author: Buchanan, J. Slidell, C. J.,

text:
    James A. Bass et als. v. R. J. Chambliss, Executor.
    Where an administrator’s account has been homologated, he will not be liable, under the Act of 1887, to pay interest on the balance in his hands.
    It is the duty of an administrator to use all legal means to collect from the succession of his predecessor in office the balance due to the estate, and he will be bound for the loss which may result to the estate in consequence of his failure to do so. Yet this delinquency does not subject him to pay the interest imposed by the * ct of 1837, on Executors who have failed to deposit money collected in bank, and he will only be hound to pay five per cent, interest.
    The charge made by an administrator for lawyer’s fees for the preparation of his account, will not be allowed, when, by his delay, he has compelled the heirs to sue for its rendition.
    Where the executor has been guilty of great irregularity in keeping his accounts — of omissions to report annually — of mingling the affairs of the estate with his own, of an unjustifiable concealment of funds received and arrangements made with debtors — of a use of the trust funds, and a continuous effort during a long period to protract the litigation and keep the heirs out of their estate, he will be subject to the application of the rule, u Omnia presmnmvter contra spoliatorem Slidell, O. J.
    An Executor who has incurred a liability at a particular date for a sum of money, by reason of his mal administration, is as much bound for interest as if he had actually received cash belonging to the succession, for the statute of 13th March, 1837, imposed the obligation to pay ten per cent, interest, not only on cash actually collected, but “ on all sums for which he may be responsible.” Slidell, C. J., dissenting.
    Discussion of the rights, duties and obligations of administrators,
    APPEAL from the District Court of the parish of Carroll, Perldns, J.

      Short & Parham, Stacy & Sparrow, and Qeo. S. Terger, for plaintiff:
    1. The non-payment of interest will be resisted, because it is said, neither the code nor the statute law of the State make any provision for the payment of interest by executors, administrators, curators, or persons who occupy a fiduciary relation, except in the case of tutors; and because, if interest could be charged ordinarily, it ought not to be charged in this case, as the fund in the executor’s hands arose principally from notes collected, which had from one to ten years to mature; and that, by the directions of the will of Job Bass, the fund was not to be distributed to the heirs until the last note fell due, to-wit, in 1845.
    The Code (see Articles 2894, 2895, 2896, 1929, 1930, 1931,) provides what shall be the rate of judicial and conventional interest on loans of money, or the withholding of money due by contract. It also specifies the cases wherein interest shall be recovei ed. All of which contemplate the relation of debtor and creditor, or a contract, express or implied. It is therefore granted, that there is no express provision made for payment of interest on money in the hands of trustees, executors or administrators. But the court will notice, that this is also the case in the statutes of Great Britain, New York, and all, or nearly all, of the States in the American Dnion. See English Statutes, New York Statutes, North Carolina Statutes, &c.
    If, therefore, this objection were a good one, it would prove that the British courts, and the courts of the American States, have been most lamentably ignorant upon the subject.

