#### *The heirs of Jno. McAlister (dec'd.) vs. J. G. Brice Adm’r.*

When heirs are of full age and the Ex’or. or Admr.of the estate, (to which they are entitled as distributees,) gives them notice that he is ready to pay over to them, at any time, the fund that is in his hands, and he did not make interest by the fund; he will not be held responsible for interest. But he must prove the fact that he gave such notice ; and that he was ready, and offered to pay the principal sum when he was called on for it.

*Heard, before*Johnston, Chancellor.

Fairfield,

*July*Term, 1841.

This was an appeal from the Ordinary of Fairfield District. The facts and circumstances of the case will he fully understood by the following decree .made by him.

“John McAlister, junior, departed this life in the year 1823, intestate, leaving no heirs in this country, but leaving a father, brothers and sisters in the county of Antrim and Kingdom of Ireland. Letters of administration, on the estate of said deceased, was granted to James G. Brice, *276the present defendant, on the 15th day of September 1823. The admr. sold the goods and chattels of the estate (after having had the same duly appraised) on the 4th day of October 1833, and, returned the inventory, account of sales, together with- a statement of the debts due the deceased, and cash on hand at the time of his death, into the ordinary’s office, within the time prescribed by law. No other returns were made by the administrator, until 25th December, 1838, when he made a return marked No. 1, (a copy of which is herewith filed,) from which it appears, that he had received assets to the amount of $468, 95

And paid away on account of sundry debts and expenses ' 39, 37

Leaving a balance of $429, 57

To the returns, thus far, there is no objection; the only question is, whether the admr. ought to pay interest on the above balance

By a decree of the ordinary, ill this case, dated 15th October 1839, the admr. was exempted from the payment of interest; that the decree was set aside by the Court of Common Pleas, and the Ordinary directed to rehear the case, (which will more fully appear by reference to said decree and to the order of his Honor, Judge O’Neall endorsed thereon.)

From, the evidence since offered, it appears to the satisfaction of the Ordinary, that the heirs had notice that the admr.. was willing and ready to pay the amount due them, when called on in a proper manner. That the admr. expressed himself willing and' ready to pay the principal, the first or second time that interest was claimed. That he made no interest by loaning the funds of the estate ; and that he had reasonable cause to expect an immediate call from the heirs, for the amount due them, and was therefore justifiable in retaining the funds in his hands.”

The claim for interest is refused by the Ordinary.

JOHN R. BUCHANAN, *Ordinary.*

Ordinary’s office, 29th March, 1841.

Upon hearing: the foregoing ease, *it*is

Ordered and decreed that the foregoing decree of the ordinary be set aside, and' he is hereby directed to make up the amount, allowing interest on the principal sum, *277from the first day of January, eighteen hundred and twenty-five. J. JOHNSTON.

July 14th, 1841,

From the decree of the Chancellor the defendants appealed, on the grounds:

1. Because, *from*the facts and circumstances of the case, as proved before the Ordinary and reported by him, the defendant ought not to be charged with interest, and the decree of the Ordinary, exempting him from interest, ought to have been sustained.

2. Because the defendant, if chargeable with interest at all, ought not to be charged with interest after the year 1833, when explicit notice was given to the heirs that the money was in his hands, ready to be paid to them, and the course indicated for them to pursue, whereby they might speedily receive it; and from which defendant had a right to expect an early call for the money, and was bound to keep it ready for payment.

Clarke for motion

Cited *Davie*vs. Wright, 2 Hill 560.

Gregg contra

Cited Bail Eq. 461. *Brown*vs. *Wingard:*3 Hill 204*Dixon*vs. *distributees of Hunter.*

*Curia, per*Harper, Chancellor.

The instructions given by by the presiding Judge of the Court of law, on a former appeal in this case, were “that if the heirs were of fall age and the defendant gave them notice that he was ready to pay over the fund to them, at any time, and he did not make interest on the fund he would, come within the spirit of the exceptions to which I have alluded and would be exempted from the payment of interest. But he must prove the fact of such notice and that when called on by the attorney, in fact, of the heirs that he was ready to pay and did offer to pay the principal sum. To this if the heirs can reply and. shew that he made interest so far he ought to be charged with interest.” The general rule is that an executor or administrator is chargeable with interest and to exempt himself from its payment he ought to shew the circumstances which excuse him; though I think the fact of notice to the heirs might be fairly inferred from the letter of Jno. McAlister Jr. of the 5th of Oct. 1824, acknowledging it to himself; yet there was no proof, *278although it was so stated in argument, that they were of full age. If they were infants, the administrator was hound, as trustee, to make interest for them. The witness, McGill, who was examined before the Ordinary, stated “that when, as attorney in fact, for the heirs, he called on the administrator for payment the latter replied, that he had come in a bad time that he had not the money, but expected he could get it at Winnsborough, that he had bought a tract of land of Mr. Adger, and it took all the money he had to pay for it.” Now this evidence shows that, to a certain extent, he did use the money for his own purposes and if so, as observed in the case of *Brown*vs. *Wingard, 1*Bail. Eq. 161, that was equivalent to the making of interest on it. The administrator lends to himself and like any other borrower ought to pay interest. The witness further states the administrator to have said, in assigning reasons why he should not pay interest, “that he was always expecting some of the brothers to call for the money and *he could have got it*for them at any time.” Now if, as this evidence obviously imports, the administrator did make use of the money, generally, for his own purposes, however justly he may have relied on his credit resources to raise it, or call it in when it should be demanded of him, he comes within the rule I have stated and must be regarded as a borrower of the money. The order of the Chancellor is therefore affirmed and the appeal dismissed.

Clarke *&*McDowell for the defendant. J. Gregg for complainant.

Note. It does not appear from the manuscript of the opinion, in this case, furnished the Reporter, that any of the other Judges concurred in the opinion of Chancellor Harper, but it is presumed they all did.