[Present, Chancellors Uutiedge, James and Thompson.]

#### Benjamin and Charles Webb, *vs.*Mary Bellinger, Executrix of Edmund Bellinger, Executor of Benjamin Webb, deceased.

The court at a first hearing- decreed, that the executor riot having tendered satisfactory accounts, should be charged with *101.*per an-num. for each laborer of the "estate,- excluding three years of the war. *483when the enemy invaded the country, and little could be made, and *less*preserved. ',

MAY, 1807.

The executor not chargeable for the loss of slaves who deserted during the war, or were otherwise missing-; nor for suffering the ¡machines to go to ruin, and other acts, which sounded in damages.

On a re-liearing, the court reversed the first part of the decree, on the ground, that although the executor’s accounts were not entirely satisfactory, the charge, of 10Z. per hand would make too great a difference between the amount which that rule would produce againsy the executor, and the amount he actually made on the plantation as stated in his accounts, which would be improper, as the executor’s accounts had not been falsified, or satisfactory proof given of gross negligence, or of the executors wasting the assets.

THE complainants filed tbeir bill in this case originally against Edmund Bellinger, executor of Benjamin Webb, deceased. ' .

Their bill stated that .complainants are the sons, devi-sees, and legatees of Benjamin Webb, deceased: that tbeir father being possessed of a considerable real and personal estate, made his will, dated 13th December, 1775, thereby devising and bequeathing in substance, as follows: to his wife, Ann Webb, her jewels, and all his furniture, (except silver plate) an- annuity chargeable on his estate, some smaller bequests, and twenty-three negroes, with their issue, for ever *;*with the liberty of planting on hi¡? lands with her negroes during her *widowhood;*all which are in lieu of dower, and of every other claim. To his son Benjamin, all the silver plate, and the gold watch that: was his mother’s. To his son Charles, his gold watch.- — - To his two sons, he gives the residue of his estate as tenants in common to be equally divided when bis eldest son is of age ; with other provisions for other children, if any should be born, which did not occur. That the shares be respectively improved; to the utmost, and that his sons be educated respectively out of the profits of his estate until of age : and if any of the children should die before attaining 21 years, or day of marriage, their sharesto go to the -nurvivors. That the executors are authorized to take uis, *484money at interest, or to encumber the estate for the payment of his debts, if he owes any at his death.

The testator, Benjamin Webb, appointed his wife Ann, during her widowhood, executrix, and Charles Pinckney,; Thomas Hutchinson, W. Logan, and Edmund Bellinger, jun. executors. The testator died in February, 1776, leaving his will of force, and having no other issue than complainants.' That Charles Pinckney proved the will on 15th February, 1776,' and qualified : that Edmund Bellinger qualified in May following: that Charles Pinck-ney died in October', 1732, and never intermeddled with the planting interest: that Edmund Bellinger had the entire management of the planting interest from the death of testator, until February, 1789, when he delivered the estate to Benjamin Webb, and to Daniel D’Oyley, as guardian of the son Charles. That an appraisement of the personal estate, made in November, 1776, amounts to 74,684/. old currency. That complainants have applied frequently to Edmund Bellinger for an account of their father’s estate, and have been refused.

The bill charges gross mismanagement and misconduct on the part of the. executor ; an actual diminution of the negroes of the estate, and a deterioration of the estate in other respects. The'bill prays for an account and settlement *;*and such other relief as can be given.'

The defendant put in the following answer. The answer admits that Benjamin Webb made his will, and thereby devised bis estate as set forth in billthat he appoint-' cd the executors named in the bill, and died at tb.e time set forth, without altering bis-will. That Charles Pinckney qualified and appraised the estate as set forth. That defendant qualified and *took*the direction of the planting interest as set forth. That’ defendant used his best exertions to render the estate productive during his administration, and ’employed the proceeds for the benefit of the estate, as will fully appear by his account filed : in which account current, credit is given for every article disposed. *485of by defendant, except the following quantities of rice, to wit: one hundred and twenty barrels of rice shipped to England for Benjamin Webb, one of the complainants ; twenty-five barrels of rice delivered to Norris & White, to pay bill in favor of said Benjamin Webb; twenty-three" barrels sold, (but never paid fori to the follow ing persons: Charles Cope, commissary of troops in Georgia; Andrew Fitzsimons and David Duncan, four barrels delivered to .Benjamin Webb *;*and for the following parcels of rice sent to Charles Pinckney, one of the executors, (for which perhaps he has accounted, or ought to be accounted for by his executors) 96 barrels in February, 1778 ; 99 barrels in April, 1778, and 61 barrels in Sept. 1779.

Defendant does not doubt the correctness of the ap-praisement, but cannot declare that it is just, since be qualified some time after Charles Pinckney. That all the ne-groes who came to his hands, who did not die nor runaway, Were delivered by him to the legatees. That the camp fever was carried into the plantation by the negroes of the estate, and that many ranaway during thé *revolution;*but Ire does not recollect how many; none of them were sold. That defendant conceived himself fortunate m retaining what he did, when he considers the devastation which took place during the war, That defendant having hired overseers, does not conceive himself liable for the deficiencies of crops, but believes that under his care better crops were made than by testator. This opinion is grounded on a statement of what the testator made for four years before his death, when he directed his own affairs in peaceable times, and before the widow’s share had been taken away : that no blame can fall on defendant if the expectations of complainant are not realized. Defendant denies that he ever refused to account, but that he shewed complainants his books, gave them copies of accounts, and that there is a balance due to defendants by the estate. Answer concludes as usual.