      But the argument is founded on a total misapprehension of the question. Interest is not, and never has been adjudged against trustees, upon the ground that it is given by statutory enactment, or the positive provisions of a code. Nor is it given by any analogy to such statutory provision. Trustees are charged upon a distinct principle — a principle of universal jurisprudence — a principle of sound, enlightened policy. It is this: that trustees will not be permitted to use the trust fund for their individual benefit, nor will they be permitted to trade with the fund, or make profit on it, or use it any way inconsistent with the terms of the trust; nor to retain it, where it is their duty to invest it, or to pay it over.
    All these, and similar cases, are viewed in the light of breaches of trust; and the trustee must bo held to account for the profits or benefit he has derived from the fund, which, generally, not having kept distinct from his own, can not be ascertained; therefore, the courts look to the statutes regulating interest, to ascertain the value of money, in order to ascertain the profit or benefit the trustee has derived from the use of the trust fund.
    It matters not what name we give to the party who occupies a fiduciary relation. Whether he is called executor, curator, tutor, guardian, or trustee, the general principles above laid down must apply. In Louisiana, executors, administrators, &c., are trustees, (2d Annual Rep. 923); and in Louisiana, as in other States, an express trust may be created. Hope v. State Bank, 4 L. 213. Malone v. Ba/rker, 2 R. 369. Caldwell v Hermen, 5 R. 20.
    If, therefore, there were no positive enactment, stating what rule should prevail in cases where the code or statutory law is silent, the courts of Louisiana would be governed by those principles of justice and equity, generally recognized by enlightened nations.
    But the 21st Article of the Civil Code, furnishes a clear rule for the court, in cases not provided for by positive law. It enacts, “in civil matters, where there is no express law, the judge is hound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”
    The construction of this Article is, that the courts of Louisiana, in such cases, will look to the decisions of courts in other States, in analogous cases, for the rule to govern them. Delezardo v. Gossett, 1 Ann. 139. Gredhj v. Conner, 2 Ann. 87. Brown v. In. Co., 3 Ann. 177. Slwt'ke v. Burke,' 5 Ann. 740 ; 5 Ann. 720 ; 4 A. 209, 210; 13 L. 198, 199 ; 12 M. 498.
    Looking then to the decisions of courts of equity in England and America, and also to the civil law, we find it laid down, as a principle of universal jurisprudence, that truste.es can only hold and act for their beneficiaries; that all profits and gains enure to their use, and that interest, sometimes simple, sometimes compounded, will be given as the standard or value of the money used.
    Thus, the trustee is liable for profits, or interest, where he does not keep accurate and regular accounts, so as to be always ready with them. Willis on Trustees, 125, 176, 177 side page. 14 Yesey, 510. 1 Jacob and Walker, 140. 3 Mer. 43.
    Or, where he omits to distribute at the time required by law, or by the terms of the trust Grey v. Thompson, 1 John. Oh. 85.
    Or, where he mingles trust money with his own, or uses it, or trades with it, or makes a profit on it by way of interest or otherwise, or fails to invest where it is his duty to do so. Munford v.-,6 John. Oh. Rep. 1. 2 Story’s Equity', sec. 1277. Duneomb v. Duneomb, 1 John, Oh. 508, 527. 2 Dev. & Battle, Oh. Rep, 339. 4 John. Oh. Rep. 305. 1 John. Oh. Rep. 620, 629. Lewin on Trusts, 327, 328.
    Such, also, is the rule of the civil law. See 2 Story’s Eq., sec. 1277 — note to sec. 1268. 1 John. Oh. Rep. 629. Doma-t-.
    In fact, the principles of English and American equity jurisprudence, on this head, are based upon the civil law.
    But it is said, this court, in the case of Fetherston v. Robinson, 7 Lou. Rep. 599, has decided otherwise.
    Upon examining that case, it will be seen the point was not made by counsel; nor did it appear in that case, that the executor used the funds, or failed to keep proper accounts. In fact, the grounds on which trustees are chargeable, wore not presented by the facts in that case. The question appears not to have been examined ; and in the absence of all these things, the court, upon the state of case there presented, merely decided, that, as the accounts were not liquidated, he should not pay interest, &c.
    But if it were a point decided, this court has several times ruled, that a single decision, particularly when not investigated, or the point examined, will not be considered as settling- the law; and if, upon full investigation, this court deems it erroneous, it will overrule it. Griffin v. His Creditors, 6 R. 228. La Grange v. Barré, 11 R. 302, 310.
    That case is therefore no authority upon the state of facts here presented.
    According to the facts of this case, and in accordance with the foregoing principles, the dative executor is clearly liable for interest.
    First, he is liable, because he failed to keep regular, stated and annual accounts, and because he did not annually present to the probate court, as required by the provisions of the Act of 1837. Revised Statutes, 564, B. & 0. Digest, 499. So far from having his accounts regular, they were in great confusion ; he repeatedly asks time to get them ready; he makes them out several times; he makes mistakes and corrections, and finally asks $1200 to be paid to counsel for assisting him in making them out.
    Second, he is liable, because the will of Job Bass directs the property to be divided in 1845. He should have paid over, as directed by the will, the amount then in his hands; he failed to do so.
    But third. He is manifestly liable, because he used and mingled the trust money with his own. Where the proof shows large balances in the hands of executors for years, the law presumes he has used it, unless by proof made on his part, he shows he kept it on deposit, or separate and distinct from his own, that it might always be ready when it was wanted; otherwise, the presumption that ho has used it, and more particularly when he fails to keep regular and correct accounts. Peyton v. Smith, 2 Dev. and Battle, Oh. 325 ; 1 John. 510, 621. 4 John. Oh. Rep. 306. Dev. Equity Rep. 369.
    April, 1848, his account shows he made a large payment to the heirs, but .it also.- shows that this payment was not made out of money previously in his hands, but from sales of property just then made, and even the whole of this ho did not pay over.
    ,, But in his opposition, he objects to paying interest, because the money was not to be divided among the heirs until 1845. Why did he not pay it over then, and account for the Barton debt ?
    , JSutfthis pretence will not avail. The principles laid down in the cases above cited, ■■'show that a trustee shall make no gain out of the fund, he must account for.all it produces in his hands, although it may not be required for years.
    Suppose he had purchased a house in 1841 or 1842, for $10,000 and sold it for $20,000? Suppose he loaned the money at conventional interest, and received $10,000 of interest, is it not the product of the fund? Suppose he uses it all this time, is not the interest the product of the fund? But this is not all; his using it for his individual benefit is a constructive fraud. As it cannot be identified, it becomes part of his estate, and on his death will become assets, and cannot be followed by the beneficiaries: in such case the interest or profit is by law converted into a trust for the beneficiaries. 2 Story Eq’ty, sec. 1261. Willis on Trustees, 121. Pawcell v. WMtehouse, 1 Russell and Milne, 132,149. 2 Dev. and Batt. Oh. Rep. 339.
    But the point is explicitly decided by Chancellor Kent. He says, in cases where it is proper for him to retain it or keep it on deposit, yet, if during the time he made interest he must pay it: thus clcarty proving, that if he uses the money during the time, (the profit of which is interest,) he is accountable for it. 4 John. Oh. Rep. 305.
    III. Having shown that he is liable to pay interest, the question is, what interest shall he pay, and how shall it be computed ?
    The Record shows two claims against him — one for $30,771, the amount due from Barton, the previous executor, and which was homologated and directed to be paid; the other the amount of money actually received bjr himself.
    As he was security on Barton’s bonds,' — and it is proved Barton's estate was insolvent, — that debt, particularly as he took no steps to make it out of Barton’s estate, must be charged to him, as he cannot sue himself on the bond. Barton used this money, — for the inventory- of his estate does not show he kept it separate, and as he was ordered to pay it and did not, it unquestionably bears, at least, five per cent, interest. But we coutend for more on this as well as on the amounts actually received by himself. We contend, that, after the lapse of a reasonable time, say twelve months, within which he should bo allowed to make the amount from Barton's estate, as he was liable for the debt as surety, and could not sue himself, the amount must be considered as due by himself; and he so should have charged it. He, therefore, has had the use of this money, which, if any one else but himself had been dative executor, he would have been obliged to pay. He, therefore, must account for the use of this money on the same principle he accounts for the use of any other money in his hands.
    What, then, is the interest with which ho should be charged ? Eight per cent., at least, that being the amount claimed in the petition. The rule is, that in cases where he has used the money, has failed to make proper accounts, he shall pay for the profit of the money, the highest rate of interest allowed by law. In England, in such case he will have to pay five per cent,, the highest rate. The highest rate of interest allowed by the law of Louisiana, is conventional interest ten per cent., and this should be charged to him; but as we only claim eight per cent., perhaps we cannot claim more, 3 Gill and John, Rep. 342. See Lewin on Trustees, 328,
    But he submitted to pay eight per cent., and the evidence of Oorey Hood, show's he understood his duty, and knew his liability, for he told him he would have to pay interest; therefore, he exacted it.
    His sense of natural justice and law instinctively informed him what his liability was; and, by agreement on record, he submitted to render an account, as claimed in the petition.
    IV. But whatever rate of interest is allowed under the circumstances of this case, it must be compounded, or annual rests made, or at least the interest due will be applied in the first instance to his disbursements.
    In this country, policy — justice to minors — the avoiding all temptation to do wrong, and to prevent endangering the loss of the fund by its use, the will, in a case of great delay, and where the money is used, allow .com interest.
    I am aware of the provision in the Code which says : 11 Interest upon ir cannot be allowed, unless it be added to the principal, and by another co: made a new debt. No stipulation to that effect in the original contract is v Art. 1934.
    But this provision, like the interest law, only applies to contracts, expn implied, in which the relation of’ debtor and creditor exists.
    The laws of the other States, in such cases, equally prohibit interest to compounded, except where it is turned into principal by contract. Indeed, the courts go so far as to decide, that where interest is by contract made payable annually, and is not paid, still interest on it will not bo allowed, because not authorized by the statute. See 7 Greenleaf’s Rep, 48, 8 Mass, 48, 455. 17 Conn. 243. 13 Vt. 430,. 23 Pickering, &,c.
    But as I have shown, interest is allowed against trustees to pay for profits made by them — it is not governed by the statute — hence, where compound interest is not allowed by the statute or common law, on ordinary debts, yet the same courts decide it may be charged againt a t/rustee who has used the funds. And this also is the rule of thq civil law. And it should be so; for the yearly interest or profits is a trust fund, as much as the original principal. The modern authorities show, where the money has boon used, and particularly where the party has delayed, or kept inaccurate accounts, or failed to keep regular accounts, ready at all times for inspection, he must pay compound interest; for it is presumed he made this much from the use of the money. 1 John. Oh. Rep., 624. 1 Brown’s Ch. Rep. 359, cited 1 John. Oh. 625. Riley’s Oh. Rep. 38. 2 Story’s Equ. sec. 1277, 1278, 3 Gill. & Johnst. 343. 2 Dev. & Battle, 339. Baily’s Rep. 460, 1 McMullen, 275, 2 McCord’s Oh. 1. Such is the civil law, as shown by Chancellor Kent, in the above case, in 1 John. OK Rep. .
    . The policy of this rule, and the injustice of withholding it, is ably sustained by Chancellor Kent, in the above case. See 1 John. Ch. Rep. 626.
    V. Having, as I trust, proved the liability of the executor to pay compound interest, 1 will barely advert hero to the pretence set up by defendant against payment of the Barton debt. The only defence he makes to this, is prescription. That is, he says, “ I have not sued myself on my, bond, nor have I sued Barton's estate, as was my duty, in ten years; therefore, as 1 have neglected to do it, I pray the court to give me the benefit of my not proceeding against myself or Barton's estate.” The mere statement of such a case answers the objection.
    If he had not been security on the bond, and had failed to sue Barton's estate, so as to let it be barred, the court would hold him responsible, if it could have been made out of that estate. 9 Robinson, 406. 2 Ann. 281. 10 Martin, 708. 3 N. S. 707. And yet where he is absolutely bound as surety to
    pay it himself — and because he cannot sue himself — and because he has failed to charge himself with it — he modestly asks the court, to. allow prescription against his own acts. A suit against him alone on his bond could have been sustained — if he could have sued himself. Denys v. Armitage, 6 Martin, G30. Elliott v White, 5 La. R. 824. Pármele v. Brasher, 16 La. R. 72.
    VI. I will barely notice one other point.
    1st. We objected to the allowance of $1200, paid Mr. Demise (after the litigation began, in which we charged him personally.) This is paid on pretence of professional assistance in filing his acconnts. It is, in fact, a fee paid to defend his own acts, when personally charged. Such a charge, for merely assisting in making out an account, could not be allowed. See Ferrer v. Bofil, 11 Martin, 285.
    VII. We object to his account, because it does not charge himself with the above claim against Barton's estate, and others; but as these have been examined by my associate counsel, I can add nothing to what they have said, barely referring to the case of Johnston v. Goon, 13 Lou, Rep. 637, to show that the fact,' that the two annual accounts rendered by him were homologated, does not bar us from showing that he has received other funds, or liable for other charges not contained in said accounts.

      Snyder & Selby, for the executor of Mrs. Barton:

    June 13, 1839, Martha A. Bass, during her widowhood, executed lo Cham-bliss the obligation “ A.” The consideration of which, as stated in it, is to save Ohambliss harmless, by Mrs. Barton, for all future losses which he may possibly sustain by having been the surety of D. O. Barton, her late husband, through mere friendship towards herself and Barton. But the consideration attempted to be proved different from that expressed in it, is that Mrs. Barton guaranteed Ohambliss against Barton's default, because she had secretly applied the money to her use, found in the succession of Barton, knowing that it belonged to the succession of her father, Job Bass, which, if so, and Cham-bliss knowing it, as he must have known, it was his duty to collect of her, for the creditors and heirs of Job Bass. If this is true of Ohambliss, as his heirs contend that they have proved it true, on behalf of Ohambliss, it was contrary to good morals, and he or his heirs may not now' be permitted to plead and take advantage of it. O. P. 19 ; L. O. 1887 and 1889. “Ex turpi causa non oritur aetes." 11 Wheaton R. 258. 5 R. R. 490. C N- S. 218. 5 N. S. 409. 3 N. S. 46. 1 Ann. 09.
    “The administrator is” not only “ responsible for any loss sustained by the estate through his neglect,” (9 R. R. 405,) but “the curator of a succession may sue the surety of a former curator for any amount due b}' his principal.” 1 A. R. 75, succession of Johnson. Therefore, if Barton, as the executor of Job Bass, had received money belonging 1o the latter’s succession, and used it upon his own account, upon the appointment of Ohambliss, and this coming to his knowledge, as he must have known, june 13, 1839, the date of the act “A,” it was his duty as executor to collect it of the succession of Barton ; ar.d if Mrs. Barton had secreted any of it, it was his duty to collect it from her; and upon his failure, from insolvency or otherwise, it then became his duty as executor of Boss, to collect the amount of the default of Barton, from the surety of Barton, himself. This court has said, “it is the doty of courts to look with jealousy upon the conduct of those who act in a fiduciary capacity, and to take care that they do not make personal benefit from the manner in which they manage the estates confided to them.”1 6 Ann. 256.
    It is confidently contended, that il the consideration of the act “A” was, as contended for by the representatives of Ohambliss, it was, on his part, a dereliction of duty and immoral, and that a court of justice, under our law's, will not lend its aid to enforce it. 19 L. R. 497. 1 Ann. 76, and an indictable of-fence by our criminal statutes. Clarice v. Scott et als., 2 Ann. 907, and the authorities therein cited, particularly 17 L. R. 118.

