Graham v. Davidson, 22 N.C. 155, 2 Dev. & Bat. Eq. 155 (1838)

Dec. 1838 · Supreme Court of North Carolina

22 N.C. 155, 2 Dev. & Bat. Eq. 155

JOHN D. GRAHAM, Adm’r of ELIZABETH E. GRAHAM, v. GEORGE L. DAVIDSON, et al.

There is no trust which can be reposed in one person over the property of another, in regard to the management whereof, a full and detailed account is more imperiously demanded, than in that which the law confides to a guardian over the estate of his ward. Hence where an alleged settlement is set up by a guardian as a bar to an account,-and it is not seen that any account was stated — nor what were the matters embraced within the attempt to settle — and the guardian himself will not swear, that so far as it went the settlement was correct — but leaves the ward to make full proof if he can that it was not correct — it will be no bar to a full account from the guardian.

Where an executor of an estate becomes guardian to the legatees, an account from the guardian necessarily requires an account from him as executor, for the purpose of ascertaining the funds'which came or ought to have come to his hands as guardian.

Where one of two wards interested in the same estatm^nakeru.^ settlement with their guardian on behalf of himself and the otha^vartQTi^&k-et'^U not be thereby precluded from calling for a full accoiWf^®¿|h^i!Kaá^^,iS^wera not a party to the settlement. » ' ^ '©>/!!■

When two co-executors make a joint return of injwtarias andaccounts ojsales, either will be answerable for what appears t|j|pltt|.|^:e§|i^^||^^®what came to the hands of the other alone. if "' r|

Where an executor returns an inventory of deb®du»tl|egBíate wjíjjgut gating them to be desperate, or doubtful, he will be hffld TOptftiySiMiePI*Bi,mnless he can show that there were set-offs against trKtgg^pr that thedebjins were insolvent so that the debts could not be collected. r::-:

Where a testator for the purpose of paying his debts and schooling his children, created a fund arising from the sale of his goods, the obligations due to him and certain other claims, and then directed that his negroes,at a certain period should be divided between his son and daughter, two thirds to the son and one third to the daughter, and that the.hires of. the said negroes should be divided in like manner, it -was held that the son took two thirds of the negroes and their hires only, and that the property composing the fund for the payment of debts and schooling the children, not wanted for those purposes, was given equally to the son and daughter (who were the only children) by implication, or was undisposed of by the will, and therefore was to be equally divided between them as next of kin.

An executor cannot claim commissions upon his disbursements, if it appear that he has been allowed them upon the amount of the estate, and the court deem that allowance sufficient for his trouble and services.

A debt returned in one inventory without comment, will not be charged against the executor, if in a subsequent one, it be stated that the same was believed to have been paid to the testator, and the debt appears to have been due several years prior to the testator’s death, and withal was barred by the statute of limitations.

In a devise of a certain farm and “ all stock on the same,” the words " all stock ” will comprehend only the animals used with, supported by, or reared upon the farm, and will notinclude the plantation tools and the gathered crop that may be on it.

Interest, according to the usage of our courts follows debt as its ordinary attendant, and is to be charged against an executor in his account without showing that he made interest -or used the funds himself. And an executor in this state will be charged with interest on notes and other debts from the time they become due, and upon sales from the expiration of the time of credit, up to the settlement of the estate, if no interest account were kept to show that less interest was in fact received.

In calculating interest upon payments made by an executor, consisting of a great number of small items, the commissioner may ascertain the amount of each year, and allow interest thereon from the middle of that year.

Where one person was appointed guardian of A, and a second of B, and they executed a bond as the joint guardians of both wards, and the first guardian delivered over money and effects belonging to A, to the other, it was held that the first was the sole guardian of A, and the other was but his agent for whose acts he was responsible; or that if the guardians were to be considered as joint for both wards, still the first was responsible for the acts of the other, upon the principle that where by the act or agreement of one trustee, money gets into the hands of his co-trustee, both are answerable for it.

An allotment of personal estate made to a widow upon her dissent to her husband’s will, by a jury under the provisions of the act of 1784 (Rev. c. 204) gives her at least a primafacie warrant to exact payment of the amount, and after the lapse of thirty years a payment will be presumed; and if a legatee file a bill for an account against the executor, in which he designs to impeach the validity of the assignment to the widow, she ought to be made a party so that she may sustain it, and if she cannot sustain it, that she may be made liable in the first instance for what has been improperly received under it.