Before the cause could be brought to a hearing, Ecb *486mund Bellinger, the executor departed this life, where» upon a bill of revivor was filed by the complainants against Mary Bellinger, the widow and qualified executrix of the. last will and testament of the said Edmund Bellinger ; and the bill prayed for the same relief as in the original bill.

The defendant Maiy Bellinger, admitted the bill filed against her late husband and testator, and his answer thereto ; and his death, and her qualification, as executrix of his last will; and she prays that the answer of her late husband may be taken as her own, adding thereto the additional account therewith filed.

The cause was afterwards referred to the master, who having examined the accounts, and the witnesses produced on both sid-'s, and having heard the counsel at his chambers, made the following report to the court:

That the late Benjamin Webb, Esq. father, of the complainants, was in his lifetime seized and possessed of a considerable real and personal estate, in this state, and departed this life on or about the 18th day of February, 1776, leaving alive a widow and two sons, to whom he devised and bequeathed his real and personal estate in such manner and, proportions as will appear by his lastf will & testament bearing date the loth .day of December, 1775, which he left in full force and virtue at his death, a *copy whereof is*filed as an exhibit in this case.

That thq said Benjamin Webb appointed several persons executors of his last will and testament, of whom only Colonel Charles Pinckney and Edmund Bellinger, qualified thereon, the former on the 15th day of November, 1776, and the latter on or about the 15th day of May, 1777. That the said. Colonel Charles Pinckney resided generally in Charleston, and died on the 22d of September, 1782, and Edmund Bellinger resided usually on his plantation on Ashepoo, opposite to and in sight of the plantation of his testator.

That notwithstanding the said Edmund Bellinger did net qualify as executor of the said will until the 15th of „t$iay, 1777, he acted upon the estate of the testator in *487Some particulars, and had seme direction and superinten-dance over the same, and hired out some of the negroes of the estate, and kept a memorandum book in his own hand *J 1*writings in which many charges relative to the estate were made as early as the month of March, 1776, which was within one month of the testator’s death. And the exhibit filed with the answer of the said E. Bellinger, commences his account on the 18th May, 1776: but it does not appear by any evidence adduced, that he sold any of the crops until he qualified, and he appears to have continued in the management of the estate of the said Benj. Webb, until he delivered up the same, one moiety to one of the testator’s sons, Benjamin, in the month of January, 1788, and the other moiety to Daniel D’Oyley, for the testator’s-younger son Charles Webb, in the month of February^ 1789. That an inventory was made of the personal estate of the said Benjamin Webb by Col. Charles Pinckney, on the 16th November, 1.776: whereby it appears that the same consisted of a full gang of negroes, to wit: two drivers, eight house servants, sixteen tradesmen, fifteen sawyers, and others of all descriptions, amounting in the whole to one hundred and seventy two persons ; and also of furniture, horses, cattle, and various other articles, amounting in value to the sum of 74,684/. of the then currency, exclusive of many debts which must have been then due to the estate, and including a crop of rice, of corn and peas: and the late Mr. E. Bellinger, the other executor, states in his answer, filed in his life time, to a bill then pending, that he had no reason to doubt the correctness of the inventory. That Mrs. Webb, the widow, of the testator, was an executrix, and resided on the estate until she married in April, 1777 ; but she never qualified as exe-¡ eutrix. That at the time of the surrender of the estate by the said E. Bellinger to the heirs, the negroes of the estate then- amounted to one hundred and thirty-two'persons, whereof there were six tradesmen, two house servj ants, four sawyers, and two drivers, who were appraised *488at the sum of 48,209/. old currency, making a difference the two appraisements of 26,475/. currency. But that it also appeared in evidence, that from 1791, to 1798, ne-groes in the parish of St. Bartholomew’s (of which CoL Doyley was tax collector) rather diminished than increased. That to account for the diminution of the number of the negroes of the estate, the defendant went into proof, that a number of the negroes ranaway, or were taken off by the British troops, during the war, and that although some of them returned, a number died of the camp fever, which was introduced by those who returned; and I am of opinion that losses were undoubtedly sustained from these causes. But the extent could not be ascertained front the testimony. That the debts of the testator at the time of his death, amounted to 37,649/. *6s. Sd.*currency, including the demands of the.executors themselves, tipon the estate, which however are denied and contested by complainants,. That by the will of the testator, .his widow, Mrs. Ann Webb, was entitled to twenty-three negroes bequeathed to her absolutely in lieu and bar of her dower. And also to a residence on the plantation and a right of cultivating the lands of the estate with her negroes, and to an annuity of 400/. during her widowhood, and no *longer;*all the rest and residue of the estate being devised and bequeathed to the complainants, equally to. be divided between them.

That Mrs. Ann Webb, the widow, intermarried in the month of April, 1777, with Joseph Glover, Esq. who then drew off from the estate, the negroes which his wife was entitled to. Whereupon she ceased to have any further fight or claims upon the estate.

That upon examining the circumstances of the estate in question, it appears to have been situated on Ashepoo river, upon which the following crops were made. several years preceding the death of the testator, which are stated fot the purpose of enabling the court to form a comparison with the crops afterwards accounted for ;

*489*ín the year*1 769, *there were made*S.iH *barrels of Rice,*

70, 327 ditto.

71, 254 ditto.

72, 249 ditto.

73, 283 ditto.

74} 193 ditto.