      Boselius, Bryan and Bemiss, for defendants and appellants :
    We shall present our points to the court in order in which the transactions occurred. First noticing the demand to render Chambliss liable as security of B. 0. Barton.

    1st. The bonds of Barton on which Chambliss' name appears are dated: one, ICth of September, 1835; the other, 1st of Februar}"-, 1838. This suit was filed 24th of April, 1848 ; citation served 26th of April, 1848. The defendants oppose the prescription of ten years to any demand of plaintiffs so far as his supposed liability as security on D. 0. Barton's bond is concerned.
    2d. No judgment should be rendered against Chambliss as security for B. 0. Barton, without ascertaining, contradictorily with the legal representative of D. U. Barton, the amount of Ba>‘ton'$ liability.
    3d. If above points should not be sustained by the court, defendant is entitled to recover the same judgment against the legal representative of Martha A. Bass, (Widow Barton,) here represented by IF! M. Benton, as the heirs of Bass may recover against him as security of B. 0. Barton.

    4th. The accounts of D. 0. Barton are res juclieata between the parties, and cannot bo disturbed.
    5th. No funds are shown to have come into Chambliss' hands from B. 0. Barton, except Rood's and Chambliss' notes for four thousand dollars ($4000), which are accounted for in his account of 3d of April, 1841, and he is not even charged with using the funds in his hands as executor, so no interest can be charged on any balance found to be due from Barton to Bass' succession against Barton's security ; because no interest it stipulated in the bond ; because no statute imposes interest as a penalty; and, because Chambliss has not been placed in default. Art. 0. 0. 1930, 1931, 1932.
    6th. Chambliss having a right to retain in his hands the share in the estate of Job Bass belonging to Mrs. Martha A. Bass, amounting to some twelve or fourteen thousand dollars, and there being at-this time only a balance of account of some two thousand dollars, the plaintiffs should be compelled to collate on partition, and pay to the credit of any judgment rendered against Chambliss as security of B. O. Barton, such sum as they or any of them may have received over their share or for any money paid over to Benton for Martha A. Bass, they having paid the same pending this suit.
    So far as Chambliss is sued to account as dative testamentary executor of Job Bass, we say :
    1st. The account, as presented in a previous part of this brief is correct. The items which the (Jourt ordered to be erased having been excluded, and the additions which were presented during the trial and ordered by the court added.
    2d. The plaintiffs have no right to demand interest on any balance in Chambliss' hands as executor, unless, at least, they show that Chambliss converted the funds of the succession to his own use, and so far from showing that Chambliss converted those funds to his own use, the plaintiffs have not alleged it in any part of their pleadings.
    3d. Interest can bo allowed only when it is stipulated in the contract, or when the party has been put in default, or as a penalty for violating some statute — 1930-31-32 C. C. No particular statute has been invoked by plaintiffs.
    4th. The accounts of Chambliss as dative executor — the first account homo-logated ; second account homologated ; third account homologated — are judgments binding on the parties and cannot be disturbed by any court.
    5th. Even if the judgment of the District Court was correct in allowing interest upon the various sums of money which carne into Chambliss' hands as executor from the date of these respective receipts, it was a manifest error to go behind the homologated accounts of 1840, 1841 and 1842, to charge interest on the items of said accounts.

      Warren M. Benton, representing his late wife, Mrs. Martha A. Bass, late Widow Barton, and one of the heirs of Job Bass, on the 27th May, 1852, filed what he styles an amended opposition. This the court will see is another one of those singular excrescences which have grown out of uniting two distinct and seperate causes of action in one suit. In this amended opposition various nullities and defences are set up to defeat the effect of the agreement entered into between Martha A. Barton and B. J. .Chambliss. To these objections wo reply:

      1st. It is not pretended that the contract of Mrs. Barton with Chambliss is a donation.
    2d. It is not necessary to the validity of a contract, that the consideration be sot forth in it, It is only necessary that a legal consideration exists. C. C. 1888.
    3d. Mrs. Barton was a widow at the time of contracting with Chambliss, and of ago competent to contract. She was not the security of her husband. She was “ desirous to relieve the estate of her second husband,” to prevent law suits; to be able to retain in her hands some sixteen or eighteen thousand dollars which her husband had on hand at his death. The court will gain some Valuable information upon this subject in 12 R. R. 113, and 19 L. R. 499. None of this large sum of money seen in the possession of Dr. Barton immediately before his death, and in his wife’s hands, by Judge Selby, after his death, is pretended to have been paid over to Chambliss.

    There is a natural equity in making Mrs. Barton, at least to the extent of her share, responsible for what she has used herself, or had the benefit and enjoyment of. She should first restore to the succession of her father what she took from it before she demands her portion at the hands of her husband’s security,
    It was understood and conceded on the trial of this suit in the lower court, that the portion of Mrs. Barton in her father’s estate had been paid over to TV. M. Benton, her executor, pending this suit, from the funds received from Eobinson, trustee. If this is the fact, plaintiffs generally are bound to refund this money to defendant; they having paid is in derogation and fraud of this suit and defendant’s rights.
   Buchanan, J.

This is a suit for an account instituted 24th April, 1848.

The account was filed 27 th November, 1848.

Plaintiffs, the heirs of Job Bass, opposed the account on the following grounds:

1st. “That for the year’s 1839, 1840, 1841, and 1842, the executor had in his hands, as will appear from the accounts of those years, about twenty thousand dollars, for which he allowed no interest, except for the year 1839.”

This claim of interest is based upon the Act of 1837, page 96, section 6.

The record shows that Chambliss rendered three accounts of his administration — the first on the 7th April, 1840, was homologated by judgment of court, on the 27th April, 1840, and showed a balance in favor of the estate of $20,396 26.

The second account was rendered on the 3d April, 1841, and was homologa-ted by judgment of the '14th April, 1841. This account showed a balance in favor of the estate of $12,247 40.

The third account of executorship was filed the 7th April, 1842. It showed a balance in favor of the estate of $6,636 58. A judgment of homologation of this third account was rendered on the 20th April, 1842, which does not appear to have been signed.

The amounts received at various times between the 10th January, 1840, and the 16th January, 1842, by Chambliss, as executor, as shown by those three accounts of administration, are in the aggregate $56,460. But it is not considered by us that any interest can properly be claimed from the executor therefor, except upon the balance shown by the last of the three accounts, to-wit: $6,636 58. The first- and second accounts have been homologated by judgments signed: and even there has been judgment of homologation rendered upon the third account, which has not been signed indeed, but that appears to have been through inadvertanee, for there was no opposition made to it, nor is it now pretended that there was any error in it Each account commences by crediting the estate with the balance shown by the preceding account; and the interest on the last balance only runs, under section 6 of the Act of 1837, from April 7, 1843, being one year after the filing of said account, by reason of the executor’s failure to file another account of administration as required by that section. The rate of interest under the statute would be ten per cent., but the plaintiffs only ask for eight per cent., which is accordingly allowed.

2d. The plaintiffs oppose the account, secondly, because the executor has not credited the estate in his account of 1840, with the interest on two notes collected, and which, it is alleged, bore interest from their date. There is an error of no importance in the date assigned by this objection to the account in which the collection of two notes said to be found. It is in reality the account of 1841, not that of 1840.

The items of that account alluded to, read as follows:

“ By amount received of Govey Hood, one thousand dollars, - $1,000 00

‘By amount of my note which was given to D. O. Barton, as dative

executor, three thousand dollars, ..... 8,000 00

The only evidence bearing upon this ground of opposition is found in the testimony of Govey Hood, who swears as follows: “ that he paid interest, at ten per cent., for two or three years from the maturity of the note until it was collected.” And in another part of his evidence, he says that he paid Cham-bliss as executor of Bass, interest on the note “from its date to its maturity, or from the time it was given until it was paid.” ¥e view this evidence as fixing the receipt of interest on the Govey Hood note upon Olicmíbliss. He is bound for that interest as cash received by him on the 7th April, 1840, amounting to $-, and this item must bear eight per cent, interest.

We charge Chambliss likewise as having received interest at ten per cent, on his own note on the 4th April, 1839, date of his receipt to the executrix of Barton, amounting to $-, and this item must bear interest as the other items of cash received and not accounted for.

We also charge defendant with a note of H. Prentice for $8000, and with interest at five per cent, on the same, as received by him on the-June, 1840. This item likewise to bear interest.

3d. The plaintiffs object, thirdly, that defendant has charged commissions, wrongfully, in the three accounts of 1840, 1841 and 1842, as well as in the account filed in 1848, upon moneys collected by him, instead of charging them upon the amount of the inventory that remained to be administered.

We think this obj ection unfounded. Plaintiffs further charge under this same head of their opposition that the defendant has charged certain commissions twice. This objection seems well taken. The amount thus charged twice in this account, is $1900 72.

4th. Plaintiffs object, fourthly, to a charge of $82, for commissions on a sum of $4000, said to have been collected, but which does not appear to have been collected. This objection is admitted to be correct.

5th. The fifth ground of opposition concerns a charge of $278 23 for overseeing, &c., which is admitted to be erroneous.