■ Charles Conner, formerly of the County of Mecklen-burg, died in the month of January, 1804, having previously duly executed his last will and testament in writing, whereof he appointed his wife Ann, the defendant George L. Davidson, Charles Harris, and Peter Epps, of Virginia, executors, who all caused the said will to be proved and took upon themselves the trust thereby confided to them. The testator left surviving him his widow and two children, a son, Henry W. Conner, one of the defendants to this suit, and a daughter, Elizabeth Epps Conner. By his will he devised and bequeathed to his said widow, land and personal property during her widowhoodother personal property for life, certain negro slaves absolutely, and an annuity of one hundred dollars for five years. He devised to his son Henry several tracts of land, among which was one called the Greenwood Farm, “ with all the appurtenances belonging to the said land, including all stock on the same,” absolutely; also a tract of land called Given’s, “ if not needed to defray debts,” and bequeathed to him several personal chattels, a good horse, carriage and harness, with a negro boy Jack, exclusive of his dividend of the others.” The testator devised to his daughter several tracts of land, and bequeathed to her two beds and furniture! and two negro women, upon condition that if she should die before arriving to mature age, all the said property should descend to her brother; and further declared his will that she should be furnished with a horse, saddle and bridle. In a subsequent part of the will the testator directed that his store of goods should be sold in order to help to discharge debts, and that the obligations then in suit, and to be put in suit, should be collected and debts discharged'therewith, and if there should be any over-plus — the same to be put on interest for the use of schooling his two children, but in case they should prove insufficient, Given’s plantation to be sold. He further directed that the funded stock of the United States which he held in the loan office in Richmond; (Virginia,) should be removed to Raleigh, and the interest arising therefrom be put to the use of his children, and in case the interest should prove insufficient then the principal to be made use of, but if the interest be sufficient, the principal should not be drawn until his son should come of age, “ which sum, whatever it may be, is to be at his disposal.” He further directed that application should be made to Mr. Wickham, of Virginia, respecting a decree in Chancery which was rendered in his favor against Likely, Wardrobe, and others, and whatever might be obtained thereon after payment of expenses, “ to be put on interest for the use of his children with the general stock.” The testator further declared his will to be that his negroes not before mentioned should continue under the jurisdiction of his executors during his wife’s widowhood, or at least until his son should arrive at age, then a division thereof to take place as follows, two thirds to his son, and one third to his daughter, the negroes to be hired out in case his wife should marry before his son arrived at age, and the monies arising from said hires to be put on interest and divided as before mentioned in the division of negroes.