That the master has hot beeii able to ascertain with pre-cisión the amount of the crops of the estate generally, or in each particular year, but that on this subject he begs leave to refer the court to the following documents, together with the answer .

1st. The accounts of the defendant’s testator, filed with, his ánswer to the original bill in this case; ■

And 2d, An exhibit which the defendant now offers, containing various additions, and including sh"h part of the crops as are alleged to have passed into the hands 'of Col. Pinckney, the executor of the defendant’s testator.

It was insisted upon by the complainants, that on account of the alleged defectiveness and imperfection of the accounts, that the master obght to allow certain coiiipen-sation to the heirs of the estate of the late Mr. B. W ebb, proportioned to the number of working negroes of the estate, as had been heretofore allowed in sundry cases, where the accounts of the executbrs or administrators have been defective or imperfect; But the defendant insisted no such allowance ought to be made as they alleged that the accounts of the administration of the eiecutor Mr E. .Bellin-ger, were sufficiently full, fair and satisfactory Under the circumstances of the case, and that ho such allowance as was claimed by complainants had ever been made by the court, except in cases of gross defectiveness and imperfection : and I submit to the court upon the whole of the case whether any such extra allowance ought to be ihade, which when decided, will enable me to make up a final report on the account. That it is impossible for me under the present circumstances to state an account to the fcourt, or to make up a full and final report upon the accounts of the executor, because the special order and di*490rection of the court itself is requisite on various points of the cause as well as those brought to the view of the court foy ^is report, as those formerly reserved by the court» And I submit to the court the propriety of appointing accountants for the purpose of making up the account whenever the court by its special orders and directions on the disputed points shall enable a statement to be made.

I beg leave also to submit to the court the evidence of many witnesses, who were examined by both parties, in my presence, and reduced to writing by the counsel who agreed therein, which evidence applies to the questions that were immediately before me, and also to the points reserved by the court.-

The cause came to a hearing, and the following testimony was given before the court.

Mr. Tunno testified, that he sold Mr. Edmund Bellin-ger, in December, 1785, twenty-eight negro slaves,-at *801.*each', amounting to 2240/. payable in 1, 2 and 3 years, all of which, withúnterest has been since paid, but about 200/. which is still due.

Mr. Monies, testified that Mr. Williman purchased on the 14th March,-1803, for 3000/. the plantation which had formerly belonged to Mr. Benjamin Webb, deceased, at Ashepoo. It had been sold 5 or © years *before by the*witness, as attorney of Mrs. Hartley,- a creditor of Webb’s estate, for the same price to another person,- who not- being. able to pay for it, a second sale was made,- and Mr. Williman became the purchaser, on a credit of 1, 2 and *3*years*

Mr. Josiah Smith testified, that he and Capt. Hutchinson managed the estate of Mr. Austen for many *years;*rice and provisions were the objects of culture, from 1764 to 1790. There were atan average, about 40 effective la-bourers, out of from 67 to 77 slaves on the plantation. They made on an average, 280 barrels of rice per annum, besides their provisions. The estate of Austen was net plundered by the British troops during the war, nor did *491any of them runaway to the British. The estate belonging to persons resident in England, it was protected as British property. In 1781 or 1782, some rice and com were used by American troops, but it was paid for. The slaves of that plantation have encreased; but a few of the encrease were purchased. Webb’s lands were on the north side of the river, above and below the bridge where the main road crosses the river, and is chiefly tide land. Austen’s lands were adjacent to Webb’s, but lower down the river. It consisted of *50*acres of tide land, and 210 acres of Inland swamp.

Mr. Carrol testified, that he was agent for Mrs. Hart-ley from 1794 to 1796. He managed for her some of the lands of the estate of Webb, which she had purchased; the Inland swamp. He made no crops the first two years with t.wenty workers. Sandy Run, which emptied into the upper part of this plantation, threw its waters on it in such a manner that they could not be drained off. The tide ebbed and flowed up to this land. Yet it was very difficult to drain.

Mr. Gato Fields testified that he knew the lands of the estate of Webb, planted by the executor. His knowledge however is general. He has never been over them. He does not think them in general safe, though part of them may be so.- He knows of several crops lost on' them, by the seasons. Mr. Bellinger built a Schooner for himself ¡on the lands of the estate. Mr. Bellinger’s house was burnt about ten years before, (in 1797.)

Mrs. Hartley. Mr. Bellinger built a Schooner on the estate’s land. It was said to be for the joint use of the estate and himself. She understood the vessel was sunk by the British. The vessel was said to have á cargo of rice on board, whose she does not know, and never returned. The slaves of the estate and of the executor both worked on lands of the estate.

Mrs. Townsend testified that Mr. Bellinger’s house was burnt, she thinks in 1795. She lived in the neigh-bourhood, and saw the ruins soon after. Mr. Bellinger *492was absent from home. She believes none of his family were at home. His daughters were with witness.

Mr. Watson, accountant, testified that among the papers of the estate, was a bundle, nearly reduced to powder ¡¡ as far as they could be deciphered, they appeared to rílate to the estate of Webb, and to consist of receipts, bills, &c. &c?

A great deal of other testimony was taken in the cause, ■phlefiy in writing, and before the master, on the reference fo him. This was referred to generally in the arguments of the counsel, and by the court in it? decree.