6th. The sixth ground is a double charge of fifty dollars for cost of a transcript. This objection is sustained, as well as that

7th. In ground seventh, being twenty dollars error of addition to prejudice of plaintiffs.

8th. The eighth ground of opposition relates to a charge of seventy-five dollars for three trips to Natchez and back, on business of the succession. There is no proof in support of this charge, which is therefore disallowed.

9th. The ninth ground of opposition alleges that an item of $92,734 55 to the credit of the estate for sales of negroes, &e., on Point Look-Out plantation, in April, 1848, is too little by $1000.

This item is only put down in the account as approximate. The correct amount of these sales is stated in amended account filed on the 18th May, 1852, to be $95,577 70. The difference on this item is therefore $2,843 21.

10th. The tenth ground "of opposition objects to a charge made by the executor of $5000, paid D. 8. Staey on the 8th May, 1838, which the opposition correctly states, was so paid, not by Ghambliss, the defendant and accountant, but by D. O. Bailón, his predecessor in the executorship. The opponents allege that defendant should not be allowed to credit himself with moneys paid by Barton, unless he likewise charges himself with the assets of the estate received by Barton, and not accounted for; and pray that the account be corrected by charging Ghambliss with the sum of $35,000, for moneys so received by Barton, and by giving Ghambliss credit for all sums paid by Barton for which the latter has not had credit in the account rendered by him to the late Probate Court.

It is in proof by an account of executorship filed by Bwi'ton on the 17th January, 1838, and homologated the 1st February, 1838, that the balance due by Barton to the estate of Bass at that date was $30,771 39. Ba/rton died the 4th January following, (1839). On the 4th February, 1839, Ghambliss qualified as dative testamentary executor of Bass, in place of Barton, deceased.

It was certainly Ohambliss’s duty to have used all legal means to make the balance above stated out of Barton's estate. Perhaps the reason he did not do so, was the fact that Barton's widow, who was one of Job Bass's heirs, and entitled to one ninth of his estate, entered into a contract of guaranty with Gha/mbliss, a few months after her husband’s death, by which she bound herself in the most unqualified manner, to save Ghambliss harmless for or on account of the balance due by her late husband to her father’s estate, and pledged her portion of the inheritance, by covenanting that Ghambliss might retain in his hands the share or portion of said estate coming to her, on account of the indebtedness of Barton to the estate. As Bass's estate, per inventory, was about two hundred thousand dollars in value, the proportion coming to this heir, Mrs. Bm'ton, might reasonably have seemed equal to the balance due by Mr. Ban-ton to the estate at the time of his death. For it is not proved that any moneys came into the hands of Barton after the rendition of his account homologated on the 1st February, 1838; and upon that balance, Barton had paid to Mr. Staey, as alleged in the ground of opposition under consideration, a sum of five thousand dollars ; in addition to further credits allowed Barton of four thousand dollars, by the judgment of the District Court, which are not complained of in this court, and still another credit of $3000, allowed by the present judgment for a note of Horace Prentice. The true balance, after making these allowances, due by the estate of Barton to the estate of Bass, is more particularly shown by the account incorporated in this opinion. We are of opinion that Ghambliss should be charged with this amount, and should have judgment, over against Mrs. Barton, called in warranty. But we do not think this portion of our judgment against the defendant should carry eight per cent, interest, as ordered by the judgment appealed from. This is -not money collected by the executor, and which he has failed to deposit in bank or account for. It does not therefore come within the provision of the Act of 1837, which is a highly penal statute, and should be strictly construed. It is even uncertain how much, if any, of this balance due by Barton's estate will have to be disbursed by Chambliss's representatives; for although Chambliss rendered himself liable to make good Barton's deficit, yet it will be equitable and necessary, to stay execution of the portion of the judgment against his estate arising from this cause, until it be ascertained what is the precise sum coming to Mrs. Barton in settlement of her father’s estate — defendant being clearly entitled to a credit for that amount, under Mrs. Barton's warranty. The balance of Bcorton’s account of the executorship after giving credit for the amounts of the three notes of P. J. Chambliss, H. Prentioe and Corey Hood, and the Stacy receipt, in a debt due by the succession of Barton to the succession of Bass, and as such, bore interest at the rate of five per cent, from Barton's death, by the Article 989 of the Code of Practice. For this interest Chambliss is responsible upon the Barton balance, in their double capacity of surety of Barton, and of his successor of Barton in the executorship of Bass.

The very peculiar feature of this portion of the cause is that Chambliss must be viewed as having paid the amount for which he was responsible as surety of Barton to a person who was certainly entitled to some portion, if not the whole of the amount paid, as being one of the heirs of Bass; that person at the same time being bound by contract to hold Chambliss harmless from his said responsibility.

We are of opinion that the Barton balance of account of executorship, is entitled to the following credits:

Gash paid to Mr. Stacy, - - - - - $5,000 00

The following notes turned over by Barton’s executrix to

defendant, and by him collected — Covey Hood, $1,000 00

Chambliss, 3,000 00

H. Prentice, 3,000 00

■- 7,000 00

Total,.$12,000 00

Together with the interest collected by Chambliss, on those notes.

The eleventh ground of opposition is too vague and general to require any notice.

An amended opposition was filed on the 1st June, 1849, alleging that the defendant had not given credit for two drafts, one of $2,500, and one of $690, paid by Atchison. Annexed to this opposition is a statement signed by defendant. A comparison of this statement with the two accounts filed by defendant in April, 1842, and November, 1848, will show that all the drafts paid by Atchison, are included in one or the other of them, except that of $690, received the 5th April, 1842, with which the defendant must be charged.

This suit, after the account and oppositions filed, dragged along in the District Court until, in December, 1850, an agreement was entered into by the parties and put on file, by which the case was to be continued for another year, provided the administrators of defendant, (who had died in the meanwhile,) would pay $15,000 in cash, and as much more in city acceptances, ($30,000 in all,) on or before the 20th January, 1851. This was done.

On May 18th 1852, defendants, with leave of Court filed an amended account in which the only difference from the account filed at the begining of the suit by Chambliss was, the omission of several of the items objected to by the plaintiffs on the debit side (which have been already noticed in their proper place,) the insertion on the debit side of an item of $1200 for fees of Messrs. Bemiss and Bryan, for filing account and settling tlie succession, and the insertion on the credit side of the sums paid the heirs since the institution of the suit, being- $30,000 to Sparrow & Short, attorneys, and $556 60 to Benton, assignee.

The balance shown by this amended account to the credit of Bass's estate was $1,368 98.

Eight days after this amended account filed, the parties went to trial; and on the second day of the trial, viz: the 27th May, 1852, defendant’s counsel tendered still another amendment, composed of a few items, of which the only one that is necessary to notice is, a very obvious error of $1000, in computation of commissions of two and a half per cent, on the amount of Sheriff’s sales. The District Court properly allowed this amendment.

The fee of $1200 allowed Messrs, Bemiss & Bryan in the amended account of 18th May, 1852, was objected to, and properly rejected by the District Court.

An heir who after waiting for years, is obliged to sue an executor for an amount, ought not to pay the counsel employed to defend such a suit. It is to be supposed that he has had to employ counsel to prosecute the suit, whom he will have to pay. This is an expense which he has incurred through the fault of the executor, and we see no propriety in doubling that expense to him, by charging him with the fees of counsel who defend the suit.

Upon a review of the evidence and law of the case, we state this account as follows:

A.

Statement of Account with, Interest, R. J. Chambliss, Dative Testmnenlm'y Executor, with Succession of Job Bass.

Statement of Account with Interest, R. J. Chambliss, Dative Testamentary Moeeutor, with Succession of Job Bass.

B.

Statement of Account with Interest, D. 0. Barton, Dative Testamentary Executor with the Succession of Job Bass.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and it is further decreed, that there be judgment in favor of plaintiffs against the legal representatives of Robert J. Ghambliss, namely, Samuel L. Ghambliss, John 3. Martin and Mrs. Mary E. Martin, administrators of the succession of Robert J. Ghambliss, for the sum of $42,931 79 principal, with interest on $25,247 62 of said amount at the rate of eight per cent, from the first of January, eighteen hundred and fifty-one, until paid; and on $17,684 17 of said amount, at the rate of five per cent, from the fourth of January, eighteen hundred and thirty-nine, until paid; and that there be judgment in favor of the administrators of the said R. J. Ghambliss against W. M. Benton, in his capacity of executor of Mm'tha A. Bass, for the sum of $17,684 17, with interest at five per cent, per annum from the fourth of January, eighteen hundred and thirty-nine, until paid; that the plaintiffs be referred to a Notary Public or Parish Recorder, to be named by the District Judge of the parish of Carroll, for the purpose of making a partition and settlement of their respective rights as heirs of Job Bass, deceased; that execution be stayed upon $17,684 17, and the accruing interest on said sum as above, of the judgment herein rendered against the estate of Ghambliss, as well as upon the whole judgment against the estate of Martha A. Bass, until it shall have been ascertained by said notarial partition and settlement what is the amount of the rights of Martha A. Bass, as one of the heirs of Job Bass, her father; that the amount of said rights be credited upon the judgment stayed as aforesaid, and execution be issued thereupon for the surplus only, after crediting the amount of said rights. It is further decreed, that the costs of the court of the first instance be paid by the appellants, and those of the appeal by the appellee, and it is decreed lastly, that the sum of one hundred dollars be allowed to the auditor, W. O. Horner, by this court appointed, for his services herein, and that said sum be paid by the appellee.