After the probate of the will, the widow of the testator under our act of 1784, (Rev. ch. 204,) caused her dissent to the provision therein made for her to be recorded, and thereupon a jury was summoned to allot, unto her her dower in the lands of which her husband died seized, and also to allot and set off to her the one third part of his personal estate to which she was, under that law, entitled. The jury on the 18th July, 1804, made the allotment accordingly. In this, was se(; f0rth that the personal estate of the testator was valued by them at $18,306-ía5ü¡r> her third part whereof was $6,102-,Vo — that they found this sum discharged in part by personal property bequeathed to her by the will, which property was specially set forth with the value of each article, amounting in the whole to $3,043, leaving a balance of $3,059-^„\; that this balance was further lessened the sum of $620-^, by articles of personal property not willed, naming each and its value, and reducing the balance to $2,138-Vo. The last item in this list was thus expressed: “ The jury finds there is $100 annuity to be paid to the widow annually; the jury deducts $60 for prompt pay, $440.” They concluded their return thus: “After the executors pay the relict the said $440, there remains due to the widow this last balance of $ 2,138 W Peter Epps, one of the executors of Charles Conner, lived in Virginia, and •transacted no part of the business of administering the estate in North Carolina. During the life of Charles Harris, the said administration was conducted by him and George L. Davidson, jointly. Harris intermarried with the widow in the latter part of 1804, or in the beginning of 1805, and died in 1805. The sole administration of the estate in North Carolina was thereafter carried on by Davidson. At the April term, 1809, of the County Court of Mecklenburg, George L. Davidson was chosen guardian by Elizabeth Epps Conner, and Robert Worke was chosen guardian by Henry W. Conner, and at the next July term, Davidson and Worke executed a bond as joint guardians of the said Henry and Elizabeth. In the month of June, 1815, the said Elizabeth being then about 18 years of age, intermarried with the plaintiff, John D. Graham, and shortly thereafter a division was made between him and Henry W. Conner, of the negi’oes belonging to the latter and his sister. On or about the 1st of June, 1821, Mr. Conner and Mr. Davidson made an attempt at a settlement respecting the latter’s liability to the former and to his sister, upon his accounts as executor of their father, and as guardians ; and thereupon Davidson executed his note to John D. Graham for the sum of $283-ffi, and to Henry W. Conner for the sum of f566-¡^-, to secure the payment of the balances admitted by him ’to be due to them respectively. What were the debits and credits in that incomplete or attempted settlement is unknown; and the principles upon which it was made are also unknown, except that it was then supposed by the parties that under the will of Charles Conner, his son was entitled, after deduction of the widow’s allotment, to two thirds, and his daughter to one third only of the personal property of their father, which was not exclusively bequeathed to one or the other of them. In the month of January, 1825, Mr. Conner made a settlement with Robert Worke, because of his guardianship as well of his sister as of himself, by which settlement a balance was found due from Worke of $537-^0\. And Worke having died in 1827, he caused an action to be instituted thereon against Worke’s executors, and recovered judgment in the names of Henry W. Conner, and John D. Graham and wife — but it did not appear whether any thing had been collected or could be collected upon that judgment. After ineffectual efforts to settle amicably between the parties, the present bill was instituted by John D. Graham and wife, and subpoenas sued out thereon returnable to the Fall Term, 1829, of Lincoln Superior Court, against George L. Davidson, Henry W. Conner, and John Mushat, and Mary Worke, executor and executrix of Robert Worke, deceased, in which they charged that they were not parties to the settlement between the defendants Davidson and Conner; that at the time thereof the plaintiff John was wholly ignorant of what was due to his wife, and received the note from Davidson, merely because Davidson and Conner represented that much to be due ; that upon subsequently examining into the management of the estate upon the papers submitted by them for his consideration, he had found gross mistakes and errors ; that there were omissions in the inventories returned by the executors of Charles Conner; that Davidson claimed commissions on the sum allotted to the widow of his testator and paid over by him; that he had claimed more than was right because of debts alleged by him to be desperate ; that the account of the guardianship had' never been settled, that Davidson had paid over to Conner more than the latter was entitled to receive ; in particular that he had paid over to Conner, as his, the proceeds of a large quantity of corn, cotton and tobacco that was 'on the Greenwood farm, one half whereof belonged to the plaintiff Elizabeth ; that he had accounted with, and paid over to the defendant Conner, two thirds instead of one half only, the said Elizabeth being entitled to the other half, of the sales of goods and of the debts due to Charles Conner ; that the- interest of the loan office certificates had not been applied to the education of the children of the said Charles, but the whole received by Henry W. Conner, of which they contended one half was due to his sister ; that they were no parties to the settlement made by the said Henry with Robert Worke, nor to the judgment obtained thereon against his executors, and that the guardianship never had been settled ; prayed that these (alleged) settlements might be opened, and that the defendant Henry should account for any excess he had received from Davidson or Worke, and for general relief.