Mr. Desaussure., Mr. Parks®- and Mr. Pringle, for the complainants,

argued that the lands were of a good quality, and productive *\*and that good crops were made by the testator in his lifetime. Th'at the crops made by the executor were much inferior to those made by the testator, as well as by those made on the adjacent estate of Austen, whose lands were not better, and indeed having-less of tide swamp for cultivation. ''

The evidence of Mr. Godfrey, Mr. Bates, Mr, Kenny, Mr, W. Pinckney, Mr. Girardeau, Mr. George Beilin-' ger and Col. Doyley, were referred, to, as to the product-» iveness of the lands of Webb’s estate.

The comparison of the crops made by the testator (as ‘shewn by the sales extracted from his factor’s books) and those made by the executor, as seated in his accounts, shewed, as the council contended, such a dissimilarity, and inferiority, as could be explained only by the supposition of great negligence, and laches on the part of the executor. That none of the debts of the estate were *paid;*and great sales, both of real and personal property of the estate of Webb, have been obliged tq be made to extricate it from debt 5 whilst the executor who had a much smaller estate in the same neighborhood, with fewer slaves and worse lands, mad.e actually, as appears by the evidence, much larger crops, and has been able to increase his personal'es-' tate considerably by purchases.

*493That the injuries done to the crops during die war, cx-tended only to tbe years 1779 and 1780, and never were to-*tel:*and that the loss of slaves by desertion to the enemy, and by deaths, (though some was admitted) was not stated with the smallest pretensions, or even attempts at accuracy- — and could not account for the great diminution of the number of slaves after so many years of peace, of health, and of consequent increase.

That the charge of gross neglect was supported, and even extended by the proofs; that the executor was in the habit of drawing off the slaves of the estate from their regular labor at improper and critical seasons, for purposes of no value to the estate : and sometimes as was charged for his own purposes ; so that if the labor was returned by the exeeutor as alleged, it could not redeem the injury-done to the crop of tbe estate.

That the rice machines of the estate were allowed by the executor to go wholly to ruin, though there were six or seven carpenters among the slaves. This increased the labor of the slaves, made them more feeble, and kept them employed in getting out the crop for market, which ought to have been prepared by the machinery, and pre-v vented his improving the lands by their labor, by ditching and banking.

That the executor offered in payment for his own debts jome part of the crops of the estate, as; appeared by his letters of the 3d February, 1786; 5th September, 1783 * the 7th February, 1787; and 5th March, 1788; although the estate was in debt, and paying interest on its debts.

That the executor employed the sawyers of the estate on his own lands, and it is presumable for his own use, as ^o credits are given for their labor, and but small credits áre allowed the estate for lumber, which was formerly a source of great revenue to the estate. That the income of the estate was almost wholly applicable to the purpose of paying the debts, as little or nothing was expended on the maintenance or education of the complainants, till a ver\£ fhort time before $ie. estate was delivered tip by the exq* *494cutor, as appeared by the testimony of Gol, Doyley, and other witnesses.

That inferior and worthless overseers were employed by the executor, who did not remedy his own neglects.

From these facts, the counsel contended that it appeared there had been great neglect, and mismanagement by' the executor; and that his'accounts were not sufficiently exact, full or proper, and that therefore the court would assume as a standard for the responsibility of the executor, a rule sometimes adopted in such cases, by fixing the nümber of laboring slaves, and allowing the heirs a pro-,, per annual compensation by way of hire to be paid by the executor. The court had done this in the casé of May-rant vs. Da.vis, executor of Neilson, and Lowndes and wife vs. Read, as well as iii other cases.

That with respect to the neglect of the executor, and the injuries resulting from it to the estate, it was completely in the power of the court to examine into it, • and give relief. If this should not be done, the heirs would be re-mediless. There was no action at law which could give them, redress. There are no cases shewing such relief given at law. -

Mr¿ CUeves for deféndent,

argued, that tjhe quality of the lands of the estate was inferior; or at least that *the*culture of rice was not so understood and practised in the time of the executor, as to- give to' lands flowed by the tides, the decisive advantage it has since obtained by new discoveries in the culture of rice.

That the quality of the soil of Austen’s estatewas superior, or it was more manageable as appeared by the evidence of intelligent witnesses. "

That the laboring power or productive force of the estate was greatly diminished in the hands of the executor by the death of many of the- slaves by the camp fever, in-, troduced into the plantation by the soldiery, and by the desertion to the enemy of a very great number of the .slaves Who were never recovered. He had thus a very inferior force to work the lands to that employed by the testator.— *495Besides, the widow drew off the slaves bequeathed to her, which greatly weakened the gang. And there were some slaves of old Mrs. Webb who worked on the plantation in' the testator’s lifetime.*. All these things made any compa-listín between the cropá of the testator,* and of the executor, an unfair tesft of the management of the latter. But that in reality the difference was not very great, (after the proper allowances) as to the quantity of rice made for market ; and there was no difference at,all in the annual average value of the productive labor of the alavés actually employed by the two different parties^

That the enemy were so perfectly masters" 6f the sea coast during part of the year 1779, the whole of 1780, and part of 1781, and they so ravaged and plundered the plantations, that iio crops Could be- expected to be jnade in those years. It was as much as could be done to make provisions. The evidence is'clear that the British troops frequented this plantation,- and drew supplies from it.

That with respect to the laches attributed to the executor, in suffering the rice machines to go to ruin, and in neglecting to make good crops, these could not be matters* of account. That these are questions of damage founded orith'e case, and not even on an implied assumpsit; it was improper therefore to refer such questions to the master *y*they are difficult and important, and the Court itself sometimes will not determine them, but will send them to a jury.'