Vookhies, J., Ogden, J., and Campbell, J., concurring.

Slidell, C. J.,

dissenting. As there are some points in which my views do not accord with those of my brethren, I have thought proper to prepare a separate opinion.

The discussion in this case involves a subject of groat practical importance, the duty and liability of a person charged with the administration of a dead man’s estate. The plaintiffs are the heirs of Job Bass ; the defendant, the dative executor of his last will. This suit was brought by the heirs about nine years after his appointment, to compel him to render an account, and more than six additional years have since been consumed in litigation.

Before I enter upon the discussion of the legal questions presented in this cause, I deem it necessary to make a brief statement of the prominent facts to which the law is to be applied in determining the nature and extent of the defendant’s liability.

Jol) Bass, of whom these plaintiffs are heirs, died nearly twenty years ago. In September, 1835, D. 0. Bwrton was appointed dative executor of his last will, the executors named in the will having declined to act. The estate, with the exception of two negroes valued at $2400, consisted in nine mortgage notes for a principal sum of $185,000, maturing in annual instalments on the 1st day of January, from 1837 to 1845 inclusive. They were secured by'a mortgage of a valuable plantation and slaves in the parish of Carroll, sold by Bass to Hisbert, the maker of the notes. The administration of such an estate, it will be observed, was a matter of extreme simplicity. Nothing more was to be done than to receive payment as the notes matured, or if not punctually paid, collect them by suit, and in due season distribute the lunds among the children and grand-children of the testator named in the will.

Chambliss was the surety of Ban'ton on his official bond. During his life, Barton rendered two accounts, the last of which exhibits a cash balance in his hands, on the 17th day of January, 1838, of $30,771 39. On the 4th of January, 1839, Ban'ton died, and an inventory of his estate was made on the 21st January, 1839, at the making of which Chambliss was present, and signed as a witness. This inventory exhibits land valued at $17,056, and contains receipts and bills amounting to $13,010, among which were stated, “ one due bill of Covey Hood, for $1000, dated June the 21st, 1838“ one note of H. Prentice for $8000, dated April 24th, 1837;” “note of Robert J. Ohamibliss for $3000, dated March 28, 1837 “Receipt of Rowland, Smith & Go. $1000 of Planters’ Bank of Natchez, conditional, without date.” The inventory also exhibited as on hand, sovent3r-five bales of cotton valued at $3750, and twelve hundred bushels of corn valued at $804, No cash is mentioned in this inventory, but there is testimony showing that Barton, shortly before his death, had in his possession a large amount of bank notes contained in a package, and that the widow, Mrs. Barton, had a large amount of bank notes, which appear to have boon the same, after his death. It was upon the same evidence, our predecessors hold, in a suit brought by a creditor of David O. Ban'ton, that his widow was personally liable, having converted to her own use property belonging to the community which existed between her and her husband. See Lynch v. Barton, 12 Rob. 117.

In February, 1839, Ghambliss was appointed dative executor of Bass's estate. On the 4th of April, 1839, we find him receiving, in his official capacity, from Mrs. Bm'ton in her capacity of administratrix of Barton's estate, the notes of Hood, Prentice and Ghambliss, and other documents, which are described in the receipt signed by Ghambliss, as “ notes and papers belonging to the succession of Job Bass deceased, and which were inventoried in the estate of said JD. 0. Barton deceased, the said inventory being amended by an order of the court of probates, and an order that they should be given up.” We have not evidence of the tenor of Chambliss's note, but there is a copy in evidence of Prentice's note, so called in the inventory and in Ghambliss's receipt. It is in these words:

“ $3000, Providence, April 24, 1837. Due Doctor D. 0. Barton, executor of Job Bass, deceased, three thousand dollars, value received. H. Prentice.”

In June, 1839, an agreement in writing was made between Ghambliss and Mrs. Barton, in which she recites that Bcm'ton, her deceased husband, had been the executor of the estate, of her father, Job Bass ; that there would probably be a large deficit for moneys that came 'into his hands for Bass's estate ; that Ghambliss had become his official surety, without any other motive than a disinterested friendship to Barton and herself; that she was desirous to relieve the estate of her husband from embarassment, and “ avoid lawsuits or any manner of litigation in regard thereto, or relative to the aforesaid deficiencies,” and also desirous to relieve Ghambliss, and hold him harmless from his suretyship; that Chambliss was now executor of Bass's estate, and she, as an heir, was entitled to a porton of the estate in money, the amount of such portion being yet not exactly known. She then agrees that he may receive for her the proportion, whether in money or otherwise, which may come to her as heir, from her father’s estate, and hold the said proportion as the same may be divided unto the heirs, in his hands, or a sufficient amount thereof, to secure and indemnify him for his suretyship, and also to secure and indemnify the estate of Bass from loss by the defalcation; and she authorizes him to pay to the succession of Bass, out of her portion as received, the said deficiency. The argument concludes with a full covenant to hold him harmless from any loss by reason of his suretyship.

This Barton deficit is now estimated to be $-, he, Barton, having paid $5000 to a portion of the heirs, and a credit being allowed for other items to the amount of $-.

In 1840, 1841 and 1842, Ghambliss filed accounts. They are entirely silent with regard to the Barton deficit, and also the note of Prentice. The account of 1841 credits the estate, under date of 7th of April, 1840, with $1000 only, amount received from Hood, and $3000 only, which was amount of principal of his own note. It is proved, however, that he made Hood pay him interest at ten per cent, from the maturity of the bill, to wit, its date, until it was paid. It is also proved by Prentice, and by other evidence, that the note of Prentice was settled with Ghambliss on the 9th July, 1840, by assigning to Gham-bliss an invoice of goods, and by transferring to him, as executor, a claim Prentice professed to have against Mrs. Barton, for which a suit was then pending by Prentice against Mrs. Barton for a sum of $2821 41, which sum was credited on the Prentice note. It would seem from the testimony of this witness, that the settlement blended the claim as executor, with Ghambliss's individual accounts with Prentice. At all events, the value of the invoice of goods which the witness, in a subsequent part of his testimony, says he sold to Chambliss, is not shown, nor any where accounted for; and as to the assigned claim against Mrs. Barton, it is not shown that he took it under judicial sanction, nor with the authorization of the heirs. Chambliss prosecuted the Prentice suit against Mrs. Barton, and it resulted in a verdict in favor of the defendant, on the 30th of April, 1842. So that the claim thus taken in settlement of the Prentice note, proved worthless.

After the 7th of April, 1842, Chambliss filed no further account, until he was called upon to do so by this suit, which was brought on the 12th of April, 1848. In the meanwhile, besides the cash balance of $6,836 58, unpaid by him as in his hands on the 7th of April, 1842, he received large sums of money, partly by voluntary payments received from the mortgage debt and partly by suit upon the mortgage; and he also paid, during this interval, various sums of money to some of the heirs, on account of their interest in the estate.

The petition of the heirs presented a history of the administration of the estate, as far as they had been made acquainted with it, referred to the Hood and Chambliss notes as transactions obscure and unexplained in the account, charged him with omission of duty in having so long failed to present his annual accounts, and called upon him to file a full account of his administration. They also asked that he be decreed to give “ the dates of reception of moneys coming into his hands, and the dates at which the same had been paid out, on account of the succession, or to any of the heirs, and that in said account he be decreed to raise an interest account, or show in what bank the funds in hand at the end of each year, not necessary for the current year’s expenses, have been deposited; and if not deposited, that ho be decreed to pay eight per cent, on all sums in his hands, at the beginning of each year, that should have been deposited as required by law. They also charged, that he had received the amount of funds which were in Barton's hands at his death ; but if he had not actually received them, he was liable for them as Ban-ton's official surety, with eight per cent, interest from the 1st of February, 1839, until paid. They also prayed for a partition, and for such other and general relief as might seem just and equitable in the promises.

On the 8th of May, 1848, the defendant, Chambliss, appeared and asked “further time to render his account as prayed for by plaintiffs,” assigning for cause, that he had not had time to do so since the demand was made ; that there was a great number of papers to examine and calculations to make, which required much time and labor; also, that the succession was yet unsettled, that there were payments yet to be made, and property yet unsold, mortgaged for debts due to the succession ; that he was proceeding to sell said property, in May, 1848, for said purpose, when ho had been arrested by an injunction of third parties; and concluded with a prayer that no further action be had until he could, by said sale, collect all that was duo to said succession, and render a final account. It would seem the application for time was resisted by the plaintiffs; but at all'events, on the 9th May, 1848, an order was made on the cause in these words: “By consent of the plaintiffs in this case, made by their counsel in open court, and of the defendant, Robert J. Chambliss, now also in open court, it is ordered, that the said defendant file his account as prayed for, on or before the tenth day of October next, and that this cause be continued.”

