of -each of the defendants, and. their respective responsibility in this respect. It will-be perceived from what has been stated above, that I hold the defendant, M‘Morries, responsible for the whole amount of what is •due by the executors to the legatees; as between them : therefore the enquiry requested is unnecessary; but as it may be important to" defendant, M'Morries, in settling with Mr. Crenshaw, though it is difficult to conceive how he can avoid the effect •of his own receipt, the enquiry requested, - may be madeby the commissioner.

On the behalf of the defendant, James M^forries, another motion was made to discharge the levy made under the sequestration on the slaves, Will and Young, and one tract of land of 100 acres in: Laurens district, which it was alleged, - were alienated or mortgaged, ’bona fide,.before sequestration. Tf this be so, there pah fae- no doubt of the propriety of the discharge; subject however to-the lien which ' Cates’ estate may have on one of the- slaves, which dt is. alleged Monies purchased at the sale Of the'estate. The commissioner is therefore directed to enquire and examine into these facts, and: to report thereon to the court. I: thought at- the’ hearing that as. Mr. Geary,and P. Page were-.not patties, no order could-be made thereon. On re-consideration; I-arii inclined to the opinion that such an order;-being for their benefit, may.be made.

-There was another question of importance argued., fully, which requires the decision of the court. .. MrCCaldwell woyed on the-part of the defendant, M'Morries, that - a. certain tract of land containing-440.acres, the property of James M‘Morries, who mortgaged the same to William Calmes, to secure the payment of a certain debt,; prior to the sequestration, should be discharged from- the sequestration,or ¡if sold should be .'first held.liable for the.debt-due to Calmes. It was objected by the complainants, that the. debt alleged to be due to Calmes was *239not really due to lilm; and if it were due, still the land purchased by James M‘Morries from Mason, ('which is the land in ques ion) was paid for with the funds of the estate; consequent-, ly that the land so purchased and held, was in trust for. the estate of Aaron Cates.

The evidence on this part of the case was as follows: that Mr. M'Morries purchased the tract of land in question from Mr. Mason, and the brother of Mason, the vendor, testified that the balance of the purchase money was paid to his brother by M‘Morries, out of the money which he got from Br. Glenn, on the sale of a tract of land made to him. Dr. Glenn testified, that he did buy a tract of land from M‘Monies, in March, 1820, for *$2,500,*which he then paid in cash, and took conveyances to himself. King, another witness, testified that the debt contracted by M‘Momes to Calmes, was to raise money to pay for the land he had purchased (from Mason.) He says that it was raised by a note in hank, endorsed by Calmes, and •paid by him. But the witness knew this only from M'Morries-acknowledgments to him. Mr. Harrington proved that Calmes paid the sum of *‡ 925*for M‘Morries.

Mr. Bausquet, (examined as a witness) testified that Mr. M‘Morries had acknowledged to him, he had laid out part of the trust money of the testate of Cates, which came into his hands, in the purchase of lands and negroes; but he did ■not understand him that the trust money was laid out to pay for this land in question, for he had not paid for it at the time.

It was argued for complainant, that where a trustee invests trust funds in the purchase of property, and takes the title •to himself, the estate so purchased and paid for, is held in trust for those entitled to the benefit of the trust fund. This is undoubtedly true. But the rights of innocent third persons are to be regarded If orries did pay for the land iirquestion partly vnth the funds of .the trust estate, which is by no means distinctly proved, though highly probable, it is equally, if not more certain, that he paid in part at least with his own money, and that the money which he raised in Bank, on a note .with Mr. Calmes for Isis endorser, was raised to pay in part *240for the land. Mr. Calmes was obliged to pay the note as en* dorser. He therefore was a most just creditor of v. i ’ > or* ríes, and the latter acted justly in securing the debt by a mortgage of the land, which being first in point of time, must be first paid. It is therefore ordered and decreed, that when the land in question shall be sold by order of the court, the proceeds of the sale shall be applied in the first instance to the payment, of *the debt*of *‡925, to*Mr. Calmes, with "legal interest, and that the balance he "applied to pay what may be due to the heirs and legatees of Aaron Cates, deceased, in case the funds surrendered and delivered up to the receiver by J. iVIhuomes bo insufficient to pay what may be due.

The defendant ¿1‘Morries appealed from this decree on the grounds.

