*Beaufort District.*

Heard by Chancellor James.

#### Christopher Jenkins, et al. *vs.*Samuel Fickling, Executor of C. Jenkins.

CASE 1III,

Commissions not allowed to an executor, unless he settles his accounts annually with the-ordinary according to law.

Executors having balances in their hands for several years, and not investing these balances in productive property, for the estate, are chargeable with interest.

Executors not entitled to charge for overlooking or superintending the estate, when they entitle themselves to and actually draw commissions. Where the commissions are not drawn, the charge of overlooking allowed in some cases.

This cause came to a bearing upon the report of the commissioner and exceptions of the defendant.

' First exception abandoned.

Second, — That the report does not allow commissions to the defendant.

It appears upon the report that the defendant settled with the ordinary, up to the 12th day of February 1805, and the ordinary passed'his accounts on the 2d day of May 1806, on which settlement commissions are allowed by the court, the same not being disputed by complainant’s solicitor; For although such accounts were not rendered, at the eml of the year strictly, according to the words of the act of 1789, for granting probates of wills and letters of administration, yet they were settled in a reasonable time. But from the 2d day of May 1806, until the 12th day of June 1812, the defendant has not .accounted with the ordinary, and on these accounts, the court will allow no commissions, (except on the last year, 1811, rendered on the 12th day of June, 1812, at a time not very late,) because the act above mentioned appears to be positive upon that head. If there had been a neglect only of a few months, it is thought that such a short period of neglect may be passed over; but where more than six years have elapsed, it is conceived that such an omission is not to be tolerated.

*370FEB’Y 1813.

Third. — The report does not decide, whether de» fenda«t us executor is to be charged with interest.

But the court can do so. Exerutois are much favored in equity, where they act well, and even where |¡jera js a default in paving up monies, it is seldom rigorous; but where an executor has kept monies in hi® hands for near seven years, (from Jan. 1806, until June-3819.) as the present one has done, without investing them in productive property, as directed by the will, he is not entitled to favor. 1 am clearly ol‘opinion, that he ought to pay interest for the use of these monies. S® that this exception is overruled.

Fourth, — The defendant’s solicitors were not summoned to'appear before the commissioner. But it appears that the solicitor on record was summoned, which, is sufficient. So this exception is overruled.

In this case another point was made at the hearing, which Í do not see in the exceptions. The executor has charged 15800 per year for the two last years of his execu-torship for overlooking in his capacity as executor ; no overseer being actually hired. Is he to be allowed such charges ? For the first of these two years, the court will allow him the. charge, because his commissions for that year were s+ruc-k out; but for the last of these years, in which he lias been granted commissions, the-court will not also give him overseer’s wages : Because, unless an executor has actually hired an overseer, commissions and overseer’s wages ought not both to be passed to his account. So that the commissioners report stands confirmed, as far as above stated. And as the defendant appears to be considerably in default in this case, let hi.npav the costs of this suit.

(Signed) - W. B. James.

There was no appeal from this decree.