The defendant, Davidson, answered and stated that until the latter part of the year 1805, the management of the estate of his testator in North Carolina, was conducted chiefly by Charles Harris, tvho had lived with the testator in his life-time, and in whose possession the bonds, notes and accounts were left for collection, but that after the said Charles’s death, it devolved upon himself; said that it would be extraordinary if, in the management of so large an estate thrown into confusion, also by the dissent of the widow, there had been no mistakes ; “ that defendant, however, did not admit the errors charged, but left complainants to the proof thereof, more especially as the complainant, John, had had possession of the papers of the defendant since the settlement in 1821; said, with respect to a particular debt, a judgment against James Kerr, the amount whereof was charged as left blank in the inventory, that he could not tell who collected it; but that the same with sundry others were at the time of taking that inventory in the hands of Harris, as appeared from a memorandum given to him by Harris at the time, and which by his answer, he declared that he had ready to produce ; that Peter Epps managed the estate in Vinginia, which consisted of the funded stock and the demand against Likely, Wardrobe, & Co., that he received a small part of said funds but paid them over to the widow in part of her allowance, or to the said Peter, and was ready to produce the vouchers therefor when required; that the defendant, Henry W. Conner, might have received some part thereof, and believed that such was the fact, because the defendant held the receipt of the said Henry for the receipt which he, the defendant, took from Epps when he paid over a part of the funds. Defendant further stated in this, his answer, that “ in the year 1821, the plaintiff, John, the 'defendant, Henry, and himself being all present, they fixed upon a day for a final settlement of the estate; that the said plaintiff declined attending, observing that he would leave the matter to the said Henry to settle ; that himself and the said Henry had a meeting, and an amicable settlement took place, so far as this defendant’s responsibility extended ; that the said John and Henry and this defendant again met, and the papers and settlement which had taken place were tendered to the plaintiff for examination, but it was declined, the said John still alleging that the said Henry knew more of the matter in hand than he did.” He declared that “ the division” was then made between the said John and the said Henry upon their own judgment, and that he executed his bond to each for the respective parts of the balance as arranged between them, and according to their directions, and he prayed to have the same benefit of these matters as though he had specially pleaded them. This defendant further answered that he and Worke became guardians of the children of his testator in 1809, and admitted that for two years he had control over the guardian fund, but said that about the year 1811 he handed over to Worke all the bonds for hire and rents which he had taken for the two preceding years, that Worke managed the whole concern of the guardianship afterwards, and therefore defendant insisted that he was not responsible for any mismanagement if any such took place. He further insisted that “ a settlement of the guardianship had taken place since Worke’s death with his executors, that the guardian funds which defendant had handed over to said Worke, were included therein and a judgment rendered for the amount, and he in * sisted on these facts as though he had specially pleaded the same.-

Henry W. Conner by his answer admitted that there never had been any formal settlement between himself and the plaintiffs, and declared his willingness to have a full and correct settlement made under the directions of the Court; stated that he and the plaintiffs had at different times received money from Davidson and Worke as it was wanted, and that after coming of age he. had frequently applied for money, and appropriated what was received as well for his sister’s wants as for his own; he contended that under a fair construction of his father’s will the residue of the personal property was to be distributed two thirds to himself and one third to his sister; said that he was utterly unable to set forth what part of the estate was settled for by Davidson, either as executor or guardian, nor was he able to say what part had been accounted for by Worke otherwise than by the settlement which he made with Worke in 1825; that the plaintiff, John, at the time of the settlement referred to with Davidson was furnished by the latter with his vouchers both as guardian and executor, and was requested by the defendant to examine them, and assured that so far as he was concerned any error detected should be rectified ; that he was yet ready and always had been, so to do, and the moment he ascertained the dissatisfaction of the said John with the settlement so made as well with Worke as Davidson, he proffered to the said plaintiff to submit the difference between them to the arbitration of any intelligent gentleman. In regard to the settlement with Worke, the defendant stated that he had been urged by the plaintiff, John, to bring Worke to a settlement; that this settlement was made (as defendant believed) in the presence of the said John; that it was signed only by Worke and this defendant; but that at all events a copy thereof was afterwards delivered to the said John; and that after Worke’s death, the defendant, in order to secure whatever might be obtained from his estate if any thing could be had, and certainly not with any view to prejudice the rights of the plaintiffs, caused the settlement to be put in suit, when a judgment was rendered to the benefit of one third, whereof the plaintiffs were admitted to be entitled. The defendant contended that by the construetion of the will of his father he was entitled to every thing that was on the Greenwood farm, and that the plaintiffs had improperly received a part ther'eof; stated that he had received of the Likely debt about $~20 from Peter Epps in Virginia, the one third whereof he had accounted for to the plaintiffs; that he had no recollection of having received more, and believed that the residue had been applied to the payment of his father’s debts in Virginia, and to the support of himself and his sister, except a small balance which he believed to be in the hands of the representatives of Peter Epps, and the sum of about $270 then in deposit either in the United States Branch Bank at Richmond, or in the office of the clerk of the Federal Court in that city. With regard to the funded debt, the defendant stated that when he arrived at age he received the whole that was then unpaid, the residue having been applied as directed by the will. To this the defendant denied that the plaintiffs had any claim; and the defendant further set forth certain credits which it is unnecessary now to particularize, but which he claimed to be allowed him in account with the plaintiffs.