On the 27th November, 1848, the executor filed an account, on which, however, he did not account for the Barton defalcation, nor show how he had kept the trust funds, nor raise an interest account as prayed for, and, as the heirs with some plausibility allege, he had consented to do. The account was accompanied by a petition of the executor, praying that the account might be deemed provisional, in consequence of a litigation pending, by which the collection of the residue of the estate was tied up. Upon the application of the executor, the cause was continued, and two months was allowed the heirs to file their opposition to the account. This they did in December, 1848, and in addition to making the various objections and claims stated in the opinion of Mr. Justice Buchanan, they declared their willingness to take their respective portions of the uncollected mortgage debts,, alleging that as there were now no debts to pay, there was no necessity that the executor should act any longer, except to divide the funds he had received. At the next term of the court, in May,. 1840, Ghambliss filed exceptions, evidently intended to procrastinate a hearing. They were overruled, and he then moved- a recusation of the District Judge. This also was overruled, and he then applied for a continuance until the next term, on the ground of the sickness of one of his counsel. The application appears to have been successful. The cause went off until the July term, when he filed a new exception, praying all the proceedings in the suit, subsequent to the filing of the original petition of plaintiffs, be set aside as null and void, on grounds too frivolous to deserve any comment. No action on this motion appears of record; but the court adjourned without disposing of it, or trying the cause. Subsequently, from the fact that the successor of the District Judge refused to sit in the cause, it was continued from time to time, and at last was brought to trial in May, 1862. Meanwhile, in 1850, Ghambliss died, and his executors were made parties. They made a payment in 1851, to a portion of the heirs on account; but only a portion of this, to wit, $7500, was paid in money, although a good while had elapsed, and they had had control of the crop of Chambliss's plantation. The residue they paid in drafts on their merchants, payable at distant dates. In the inventory of Ohambliss’s estate, no money is found, although there is a- considerable amount of notes and due bills held by him at his death, and neither he nor his executors have shown where or how he kept the trust moneys of this estate. That he received large sums from time to time, his own accounts show. If he did not use it, it is pertinently asked by plaintiffs, where was it at the time of his death ? If ho had ever deposited it for safe keeping in the bank at Providence or elsewhere, the certificate of deposit or receipt would have shown it. It seems to mo next to a moral impossibility, under all the circumstances, to suppose that Ghambliss did not mix this trust money with his own, and use it.

Prom the above state of the prominent facts, with other surrounding circumstances upon which I do not think it necessary to enlarge, my mind has been brought to the conclusion, that there has been great irregularity in the keeping of the executor’s accounts ; gross omission to report annually ; a mingling of the affairs of the estate with his own; an unjustifiable concealment of funds received and arrangements made with debtors; a postponement of the interests of the estate to his own; and, I am constrained to add, a use of the trust funds. There has also been a culpable continuous effort during a long period, to protract the litigation, and keep heirs, some of whom were minors, out of their estate.

That the executor should be charged with interest on Hood’s note, having received it, is of course too clear to require comment. Even if Hood was not legally bound under his contract to pay the interest, he did pay it to the executor, and the estate must have the benefit. The suppression, in his account of 1841, of the fact that he had received interest, and the giving credit as of 7th of June, 1840, for the principal only of an asset, which was in fact a due bill, dated more than three years previous, was a gross violation of duty, and must be characterized as a spoliation.

I also concur in charging him with interest on his own note. His account of 1841, on crediting the naked principal on 7th June, 1840, omits to state the material fact, that the note was dated March 28, 1837. Although distinctly called upon by the heirs to explain the history of that note and Hood's, and although the n'ote was in his possession, he omits, in his account of 1848, to discribe its tenor, or explain its origin, nor is it produced at the trial by his executors. As Hood's note has been proved to have been a due bill, and Prentice's obligation, of which I will presently speak, was also in that form, and as Chambliss and his executors have omitted an explanation which we may reasonably believe they could have made, I think this a proper case to apply the doctrine, omnia presumunter contra spoliatorem.

I also concur in the propriety of charging Chambliss with the amount of the Prentice due bill. The settlement he made with Prentice was without judicial sanction; it gave Prentice credit on a due bill, which Chambliss, in his receipt given to Mrs. Barton, declares is an asset of Bass’s estate, for the amount of an assigned claim against a third person, which has proved utterly worthless; the value of the invoice of goods is not shown, and, in the compromise, the interest of the estate seems to have been blended with his individual affairs. It is just to consider him, by this conduct, as having made the Prentice note his own, and liable to the estate of Bass for its amount, and at least five per cent, interest from its receipt by Chambliss. I will add, that the impression made upon my mind, by a consideration of the surrounding circumstances with reference to the obscure matter of the Prentice and Chambliss notes is, that these two persons, who were the official sureties of Barton, had borrowed of him the funds of the Bass estate.

I also am of opinion, that it was the duty of Chambliss, when he became executor, to take legal means to make the Ban'ton deficit out of Barton's estate, and not having done so, and also being himself the surety of Barton, he is answerable to the estate for the deficit.

After what I have said, it is hardly necessary to add my entire and unhesitating concurrence in the doctrine, that the heirs should not bear the bur-den of the counsel fee of $1200.

Leaving the Barton deficit for the present out of view, I proceed to consider the liability for interest on cash amounts actually received by the executor, and not accounted for by annual accounts.

I have already stated the claim of the plaintiffs touching interest, as put forth in their petition. I consider it substantially a claim for an interest ac-. count at eight per cent, with annual rests ; and under this claim, the allegation of the failure to render accounts, and the prayer for general relief, I think the plaintiffs entitled to the benefit of the 6th section of the Statute of 1837, allowing ten per cent, interest in certain cases, up to the point that eight per cent, interest calculated, with annual rests, would reach. A calculation of eight per cent, interest on a given sum upon the principle of annual rests will demonstrate, that eight per cent, interest with annual rests, is equivalent to running interest at the rate

for two years of about - 8&

for three years “ 8f

for four years 9

for five years 9$

for sis years 9f

for seven years 10 1-5

for eight years 10|

for nine years 11 1-10

and for ton years 11 8-5.

The plaintiffs have therefore substantially asked what would probably be found on calculation to amount to more than ten per cent, and should have, therefore, in my opinion, the benefit, up to ten per cent., of the Statute of 1837.

But if it be otherwise, and the plaintiffs are to be restricted to eight per cent, simply, and without the benefit of annual rests, from what time should the eight per cent, interest begin to run ? My opinion is, that it should begin under the statute, to run on items omitted in previous accounts, and that ought to have been included in them, at a date one year from the time when he received the omitted item and failed to account for it. Thus, in the present case, I think the eight per cent, on the $300 received by Chambliss, for interest on Rood’s note on the 7th of June, 1840, should run at least from 7th June, 1841 if not, perhaps, from 3d of April, 1841, date of filing his annual account after receipt of that item. I am also of opinion that the eight per cent, interest should run at least from 7th of June, 1841, upon the omitted interest of $- on Chambliss’ own note. I am also of opinion that eight per cent, interest should be charged to him upon the amount he owes for the Prentice note, at least from the 9th July 1840, being one year from the day he made the Prentice note his own debt. I conceive it would be erroneous to make a distinction between cash actually received by an executor, and a liability he has incurred at a particular date, for a sum of money by reason of his mal-administration.

To establish these principles, I proceed to notice the language of the statute, and consider its spirit and policy.

The language of the 6th section of the Statute of March 13, 1837, p. 96, is as follows : Be it further enacted, &c., That all executors, administrators, curators of vacant successions and syndics, shall, at least once in every twelve months, render to the Probate Court a full, fair, and perfect account of their administration, and on failure to do so, shall be dismissed from office, and pay ten per cent, per annum interest on all sums for which he may be responsible, from the date of the expiration of the twelve month’s aforesaid.

Now, it must be observed with reference to this section :

1st. That it is not necessary for the imposition of the burden often per cent, that the executor, &c. should have been called upon to file his account. The law commands him absolutely to render an account at least once in every twelve months. His failure to do so, subjects him to the burden.

2d. The annual account thus prescribed by the law, is not a mere account of any sort. It must be a full, fair and perfect account, or as expressed in the equally explicit and stringent language of the French text, un compte entier, juste etparfait de leur administration. Now, when a trustee who is actuated by the selfish and unfaithful motives which, I think, are justly attributable to this executor, omits to mention cash he has actually received, and amounts for which he is clearly liable, it cannot be said, quoad, such omitted items, that he never rendered a full, fair and perfect account. As to them, he is to be considered in the same light as though he had rendered no annual account at all. Whether the ten per cent, should be imposed on an executor, who had omitted an item on filing an account, by an honest mistake, or under circumstances presenting some grounds of explanation consistent with fair intentions, is a question not necessary now to consider.

Nor is it necessary now to say, whether in every case the interest under the statute should run on amounts not duly accounted for, down to the time of satisfaction, or only to the time of actually presenting a full, fair and perfect account. I think there is, in the present case, no equitable reason to arrest the interest at the time of filing in this suit the forced and imperfect account of 1848.

3d. The statute does not say he shall be charged ten per cent, interest only on cash actually collected. Its language is, “ on all siwis for which he may be responsible.”