The court took time to* consider, añd afterwards Chancellor J AMES delivered the decree of the court:

. Complainants in their original bill, which has been revived in the usual form, have called upon Edmund Beilin-ger,; deceased, as one of the executors of Benjamin Webb, deceased, the father of complainants, for an account of all his transactions with the said estate, for an account of the profits of the real and personal estate, and for all the property contained in the inventory returned by the executor to the ordinary’s office. Defendant, in his answer, has accounted for the crops which he made from the year *496when he first took upon himself the management oí' the estate as a qualified executor, until the year *1779.*Bur in the years 1779, 1780, and 1781, he renders no account, of crops; stating as a reason therefor the well known unsettled state of the country during those three years, when ithis state had become the seat of the revolutionary war.— From the year 1782 till the time of his delivering up one moiety of the estate to the complainant Benjamin *Webh:*which was in January, 1788, and the other moiety to Charles Webb, which was in February, 1789, the defendant accounts for certain crops which are those complained of, and for lumber sold. As to the property, contained in the inventory, more especially the negroes; defendant accounts for the deficiency of their number when delivered up to the heirs, compared with that contained in the inventory, by stating in his answer — “ that many of the testate’s negroes died of the cáihp fever, and many of them fanaway to the British : but how many of each, he cannot irecollect; but that none of them were evter sold, and that he thought himself fortunate in keeping what negroes remained.”

Such being the substance of the bill and answer, the accounts were referred to the master, who reports that he is *At*a. loss for any principle upon which he is to settle them, and prays the court to establish such as may be his guide. Infixing such principles for the master, the court have agreed to place out of the question certain minor charges* made by the complainants, such as letting the rice machines go to ruin, Sec. as sounding in damages alone, and to take into consideration only the alleged deficiency in the crops; and in the number of negroes' delivered lip to the heirs; And first* as to the deficiency in the crops. Upon this charge the complainants gave evidence of the crops made by the testator Benjamin *Webb,*for the six years preceding his death ; and of the crops made on a plantation in the neighbourhood by the executors of Austin / and from á comparison of these, with the crops of the estate, made by Edmund Bellinger, endeavoured to draw an in*497ference that the executor Bellinger was guilty of such gross negligence, us to make him liable either for the alleged deficiency, or for tin hire of the negroes. But the evidence in neither view affords a satisfactory guide to the court. In the first place, tbe crops of the testator Benjamin Webb appear to have d. creased annually, which cannot well he accounted for, but for some deterioration in tbe lands planted under the culture of that day : and if so, ibis cause of the decrease of crops must have increased annually, while the lands were worked by Edmund Bel-linger, since no improvements were made in his time.

Next, as to the second ground of comparison, it appears from the evidence that tbe estate of Austin did not lie in such an exposed situation as that of Webb, the former be-*iag three*miles off, and tbe latter lying on the main road leading from Charleston to Savannah, which was much frequented fay the hostile armies. That the lands of the estate of Austin were inland swamp, which in those days of the infancy of rice culture, was deemed much better, and indeed produced more tban tbe tide lands of Asbepoo, of which the estate of Webb consisted : and that John Moultrie, who was well known to be disaffected to the American cause, and to possess much influence among tbe British, was interested in the estate of Austin, and that this estate was consequently highly favored by the enemy. Such was the evidence offered upon this ground. But to have made the comparison satisfactory, testimony ought to have been • adduced to shew what crops Were made on lands situated in a similar manner with those of Webb, as to soil, tbe pitch of the tide and exposure to the depredations of the enemy; but in this instance an estate appears to have been selected, differing from tbe one with which it is compared in all these essential circumstances. Besides, if evidence had been produced to shew what kind of crops the defendant Bellinger made for himself, it would have afforded a pretty good rule of decision, since so far as these were good, he might have been charged with neglect in not doing so well for the estate as for himself; and *498so fár as they were Bad, he might have been exculpated. — ^ Some general testimony has been gone into to shew that he was a very-bad planter, but this has not descended to particulars so as to shew what was made for himself in each year, and thus to afford a certain rule by which we could compare his own crops with those made by the estate. Under this view of the case, the court are left in a state of uncertainty ; .for while on the one hand we profess ourselves not to be satisfied with the comparisons offered to us, on the other we are not altogether content with the ci-ops which have been made by Mr. Bellinger. Therefore being thus situated, we think it will be more safe to resort to the general rule formerly adopted in the ease of Mayrantvs. Davis, executor of Nelson, and to allow the complainant negro hire. But in the calculation of this, we cannot think it equitable to charge defendant with such hix-e, during the years 1779, 1780, and 1781. In thefhst year it has been proved that the plantation was very much distuihed, and that sixty four negroes went away in. one night,-during the month of May, which is a very critical time for the making of a rice crop. In the second year, it is notorious that the British overrun the whole of the lower country, and in the third year they were still in possession of it; and we find that nothing was allowed for that year, in the case of May rant vs. the executor of Nelson, and we do not see why the same rule should not apply in this case. Moi'eover, these were years of general confusion and calamity, in which, if any thing had been inade, there does not appear any evidence to shew that it could have been disposed of in market; and in which, all but the particular friends of the British thought themselves fortunate if they could raise provisions, and save their negroes from being carried off; but even in that many of. our citizens entirely failed. For all these reasons, we are of opinion that it would be rigorous to charge the defendant with negro hire in those three years.