The executors of Worke relied in their answer upon the settlement made by their testator in his life-time, and the judgment thereon rendered after his death, as establishing what was due from him ; denied that they knew of any errors therein, and alleged that they had fully administered all the assets of their testator before they were served with process in this suit.

To these answers there was a general replication, and thereupon and before a hearing of the cause at the Spring Term, 1830, it was ordered that it be referred to the Master, with the assistance of Thomas Dewes, Esq., to take an account of the estate of Charles Conner, deceased, which came into the hands of the defendant Davidson, as his executor, and how the same had been expended ; and in that report to set forth what amount of money or property, was set apart by the will of the said Conner for the payment of debts, what amount was set apart for educating his children, and how expended, and on whom ; what amount was for ■ distribution and how divided ; and what sum or property was undisposed of by the will; and that the report set forth qle sums which came into the hands of George L. Davidson and Robert Worke as guardians, and how disbursed. At the subsequent term, in 1830, it was ordered that it be referred to the Clerk and Master, to take an account and report; that he have power to call the parties before him, and examine them on oath. At the Spring Term, 1831, the Clerk and Master made his report, and at the same term it was ordered that the rule of reference at the last term be amended so that the reference be without prejudice. To the report, exceptions were taken by the parties ; at the Fall Term, 1832, the cause was set down for hearing, and at the August Term, 1833, was upon affidavit of the plaintiff, John D. Graham, removed to the Supreme Court. After the cause came here Mrs. Graham, died and her husband was by an order of the Court permitted to revive the cause as her administrator. At the June Term, 1834, of the Supreme Court, the following order was passed: “ The plaintiff’s counsel admitting that certain exceptions taken by the defendant to the report of the Master made in the Court below, and which affect the whole report, are well founded, it is thereupon ordered by consent of the parties that the said report be set aside, and that the cause be referred to Mr. Commissioner Freeman, to state the same accounts as are directed in the decree made in the cause below, and that he report at the next term. It is also ordered by the like consent that the reference be without prejudice to any matters of defence set up by the defendants or either of them.” Under this order the commissioner made his report, to which very many exceptions were taken by the defendant Davidson, several by the defendant Conner, and many by the plaintiff.

It is not deemed essential to state the exceptions of the different parties in detail, as the nature of those of which a particular notice is necessary, will be sufficiently seen in the opinion of the Court.

By an arrangement between the counsel, the cause was heard upon the pleadings and proofs, and the exceptions argued at the same time, by

Winston and W. H. Haywood, for the plaintiff,

Hevereux, for the defendant Davidson, and

Badger, for the defendant Conner.

Gaston, Judge,

after stating the pleadings and proceedings in the cause as above, continued as follows : Upon the hearing very little material evidence has been offered on either side with regard to the matters put in issue by the pleadings. The plaintiff has exhibited several letters received from the defendants Henry W. Conner and George L. Davidson in answer to applications made to them by him for a settlement of the matters involved in this suit. Those of Mr. Conner are all in accordance with the spirit manifested in his answer, expressive not only of willingness, but of solicitude that a settlement should be made which might render justice to his sister, and declaring his hope that Mr. Davidson would not hesitate in complying with the plaintiff’s wishes, and going into a settlement agreeably to the will of his testator. Unfortunately, Mr. Davidson pursued a different course. He refused to make any settlement— insisted that he had nothing to settle — that he had already settled in 1821, and that it was for Graham and Conner to settle and show a deficit against him.