Let us here consider also the spirit of this statute, as deducible from the section already noticed, and the context. I conceive the motive of the lawgiver to have been to keep persons acting in a fiduciary capacity from temptation to use the money of estates entrusted to them, by requiring them to deposit in bank under an enormous penalty, prescribed in the 3d section, and to render annual accounts as prescribed in the 6th. It is clear, from the severity of the law, that a great evil had existed, that there had been great abuses in the administration of such trusts, and this evil it was the object of the Legislature to remedy, by prescribing certain duties to persons clothed with such trusts, and imposing certain penalties for their non-fulfilment; so that in future, the funds belonging to heirs, creditors and minors, should be kept sacred, and not used for the profit and convenience of the trustee. And I also infer, from the language of the 6th section, and the penalty inflicted, the presumption of the lawgiver, that a trustee who fails to render an annua] account, has an improper motive for doing so, and should respond at the rate of ten per cent, for the profit or convenience which he has personally derived from the trust fund, of which he has rendered no account. Why, in the anticedent section, should an interest of twenty per cent, be imposed upon the executor, &c., who fails to deposit in bank, from the time the money came into his hands, except upon the hypothesis that the party has avoided its deposit in order to use it.

In seeking for the spirit of this important law, we may derive assistance by considering how persons acting in a fiduciary capacity, are treated by courts of equity in England and our sister States.

In the decisions of Courts of Equity in England and America, it is treated as a principle of universal jurisprudence, that trustees can only hold and act for their beneficiaries; that all gains enure to their benefit; and that interest, sometimes simple, sometimes compounded, will be given as the standard or value of the money used. The trustee is held liable for interest where he does not keep accurate and regular accounts, so as to be always ready with them when necessary, to be examined, or where the law requires them, or where he omits to distribute at the time required by law, or the terms of the trust, or where he mingles trust money with his own, or uses it, or trades with it, or makes a profit on it by way of interest or otherwise. 1 John. Oh. 85. 2 Story’s Equity, 1277 et seq. Lewin on Trusts, 324 et seq. 4 John. Oh. 302.

The Roman law sometimes inflicted a grievous interest in the nature of compound interest, but greatly exceeding it, on a trustee guilty of a gross abuse of trust. Story’s Equity, 1279.

Le tuteur ne peut employer secrétement les capitaux du pupille á son avan-tage personnel; il devrait en payer l’intérét le plus elevé. Mackeldy, Manuel du droit Romain, p. 301, in note.

Quse autem suñt pupillares usuree videudum est ? Et apparet hanc esse fir-man usurarum, ut ejus quidem pecuniae, quam quis in usus suos convertit, legitimam usur'am prmstet. Sed et sii ncgavit apud se esse pocuniam, et praetor pronunciavit contra eum, legitimas solvere debebit; vel si morara depo-sitioni fecit, et prsetor irrogavit ei legitimas. Sed et si dum negat aliquain quantitatem penes se esse, pupillis ad onera sua oxpedienda imposuit necessi-tatem mutuam pecuniam legitimis usuris accipiendi, tenebitur in legitimis. Item si a debitoribus legitimas exegit. Ex cceteris causis secundum morem provincias praestabit usuras, aut quincunces, aut trientes, aut si quae alise levi-oresin provincia frequentantur. Digest, lib. 26, tit. vii. leg. 7 § 10.

With regard to the Barton deficit, the plaintiffs have simply claimed interest at the rate of eight per cent, per annum from the date of his appointment, and not interest by annual rests.

It was the duty of Gha/mbliss, as soon as he became executor, to collect the Ban'ton deficit from Barton's administratrix, or from himself as the official surety of Barton. If he had done so, he would have had in his hands in a reasonable time after his appointment, say in January, 1840, the cash for that defalcation. If in his next annual account ho had reported this as cash in hand, the heirs might have applied to the court for payment out of' it, or to have an investment of this large sum ordered for the benefit of the estate until the proper period for a distribution arrived, which investment would have been a common benefit to all the heirs.

But he did not do this. He did not get the money, and on the contrary promised, in substance, not to exact it from the principal debtor, or his widow in community, until a distant period. Having done this without the consent of the heirs, or judicial sanction, I think he ought, as to their share, to account to them with interest, especially as the arrangement concerned his individual interest as surety.

If he had come forward in his next annual account, frankly and candidly, as a trustee is bound to do, especially in a matter in which he had a deep personal interest, and explained to the heirs the arrangement with Mrs. Barton, they could then have exercised their option either to repudiate or approve it. But he acted without their knowledge or consent, as far as the evidence informs us, and without judicial sanction.

To release him, and by consequence Mrs. Bwton, from interest on this large sum for fourteen years and upwards, does not seem to me equitable either as between the heirs themselves, or as between the heirs and the executor.


source: Caselaw Access Project

author: Slidell, 0. J. Ogden, J.,

license: Public Domain

text:
    Succession of James E. Lee.—Mrs. J. E. Lee, Appellant.
    Under the Act of 1844 though the deceased spouse leave no descendant, yet if he leave only one asCendant,- the surviving spouse will not be entitled to a usufructuary interest in the community.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      T. W. Oollins, for the widow and appellant. P. P. Bonford, and T. Oil-more, for the heirs.
    The reference of the Chief Justice to the opinion of Judge Lea, for a further illustration of the subject before the Court, renders it proper to give that judgment an insertion in this place. It is as follows :
    The issues between the parties in these proceedings are presented somewhat irregularly. The alleged heirs have hot yet been recognized, and the only evidence in support of their claims consists in the admissions of the widow, which are binding only upon herself. The only matter submitted in the pleadings, upon which the Court can adjudicate, is upon the application of the widow to be recognized as the usufructuary of the half of the community property belonging to her deceased husband, and as such to bep ut in possession of the same, on her complying with the requisites of the law. This application is based upon the provisions of the 1st section of the Act of 1844, p 99, entitled an Act relative to community property.
    It is admitted that the deceased died intestate without descendants, but leaving a mother and brothers and sisters living. The section of the law above referred to provides that when either husband or wife shall die leaving no ascendants or descendants, and without having disposed, by last will and testament, of his or her share in the community property, such share shall be held by the survivor in usufruct .during- his or her natural life. This section is free from obscurity in its literal meaning. Where the language of the law is obsure, the supposed or acknowledged moaning of the Legislature is referred to in order to explain its ambiguity; but where no ambiguity exists, it must be an extreme case which would justify the court in overlooking the litoral provisions of the law, for the purpose of meeting the supposed intentions of the lawgiver.
    It is urged that it was the object of the law in question always to- exclude col-laterals at least from the usufruct of that portion of the community property which they would otherwise have inherited. Whenever there exists a surviving husband or wife as partner in community, such may have been the object of the law; and if so, it is to be regretted that it was- not so expressed. It is not, however, the province of the courts to supply the defects of legislation. The presumption of law is that what is intended is' expressed'. In a case, such as the one at bar, it may not have been the intention of the Legislature to interfere with the rights of collaterals when there was an ascendant living; for if there were no collaterals, the surviving partner in community would nevertheless be excluded by the surviving ascendant, and if it was intended’ that the interests of the descendants should in any court be preferred to those of surviving partners in community, and to- their exclusion, it would seem that the operation of the law in favor of collaterals could work injury only to the ascendants, who, under any circumstances, would exclude the surviving partner.
    Be this as it may, I am not prepared to adopt a construction which would extend by implication the operation of a law which creates a change, or at least a modification, of the general law of inheritance as it formerly existed.
    It is ordered that the application of Mrs. Hanora Lee, widow of James P. Lee, to be recognized as usufructuary of the half of the community property belonging to the deceased husband, and to be put in possession of the same, be rejected at her costs.
   Slidell, 0. J.

Before the Statute of 1844, the share of the deceased partner in community passed to his or her lawful heirs. The right of usufruct in favor of the surviving partner as to that share is derived solely from the Statute. Being derived solely from that Statute, it can only be claimed in the cases designated in that Statute. The case where the deceased husband or wife leaves an ascendant is not such a case.

We do not consider the fact that the words “ascendants” (being the plural) as used, affects the question. We think the existence of one ascendant has the same effect as to the surviving widow’s pretensions to the usufruct, as if both the father and mother of Lee had survived him.

It is said the 2d section gives the usufruct to the surviving husband or wife in preferance even to tho children of the deceased ; and hence, by an argument a fortiori, is deduced an intention to prefer the surviving husband or wife to collateral relations. But the motive of the Legislature in giving the usufruct, where there were children of the marriage, may well have been to keep the family estate together, and provide a common home during the lifetime of the surviving father or mother, who would naturally use the estate with an eye to the welfare of tho children, at all events until a second marriage; upon which event the lawgiver, with a jealous foresight for the children’s welfare, arrests the usufruct.

I am not able to say the District Judge, to whose opinion I refer for further elucidation of the subject, came to an erroneous conclusion, and am of opinion that the judgment should be affirmed.

Judgment affirmed with costs.

Ogden, J.,

(dissenting.) The 1st section of the Act of the Legislature of 1844, entitled “an Act relative to community property,” provides as follows: .“ That in all cases hereafter, when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed, by last will and testament, of his or Jier share in the community property, such share shall be held by the survivor in usufruct, during his or her natural life. The deceased left as his only heirs his mother and a brother of the whole blood. The question is whether the above section is to be interpreted, that the brother’s share in the one-half of the community property belonging to the estate of the deceased is to be held unaffected by the widow’s usufructuary right, in consequence of the mother surviving her son and being entitled to receive her portion of the inheritances free from such usufructuary right.