The second ground of consideration is, the alleged deficiency in the number of negroes between those named in the inventory, and those delivered up to the *499heirs. To this charge the defendant Bellinger has answered as we have seen above — “ that he thought himself fortunate in beeping what negroes remained,” &c, and Mrs. Townsend has stated in her evidence, “ that she knows of herself that many of the negroes of the estate went off with the British, and that she heard her mother often count them over, and say that sixty-four had gone.” This testimony, when coupled with the answer, is satisfactory to the *court;*and under all these circumstances, we are of opinion that the complainants should be contented with what negroes were delivered up to them.

Let the accounts therefore be referred to the master to ascertain the negro hire from the year 1782, inclusive, till the year that Edmund Bellinger delivered up the estate to the complainants respectively;, charging the .defendant with such hire at the rate of 10/. per hand for the number of working hands employed in each year, taking that number at sixty workers, unless defendant can shew that they were fewer on the plantation. But the years 1779, 1780, and 1781, are not to be included. Let him also deduct from the amount of the negro hire, the monies credited to the estate by the executor Bellinger, for the annual sales of crops,.and other matters, as stated in the accounts produced by the defendant.

The defendant being dissatisfied with this decree, Mr. Cheves presented a petition for a rehearing.

The humble petition of Mary Bellinger, the defendant in the above cause, sheweth :

That your petitioner finds herself greatly aggrieved by a decretal order of this honorable .court, made in this case in April term last; whereby it is decreed that your petitioner shall account as executrix of her testator, who was executor of Benjamin Webb, deceased, for the hire of the negroes of the estate of the said Benjamin Webb, from the year 1782, inclusive, at the rate- of 10/. per working hand per annum, taking the number of working hands at sixty, unless your petitioner could shew that there were *500on the plantation,' whuvby your petitioner’s testator will be obliged to pay in addition to the. crops actually made for those years, 8864 *8s. 8d,*and in addition thereto, according- to the principle of Mayivnt v. executor, of Nelson, a sum in interest equal to 2,0704 making together the sum of 29564 8*’. 8d. which will be in a great degree ruinous to the estate- of her testator, her children and herself, and which is greati r than the whole value of the personal estate of the said Benjamin Webb, his debts deducted, when the same was appraised. Your petitioner therefore cannot doubt but that vour honors will indulge your petitioner in an inquiry into the grounds of this decree, in its principle of great importance, in its amount great, and in its relation to your petitioner and her children, all in all.

Your honors will be pleased to observe that the transactions which form the subject of consideration in this case, commenced at a period when the majority of your honors now in the fullness of years and wisdom, were yet in early youth. That the country has in the mean time suffered the effects of a calamitous war, and the ten fold evils of a civil contest, in which public records have suffered, but wherein in scarce any instance have private documents been wholly preserved. That her testator who was the actor in these transactions, was sorely afflicted *by*diseases for many years before his death, and unable to attend actively to business ; and that he has many years since paid the debt of nature, leaving his children in infancy, and, your petitioner always utterly unacquainted with accounts and unfit for business, wholly ignorant of this case, her testator haying in his lifetime suffered the loss of many papers by the destruction of his dwelling house by fire. And finally that under these numerous circumstances of disadvantage, your petitioner is called to this rigorous account. But from this detail your petitioner does not mean to contend that the complainant shall be denied a fraction of the claims which he can establish according to law, or that the rules of law or of evidence should be relaxed or ■varied in relation to her *case;*but it will strongly, no *501doubt impress on your honors minds thv. propriety and necessity of giving her the protection oí those rules, the rules of right reason, and the only sure indices of truth,

Your petitioner has been advised that the principle on which the complainants have endeavoured to charge the estate of her testator is in the language of their counsel, for gross negligence in the management of the estate. Now your petitioner humbly submits to your honors that your honors have not even suggested the existence of such negligence. But on the contrary, your honors have been pleased to say only, that you “ are not- altogether content with the crops which have been made by Mr. Bellinger,” from which it is clear that your honors did not mean to charge the defendant’s testator with “ gross negligence,” which would be utterly inconsistent with the well considered expressions in the above sentence and in divers others in the said decretal order. But if these words be expressive of your honors opinion, which your petitioner cannot doubt, as they are confirmed by the whole tenour of the decree, and not delivered through inadvertence, which there is no reason to believe, it will most clearly, follow, that the grounds of “ gross negligence” is not only not admitted, but denied by your honors. Your petitioner is also advised that there is great reason to doubt whether it is not departing from the principle of the decision of Mayrant v. Ex’ors. of Nelson, to predicate the liability of her testator on any species of negligence m the manager ment of the estate ; the principle of that decision- being as your petitioner has understood, and as the decree itself seems to prove, the failure of the executor to account with reasonable accuracy for. the actual crops of the estate, and. not the insufficiency of the crops, which seems to be a matter not in the nature of account, but sounding in damages, as much as the omission of any agent, public or private, to do his duty with fidelity, and with such skill and ability as the law requires.

But your petitioner is further advised that admitting the correctness of the principle, still the complainants ac*502cording to the rules of evidence as well as the plainest die-* tates of common sense & common justice, having founded their claim on “ gross negligence,” were bound to prove it. And that it was not at all incumbent on the defendant to discharge herself till evidence sufficient to satisfy the mind of the court and to authorize a decree, had been adduced by the complainants. Now if the evidence be adverted to, it will be seen that none such does *exist;*and the exposition thereof by your honors in the said decree has demostrated the fact.