No account is' exhibited to us as having been made at the time of the alleged settlement in 1821 — no evidence of any kind offered to show what was the basis of the alleged settlement, or what matters were included in it — and no receipt or discharge of any kind from John D. Graham or Henry W. Conner. The settlement with Worke is exhibited. It purports to be an account current of Robert Worke as guardian of Henry W. and Elizabeth E. Conner, on which a balance is struck in their favor of $602iV¡r, due on the 25th July, 1825, and is signed by R. Worke and Henry W. Conner. It appears from the deposition of James Graham, that after the death of Worke he was informed by Mr. Conner, that he had settled his business with Worke, and wanted a judgment taken for the balance acknowledged to be due thereon — that the witness was referred to some person, as he thinks, John Mushat, one of Worke’s executors, for the settlement — that the same was afterwards handed to him, as he believes, by Mr. Mushat — that upon examining it he found the balance thereon stated acknowledged as due to Mr. Conner and his sister, the wife of the witness’s brother John and that thereupon without any consultation with his brother, and so far as he is informed without his brother’s knowledge, he issued a writ in the joint names of Henry W. Conner and John D. Graham and wife against the executors of Worke in the County Court of Iredell, where the executors resided, and had judgment accordingly.

We have no hesitation in saying that the plaintiff is entitled to a full account from the defendant George L. Davidson, as guardian of his deceased wife and intestate, and of course to an account from said defendant of his administration of the estate of Charles Conner, for the purpose of ascer-táining the funds which came or ought to have come to his hands as her guardian. ' There is no trust which can be reposed in one person over the property of another, in regard to the management whereof a full and detailed account is more imperiously demanded than in that which the law confides to a guardian over the estate' of his ward. It does not appear that any account has been rendered thereof. An effort towards an estimate of the balance that might be due from Mr. Davidson has indeed been made between him and Mr. Conner, and payments were made in pursuance thereof, but to hold this loose transaction to be an account settled between the guardian and Mrs. Graham — when it is not seen that any account was stated — nor what were the matters embraced within the attempt to settle — when the guardian will not himself swear that as far as it went the same was correct — but leaves the ward to make full proof if she can that it was not correct — would be to violate, as we think, the plainest principles of equity. It is greatly to be regretted that Mr. Davidson should have been so advised, for otherwise there is little doubt but that all the matters involved in this expensive, tedious and vexatious suit might long since have been arranged, and with a greater likelihood of doing justice to the parties than is now practicable. We also hold that the plaintiff is not prevented by the account stated between Mr. Conner and Mr. Worke from having a full account either against Davidson or Worke’s executors, because of any of the matters professed to be thereby settled, if for no other reason, for this, that it is not shown that he or bis wife was any party thereto. What influence that settlement may have as evidence in regard to items of which full proof cannot now be had, may be a proper subject of inquiry when considering of the exceptions. The plain, tiff, upon the answer of Mr. Conner, is entitled to an account of the matters therein admitted as remaining to be settled between them.

To understand the nature and bearing of the exceptions it is proper to advert to the manner in which the commissioner has taken the accounts reported. In the first place he has stated an account marked A, and called the executors to account, for the purpose of ascertaining what was the balance in the hands of Davidson on the 1st of January 1810, when he entered upon the exercise of his office as guardian, due to Mrs. Graham, then Miss Conner, upon her father’s estate. In the next place he has stated an account marked B, between Worke and Davidson as her guardians, commencing with the 1st of January 1810, and terminating with the year 1817, in which the balance ascertained as due to her upon account A, enters as a part of her estate. The commissioner then stated an account C, between the defendant, Henry W. Conner, and the said Worke and Davidson as guardians, commencing and terminating at the same time with the account B ; and having ascertained that in 1817 the said Henry had received not only what was due to him, but a part of what was due to his sister from Davidson and Worke, he commenced a new account D, between Dayidson and Worke and the plaintiff’s intestate, in which they are credited with the balance in their favor on the account C, and continued this account D to the day of making 'he report. In the account D the guardians are further credited by all their subsequent advances made to either of '.heir wards. The account E, is between the plaintiff and the defendant, Henry W. Conner, in which the latter is debited with all that he has received beyond what was due to him'. The final result as stated by the commissioner is, that the defendant, Davidson, owes to the plaintiff the sum of $4,406¡Vs, of which the sum of $3,532-jVV is principal, and that the defendant, Conner, owes to the plaintiff the sum of $3,103-íV¡t, of which $ 1,24Of<jL0- is principal money.

frrence by consent to tosíate an andado ingsoto certahV1 omiskon to set them furnish no objection to the report, if it ;appear that they are not necessary for the de-termination of the arising3 ingsPlead~

The defendant, Davidson, hath taken twenty-one exceptions to the account A, and eight to the account B; the defendant, Conner, hath taken eleven exceptions, and the plaintiff hath filed two sets of exceptions, the first containing five, and the second called additional exceptions, containing thirteen.