*1st.*Because the interest is compounded in the calculation on the sale bill, and because the report charges the executors to the amount of the sale bill and the interest thereon; whereas -each ought only to be answerable and responsible for his own individual acts, and no interest ought to be charged, unless there was evidence that it was received, neither ought any to be charged if the funds were dormant.

*2nd.*Because the decree decided that the defendant James IvbMorries is individually liable to the amount of the sale bill; whereas the defendant James IvbMorries never received the amount of the sale, in either bonds, notes or money, and ought not to be made liable to that extent, as the rule of responsibility is confined to the actual receipt of funds, and not extended to .make one executor liable for the conduct of his co-executor.

3rd. Because, the defendant James M‘7vlorrics ought to br-ailowed the amount of the expenditures returned to the Ordinary; and as the ordinary has admitted the returns, it ought to be sufficient evidence to this court to allow them.

4th. Because the defendant James M‘Morries is not allowed the ton per cent, *“*on the whole amount of monies to be ccl lected from the sale,” “ of the estate” and “ of the outstanding debts” *c due,” which is legatory; whereas the report only allows five per cent on .the .three returns; Also, because it was *241*not necessary-*to make any returns of the estate, and if it *were, it*was rendered impracticable by the absence of the co-executor, and moreover that the act of 1739 is not applicable to cases where the compensation is left to the executor or executors, by the will, as the acceptance of the appointment vests the legacy; and because the report ought not to have rejected the compensation in the will, on account of the estate not being vested in bank stock, as it would have been impracticable to the executors, injurious to the estate, and contrary to the wish of some of the persons interested in the estate. *

5th. Because the report refused to allow the defendant ■James MCdorries the per cent which he paid to the- agent employed in collecting a part of the estate, and which ought to have been allowed.

6th.. Because the defendant James M‘Morries ought not to fee charged with the amount-mentioned in the answer *of the*defendant James M‘Monies, which was retained in the hands of his co-executor, for his services, before he left the said state.

7th. Because the decree sets aside the executor and con-. firms the appointment of a receiver, and directs two fourth parts of the estate to be invested in lands and slaves, which is contrary to the will; and because the motion to set aside the ríe exeat and sequestration was not sustained.

8th. Because the decree is contrary to equity, &tc.

• The complainants also appealed on so much of the decree as related to the mortgage of the two slaves to Page and Gairey, and the land to Calmes, upon the grounds,

1st. That the lis pendens, and the order made that M‘Mer-ries should pay over to a receiver the whole funds of the estate,, constituted a lien upon his estate for the-whole amount of his testator’s estate, and being prior in time to the mortgages, ought to give the complainants the preference:

2d. That the equity of the complainants was superior to the mortgagees, and they ought to be preferred:

3d. That the complainants are entitled to rank as mortgage creditors', with at least an equal Hen to the,mortgages of Calmes, Page, and Dairy.

*242*O’Neal*and *Johnson,*for complainants,

*J. J. Caldwell,*for defendants.

Chancellor *Desaussure.*

In this case there aré many points of great importance, and some of difficulty. We have con* sidered the points decided, and we are satisfied with the decree, except on the points hereafter stated The executors of Aaron Cates were directed to sell the whole of the estate, real and personal, and to invest the proceeds in bank stock, or in shares of some incorporated company, according to their judgments. These investments have not been made in the smallest degree; but the circuit court has made the executors liable for the amount to which the property would have accumulated if they had done their duty under the will. It appears therefore to us that it is proper to allow them the compensation of ten pec cent on the amount of monies of the estate received by them, which is given, by the will of the testator, to the executors, for. the performance of the duties assigned to them.

It is therefore ordered and adjudged that the decree of the circuit court be affirmed, except so far as the same takes away from the executors the allowance of ten per cent, which we art; of opinion should be allowed to them: And it is further ordered and adjudged, that the commissioner do re-examine the accounts and statements, and report thereon; allowing the executors the ten per cent, given them by the will, on the monies of the estate collected by them. In making up the account, the commissioner will take care to make annual rests in his calculations. We have, considered the complainants’grounds of appeal, and we do not think them well founded. It would be carrying the doctrine of implied liens to an extent which would be dangerous to third persons, and tie up the transactions of business and of life, to give the construction and effect to the will which is contended for by the complainants. Nor can we give the extent to the doctrine of hs pendens which is contended for by the complainants. Upon the whole, we are of opinion that the appeal of the complainants should be dismissed.

Chancellors *Qaillard*and James, concurred.