The most favourable view for the complainant, of the testimony, admits of no stronger inferences than that Mr. Bellinger wanted ordinary judgment and skill, and failed óf reasonable success; while even these grounds are controverted, and as your petitioner thinks, fully disproved as to their influence on the crops of the estate, by very strong-testimony ; for it appears from the testimony of all the witnesses, that as the Ashepoo lands were then cultivated, it was not practicable on them to make a good crop, and the crops of Mr. Webb himself appear to have diminished every year, which as youi- honors remark, is an evidence of the increasing deterioration of the lands.

That even these crops were not equal .to those for which your petitioner’s testator has accounted, nor nearly equal, though adduced to prove neglect in your petition-,er’s testator: that after the management had passed into the hands of Col. Doyley, (talcing the price of rice to be the same always, as the rise or fall of the markets could not increase the produce of the land,) the crops were not nearly as great as those made by your petitioner’s testator *;*and even at the high prices at which some of the latter crops sold, not equal in pecuniary amount. Thus then it clearly appears that there is not the shadow of pre-tence to say that there existed gross negligence, and that •the weight of evidence is against the charges of a want of ordinary skill and judgment, and reasonable success.- And so your honors have declared when you say, (stating forcibly, and not less j ustly than forcibly, the inapplicability and *503Insufficiency of «.he complainants proof,) that the complainants endeavour to draw an inference from the testimony, that the executor was guilty of “ such gross neglect as to make him liable for the alleged deficiency (in the crops) or for the hire of the negroes, but that the evidence in neither view affords a satisfactory guide to the courts” These are the words of the decree. Now if the evidence be shortly stated, which shall be done without gloss or coloring, so far as it relates to the crops actually made by Mr. Webb in his lifetime, by your petitioner’s testator, & by Col. Doyley afterwards, it will appear that your petitioners testator made greater crops than were ever made, according to any testimony before the court, oii the lands 6f the estate.'

In this view, for the conclusive and incontrovertible reasons given by the court, the years 1779, 1780, and 1781 are omitted.- Statement No. 1, hereunto annexed wilí shew that Mr. Webb made during six successive years but $>26 31 cents per hand — while it will appear by reference to statement No. 2, that your petitioner’s testator made during eight successive years, (excluding 1779, 1780, and 17S1, as aforesaid) 37 dolls. 18 cents, or nearly fifty per cent. more. • Statement No. 3, gives a view of the years to which the decree relates — which, though it excludes two of the largest crops, yields 32 3-4 dollars per hand; and by reference to statement No. 4, it will appear that for two years under the management of Colonel Doyley, there was made but $22 53 cents per hand, taking the rice at a fixed price, and by the actual sales, only g21 57 cents or nearly *73*per cent, less than the crops, made by your petitioner’s testator. And by the same statement, it will appear that with part of the negroes under the management of Col. Doyley, there was made during four successive years, taking the rice at a'fixed price, only, thirty-one dollars per hand, less by one sixth than the crops of your petitioner’s testator : and taking the result according to the high and therefore unusual prices of rice, there was made no more than $37 7 cents, per hand, which *504is less than the crops of your petitioner’s testator. Your petitioner would then inquire how, according to justice, jaw or evidence, her testator is to be charged with gross negligence, when it appears with mathematical certainty that he did more than was effected by the zeal of personal, interest, or the exertions of devoted friendship ? Why under these circumstances, severe and ruinous penalties are to be imposed upon her testator’s estate, herself and her children i Nay more, why she shall be obliged to suffer these penalties, not only without proof, but against evidence. The issue is, “ gross negligence, or not ? It is legally incumbent on the complainants to prove their case satisfactorily : but your honors have said, and by the best reasoning proved, what has been otherwise, demonstrated, that there is no satisfactory evidence on the subject ? — ■ Will it not then inevitably follow that the decree ought not to charge your petitioner’s testator ? Your petitioner therefore prays your honors to grant a rehearing of the said cause.

Mr. Cheves and Mr. Gaillaed for the petitioner, Defendant in the suit,

urged the arguments used at the former hearing with renewed force and ingenuity, and added other arguments. They contended that the accounts filed by the executor had not been falsified, and ought to be relied upon as made by the person chosen and confided in by the testator, and sanctioned by his oath, until shewn to be false or imperfect by full testimony. That so far from the accounts being falsified, it appeared that the executor had given credit to the estate for all that had been made on the plantation, and that by the comparison of the crops accounted forby the executor, compared with those made by the testator himself in tranquil times, and with his own *505perpetual superintendance, the executor bad done better, or at least as well as the testator; as appeared by the comparative statements produced to the court.

*504It is the course of the court to hear the argument on the merits, on the motion for the rehearing.

The cause was argued on the motion for a rehearing before Chancellors Rutledge and James.

*505That with respect to the supine neglect charged against the executor, it was not so made out in proof as should induce the court to depart from the accounts, which was the only regular mode of settlement, and to assume an arbitrary rule, charging the executors with a fixed annual sum for each worker, without any proof that so much had been made. But that-in fact such charge of negligence souiided in damages, tvhichwere not within the jurisdiction of the court; but was triable at law, where other defences, and even the statute of limitations could have been set up in defence; Thai in the case of Mayrant v. the Executor of Nelson, no accounts were kept, and the court was obliged to resort to an arbitrary rule.