In noticing these, it is deemed advisable to dispose of the matter embraced in the 20th of Davidson’s and the last of Conner’s exceptions, which present in substance the same objection, that the commissioner hath not so made his report as to pursue the order of reference, or to embrace and apply to the matters arising on the pleadings, or to show upon what principles the several accounts accompanying the report have been stated. It has been seen that the reference was made by consent of the parties and without prejudice ; in effect it is their reference, and as such is regarded by us. So far as this objection is founded upon the omission of the commissioner “to set forth what amount of money or property was set apart by the will of Charles Conner for the payment of debts, and what amount was set apart for educating his children,” it is overruled as immate-m-L It conclusively appears upon the face of the report, that the funds thus provided by the will were more than sufficient for these purposes, and therefore an inquiry as to ^ie amount °f either is not apparently necessary for the determination of the matters arising on the pleadings. The residue of this objection, except in one particular, is unfound-ec* ’n htct, for the report pursues the order of reference by stating an account of. the administration of the assets of Charles Conner, what amount remained for distribution . , tanl, for the Court holds m regard to the property referred that whether it be embraced in the will, or not disposed thereby, it was alike divisible into equal shares between among the children and how the same was distributed, and sets forth the sums which came into the hands of Davidson and Worke as guardians, and how disbursed. The omission to state, which is the particular above excepted, the value of the property undisposed of by the will, is unimpor-

the son and daughter of the testator, and the commissioner hath so treated it in his report. The principles upon which the commissioner hath proceeded in stating the accounts are declared with sufficient distinctness to enable the parties and the Court to judge of their correctness, and to understand their application; and the defendants have made these principles and their ■ application the matter of other exceptions. These therefore are overruled. •

The first five exceptions of the defendant, Davidson, to the account A, may be properly considered together. This defendant objects to his being charged with the amount of notes returned in the inventory, with a judgment against James Kerr therein returned, amount not stated but since ascertained, with the amount of book debts also therein contained, and with the amount of certain sales set forth in the account of sales, because there was no proof that the same or the proceeds thereof came into the hands of Davidson ; because there was proof that a portion was collected by Charles Harris, and because a part thereof was bad, and a part subject to set-offs. The commissioner, we think, acted correctly in so charging the defendant. All these matters of charge were contained in inventories and accounts of sales jointly returned' by Harris and Davidson, and no evidence was offered by the latter to show what part, if any, came to the hands of his deceased co-executor. From the year 1805, in which Harris died, Davidson alone acted as executor of Charles Conner. In 1809, he was appointed guardian to the plaintiff. It was his duty as guardian to secure whatever portion of Charles Conner’s estate was due to her. It is proved that Harris left a good estate., and no attempt of any kind was ever made by Davidson to collect from Harris’s representatives any alleged balance due from Harris to Conner’s estate. Besides, Harris married the widow, and Davidson is credited for large sums of money paid in discharge of her distributive share of the estate. It is not to be presumed that such payments would have been made, if her husband held in his hands an amount sufficient to satisfy and extinguish, this demand. The only proof offered that Harris received any part of the estate, is a memorandum exhibited by Davidson, in which Harris ac. knowledges himself accountable for a number of notes, each particularly stated, amounting altogether to about $300. for judgment against Kerr, it was obtained at the last term of Iredell County Court preceding the testator’s death ; it is proved that Kerr was abundantly able to pay it, and Mr. Davidson in his answer to a particular charge in the bill relative thereto, says only that he does not remember who collected it. Besides, Harris’s vouchers for disbursements have been brought before the commissioner by Davidson, and he has had the same credited to him. As to set-offs against the debts inventoried— or as to credits because of the debtors becoming insolvent — the debts not being stated in the inventory to be desperate or doubtful — • these were matters which could not be assumed by the commissioner without proof, it will be seen in the consideration of a subsequent exception to what extent such proof has been made. As to the sales, the accounts returned not only show, but it is proved by witnesses that they were conducted by Davidson as well as Harris, in person. These exceptions are therefore overruled.