Our brother Judge of the court below, regaining the literal meaning of this law as expressed, to be that the usufructuary right of the surviving spouse should only take effect when the deceased left neither ascendants nor descendants, was of opinion that the existence of one or more ascendants, although called to the succession only for a portion of the inheritance and concurrently with collaterals, defeated the surviving spouse’s usufructuary right, even as to the portion inherited by the collaterals. He thinks the language free from any obscurity, and that it is not permitted, therefore, to consider the spirit and reason of the law. The words of the law, however, must be taken in connection with the context, and the subject matter, and so taken, we think, the evident meaning and intention of the law was to exclude collaterals from the enjoyment of any portion of the community property during the lifetime of the surviving spouse. Tho right of usufruct in'favor of the surviving spouse can only be defeated by the paramount right of an heir in the ascending or descending line, and by the second section of the Act, if such heirs in the descending line be the children of the deceased, the surviving father or mother enjoys the usufructuary right. The whole Act is loosely worded, but we think it clearly results, from considering the words in the only sense they properly admit of, in connection with. the context, and with laws in pari materia, fixing the rights of ascendants as heirs, that the mother in the present case, being only entitled, as heir, to take a part of the succession, the residue of which devolves on the brother as collateral heir of the deceased, the usufructuary right of the surviving wife is only defeated pro tanto, and that the collateral heir cannot be benefited by the existance of an ascendant who, as heir, is only entitled to a portion of the inheritance.

As regards the residue of the estate falling to the brother, it is the same as if the deceased had left no ascendant, because the ascendant does not inherit that portion, and the law, in excepting ascendants and descendants from its operation could only have designed to protect their rights as heirs. The right of usu-fruct or survivorship can only be defeated by the paramount right of the heir in the ascending or descending line, and to the extent of such right. If the heir in the ascending or descending line, entitled to the whole succession, should renounce it entirely, the inheritance would devolve on the collaterals, but the surviving spouse could not be deprived of the usufruct, because the succession could no longer be claimed by an ascendant or descendant as heir.

I think the words used in the Statute do not necessarily convey a meaning different from what it would seem the Legislature must have intended, when the whole context and subject matter of the law is considered in connection with these ends.


author: Slidell, 0. J.

text:
    Succession of Marie Francoise Prudence D’Aquin—State Treasurer, Opponent— Charles Cavelier, Appellant.
    The State Treasurer, through an attorney at law, took a rule upon the curator to file his account, opposed it on the ground that the curator never deposited the funds received by him, in bank, as required by the Act of 1837, prayed twenty per cent, damages for his failure to do so, and, representing that no heirs had presented themselves, claimed the succession as belonging to the State. 32eld: that the proceeding of the State Treasurer was not warranted by law. That the 26th section of an Act entitled “an Act relative to the revenue of the State,” approved March 10th, 1845, was not applicable to a case like the present, but had in contemplation the collection of the tax of ten per cent, on interest in successions falling to certain non-residents.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      T. JI. Howard, for the State Treasurer.

      H. B. Grandmont, for opponent and appellant.
    The following opposition to the account was filed on behalf of the State Treasurer:
    In 1833, the appellant Jean TMopldh Ga/oelier was appointed curator to the vacant succession of the late Marrie Brangoise JD’Aquin. All the property of the deceased was sold, and after paying her debts, there was a balance of $698 20J cents, left in favor of the succession. This is not disputed, and it is also a matter of record that the payment alluded to was made prior to the year 1837.
    On the 17th of March last, a rule was taken by the State Treasurer, through his attorney, The. H. Howard, Esq., to compel the aforesaid curator to render an account of his administration and produce his bank book. That rule was never tried, but the curator rendered his account accompanied with the necessary vouchers.

      The Treasurer then filed an opposition to that account, praying that the curator be charged with twenty per cent, per annum on the balance in his hands, from the 13th of March, 1837, day on which, it is alleged, he was bound to deposit in bank the said funds, in conformity with the Act of the Legislature on the subject.
    The court below sustained the opposition and the present appeal was taken.
    The appellant is confident that your Honors will reverse that decision for the following reasons:
    1st. That there is no law to justify the action of the State Treasurer in the present instance and that the Act of 1845, sec. 26, p. 68, upon which he relies, and entitled an “Act relative to the revenue of the State,” was passed only with the view of securing the payment of the tax imposed upon vacant successions inherited by foreigners or non-residents.
    2d. That the right to compel curators of vacant estates to account and pay over into the State Treasury, the balance in their hands, belongs to the attorney appointed by the court to represent the absent heirs. 0. 0., Art. 1183, 1184 et seq.
    3d. That the State has only the right to sue by its proper officers, the aforesaid curators, when they fail to pay over the balance of their accounts within three months from the date of the judgment, rendered on said accounts. 0. 0., Art. 1196.
    4th. That the mode of proceeding resorted to in this case, is not the one pointed out in the Act of 1837, which being sti'icte juris, cannot be supplied by another mode.
    5th. That the curator in this case was never bound to deposit in bank the balance in his hands.
    His obligation was to pay over the same into the State Treasury, to be kept there as a deposit for the absent heirs, after a judgment of the court ordering him so to do.
    6th. That the State being neither a creditor nor a party interested, could not claim the benefit of the Act of 1837. The State stands, in this case, as a mere depositary, and cannot exercise other rights but those mentioned in the aforesaid articles of our Civil Code.
    The appellant, therefore, respectfully prays that the account by him rendered, be homologated, and that he be discharged on his paying the balance in his hands into the State Treasury.
    The petition of opposition of Th. H. Howard, attorney for the State Treasurer, to the account filed by Jean Théop, Cavelier, f, m. c., curator of the above entitled succession, respectfully shows, that he opposes said account for this, to-wit: That said curator never deposited the funds received by him, in said capacity, in bank, as required by law, Act of 1837; and not having done so, is liable to pay interest of twenty per cent, per annum, as fixed by said Act upon the amount in his hands from the date of said Act, and should have so charged himself in said account; that no heirs having presented themselves, such succession belongs to the State: wherefore opponent prays that said account may be amended so as to charge said curator with twenty per cent, per annum interest, on the amount of the funds belonging to said estate in his hands, from the day of 1837, and that he be ordered to pay over the balance due said estate into the State Treasury, according to law and for general relief.
   Slidell, 0. J.

One of the questions presented by the appellant is, whether the State Treasurer, represented by a member of the bar, has power to act for the State in this proceeding, which commenced in a rule by the State Treasurer upon the curator to file an account, and has resulted in a judgment on opposition to the account condemning the curator to pay twenty per cent, interest upon the ascertained balance in his hands.

As a general rule, the State appears in judicial proceedings in its own name and by its Attorney General or District Attorney, a public officer appointed or elected to prosecute or maintain the interest of the State in such proceedings. The power of the State Treasurer in the present case, which, if it exist, is an exception to the general rule, is claimed under the 26th section of an Act entitled ‘‘an Act relative to the Revenue of the State,” approved March 10th, 1845, which reads as follows: “ That the State Treasurer be and he is hereby-empowered to employ and appoint attorneys to examine the proceedings in vacant successions and absent heirs, and to collect what sums should have been paid by the curators of said vacant estates, and that as their fees, said attorneys thus employed, shall receive ten per cent, on all moneys which they may cause to be paid in the State Treasury.” Our opinion is that this law had in contemplation, the collection of the tax of ten per cent, on interest in successions falling to certain non-residents, the amount of which tax executors, curators, &c., were required to retain and to pay to the State Treasurer in certain cases, or to the Sheriff, in certain other cases, which latter officer was required to pay over sums thus received as in case of other taxes collected. Act of 1842, page 436. "We are led to this interpretation by the applications of the familiar rule, noscitur a sociis. Taxation and the mode of assessing and collecting taxes, are the main subjects of the statute, and the title is, “an Act relative to the Revenue of the State.” Taxes on such interest in successions properly fall within that description; but money paid into the Treasury of the State, in the absence of heirs of the deceased, there to remain in deposit until claimed, is not a part of the revenue of the State. Moreover, ample provisions had been already made before the Act of 1845, to compel curators, &c., to pay the funds of vacant successions into the treasury, whereas no special provision of law, of which we are of aware, existed for the collection of the tax above mentioned. It was already provided by the 1196 Article of the Civil Code, that if curators, &c., neglected to pay the funds of vacant estates into the hands of the Treasurer, it was the duty of that officer to denounce them to the Attorney General or District Attorney, who were required thereupon to bring suit.

The power of appearing for another in judicial proceedings, is a very grave power, and one which the law carefully scrutinizes in the case of individuals; and the importance of such a power is obviously not to be less appreciated in the case of the State. The consequence of a power to appear for another, in a court of justice, is the irrevocably binding force of “ the thing adjudged” upon the party for whom the appearance is made; and where the interests of the State, which are the interest of all its citizens, are involved, courts of justice should not pass upon those interests unless the State is properly before it through the officers recognized as its representatives by the Constitution or law. The amount involved in the present case is not large, but the principle is important, and has been the subject of our careful consideration.

It is therefore decreed that the judgment be reversed and that the cause be remanded, with instructions to to the court below, not to act further upon the account filed by the curator until service of reasonable notice of such filing upon the Attorney General, the costs of appeal to be paid by the appellees.