Mr, Desaússuee and Mr. Parker, argued for the defendants,

and contended that the gross negligence in the management of the estate was sufficiently made out by Col. Doyley’s testimony. And that where it appeared to the court that gross negligence had existed, so that much less had been made, than might be expected from reasonable diligence, there the court had a right to give redress in some way or other. And there appeared to be no other way so correct as the rule adopted by the court in the case of Mayrant v. the Executor of Nelson, ánd in other subsequent cases, to fix on a reasonable sum, such as might be considered the average product of the labourer, in the cultivation of the soil, and to charge the executor with that. And that there was really no substantial difference between cases where no accounts were kept and filed by the executor, and where they were so imperfect that no reliance could be placed on them. In either case, the court ought in justice to the children of the testator, to resort to the other standard, which was a fair and moderate one. That the objection that complainant rested altogether on his allegation of.gross laches in the management of the estate, which *506sounded in damages, was unfounded; for though this wa's-urged and relied on, yet the complainant insisted on the incorrectness of the accounts, and the presumption that every thing was not accounted for, • arising from the executors 0g-crs 0f tj¡e rjce 0f tj,e estate in payment of his own debts, and from other circumstances which were proved.

That this sort of neglect in accounting did not sound in damages so as to require an issue at law, for wherever an executor acted improperly, this court could make him accountable and liable.

Suppose he sold negroes of other property of the estate, and gave no credit for the price, surely, though it might be.said this sounded in damages, this court could give relief. Suppose he neglected to sue and recover'good debts due to the estate, he could be-made accountable for this gross negligence ; and so in a thousand other- instances. Nor could the'legatees of Mr. Webb have maintained a suit at law against the executor. There is no example of such suit brought or sustained at law. The utmost that could be done, where this court could not give redress,'1 would be to direct an issue, but retain the cause.

The accounts actually filed by this executor were imperfect, for corrections and additions had been made during the examination. The court had therefore done right in abandoning them, as not sufficiently accurate to be relied upon; and in resorting to a reasonable standard of productive field labour, and charging the executor with that sum. That this imperfection in the accounts did not result from the loss of papers relative to the estate, for though the executrix proved the burning of the house of testator, yet he himself, when he filed his answer, before his death, made no pretence or allegation of the loss of any papers.

That with respect to the comparison so ingeniously made by the defendants counsel, *between*the sums made by the testator Mr. Webb, and the executor, it was the result of the higher prices got for rice by the executor after the revolutionary war, than those obtained by the testator before the war. That the price obtained was not the true *507standard, but the quantity of rice made by each on the same lands and. with nearly the same labourers. That by this standard the difference was clearly and greatly against the executor. Besides, the testator made much by lum- . *ber;*the executor nothing.

Chancellor James

afterwards delivered. the decree of the court.

On the Petition for a rehearing, in the interlocutory order made in this case upon which a rehearing is now prayed, it is stated among other matters, that upon the charge of gross neglect made by complainants against Edmund Bellinger, deceased, the complainants gave evi» dence of the crops made by the testator, Benjamin Webb, deceased, for six years preceding his death, and'of the crops made on a plantation in the neighbourhood by the executors of *Austin;*and from a comparison' of these with the crops made by Edmund Bellenger for the estate of Webb, endeavoured to draw an inference that Bellinger, the executor, was guilty of such gross negligence as to make him liable either for the alleged deficiency, or for the hire of the negroes. But the 'evidence in neither view affords a satisfactory guide to the court. After making some observations upon the .evidence both of the complainants and defendant, it is further stated' in the said decretal order, “ that under this view of. the case, the court are left in a state of uncertainty, for while on the one hand, we profess ourselves not to be satisfied with the comparison offered to us, on the other, we are not altogether content with the crops which have been made by Mr. Bellinger. Therefore being thus situated, we think it will be most safe to resort to the general rule, formerly adopted in the case of Mayrant against the executor of Nelson, and to allow the complainant negro hire.” Now, as the case was made out at the close of the former argument, the court was led to think there would be little difference between the sum usually allowed for negro hire, and the sum arising from the crops made by Mr. Beilin-*508ger, And as the evidence on the part of complainants was-by no means conclusive, and the crops made by the executor were very ordinary, it was deemed most safe tq resort to the rule before recited.

At the former hearing, though the counsel for the de«-fendant exercised much ingenuity, yet they did not enter into such clear calculations as at present. And this case depends much upon the clearness of calculation. Those statements now offered, and which are admitted by complainants counsel to be generally correct, have enabled the court to form a more correct opinion in the case. At present it appears that the amount of negro hire will be considerably more than the proceeds of the crops made by Mr. Bellinger; and although the court are not yet contented with those crops, still they think that before complainants ought to recover any more, than the amount of them, they ought to shew eithc *¡*that the executor wasted the estate, or that his accounts were false, or else that he was guilty of gross negligence.

But it has not been attempted to falsify the account?, neither has a devastavit nor gross negligence been proved! Complainants have proved Mr. Bellinger to have been abad planter ; but he was chosen by Mr. Webb to be hi? executor, who could hardly be ignorant of that circumstance, for they were near neighbours. He might have preferred his moral to his agricultural qualifications ; but this is of little moment, he was the object of his choice, the person appointed by himself to manage. And if he did that uprightly, but yet without, exercising superior judgment, this court wjll not interfere, so as to mulct his representatives. Were executors to be rigorously proceeded against, no good man would accept the office. None but the cunning or the bad man, who conceived that he had dexterity enough to defraud or to evade the law, would qualify and act as such. The court should therefore be careful not to make'executors responsible, except, for wasting the property'of testator, false accounts, 05 *509gross negligence. But neither of these have been proved to the satisfaction, of the court in this case.

Therefore let the former order be reversed. And as the master hath not yet reported on the accounts, let it be * A ' referred back to him to state them, and to report upon the same.