The sixth exception is, for that the commissioner hath charged the defendant with the sum of one hundred dollars in the hands of the widow. The additional inventory annexed to the second account of sales, (marked E,) sets forth this sum as part of the assets of their testator with which the executors are chargeable. No doubt they took care when paying her the amount afterwards assessed by the jury for her distributive share, to claim the said $100 as an advance pro tanto. This is also overruled.

The seventh exception has been withdrawn. The eighth of this series of exceptions, as well as the first exception to the account B, and the first and sixth of the defendant Conner’s exceptions, depend upon the construction of the will of Charles Conner, and involve the main subject in contestation between the plaintiff and the last mentioned defendant. It is contended on his part, that the fund created by the testator for the payment of his debts and the schooling of his children, arising from the sale of his goods, the obligations due to him, and the judgment against Likely, Wardrobe & Co., and the interest upon the loan office certificates — subject to those charges — is by the will to be distributed, two thirds to his son and one third to his daughter. This construction cannot be maintained. The distribution thus directed is expressly restricted to the negroes and the hires of the ne-groes. The fund in question either passed to the two children equally by implication, from the application directed of its use, or was undisposed of by the will, and if undisposed of, it is equally divisible between them, because the mother takes only what was allotted to her by the jury upon her dissent, and they are his next of kin. These exceptions, therefore, must be overruled — except as to that part of the first exception to account B, which will be hereafter mentioned.

The ninth exception, that the defendant is not allowed commissions on his disbursements, is overruled, for the commissioner hath allowed five per cent, commissions to the defendant upon the amount of the estate. The tenth exception is sustained for the sum of $138-¡Yo, and the interest thereon since January, 1791, wherewith the defendant has been charged for James' Conner’s notes. This note was returned in the first inventory without any comment, but in the account of sales of 1805 (E,) there is a memorandum that the same was believed to have been paid to the testator. The note had been due 13 years before the testator’s death ■ — was barred by the statute of' limitations — and has been returned by the executor as uncollected. The residue of the exception is overruled because it is unsupported by proof.

The 11th exception depends upon the construction of that clause in the testator’s will which devises to his son the land called the Greenwood farm, with its appurtenances, including “ all stock ” on the same. In our opinion the word stock used in connection with farm or land has a settled meaning, whereby it is restricted to the animals which are used with, supported by, or reared upon it. No farmer or planter would think of passing the crop of the antecedent year made upon a tract of land and gathered, or his farming utensils, by a disposition of the plantation and the stock thereon. This exception is therefore overruled.

Of the 12th exception we find no proof.

The 13th exception is because the defendant hath been charged with interest without proof that the defendant used tjle fanc¡Si Intei’est, according to the usage of our Courts, follows debt as its ordinary attendant. Therein we depart from the English rule, and probably this deviation has resulted from the circumstance that in this country money never lies idle, and he who holds from another what is his, is presumed, until the contrary appears, to have laid it out in schemes of profit. In this case however, interest is to be charged necessarily, unless we make a gift to the executor of the interest which Accrued upon a fund producing interest. It has been calculated upon the notes and debts from the time they became due, and upon the sales from the expiration of the time of credit. There has been no interest account kept by the executor to show that less was in fact received. This exception is overruled.

The 14th exception is admitted to be well founded.

The 15th exception, we find supported by proof as to one small item. On examining the voucher as to P. Johnston’s note we find that the defendant has been credited with when he ought to have been credited with $21-¡V-0-. To the extent of this difference and the interest upon it the exception is allowed, and as to the residue is overruled.

The 16th has been withdrawn.

The 17th exception, so far as it can be considered as applying to the commissions which the defendant claims, is unfounded, for these have been allowed upon the whole amount of the estate whether consisting of principal or interest — which is equivalent to allowing him interest upon the commissions. As to payments properly so called, they have been credited as of the time when made, and interest calculated on large items from the very day, and with respect to expenditures consisting of a great number of small items, the commissioner hath ascertained the amount of each year, and allowed interest thereon from the middle of that-year. This exception is overruled.

The 18th exception, for that the commissioner hath not allowed a credit in the account A, for the value of a horse, carriage and harness, given by the will of Charles Conner to his son, is allowed. It ought to be credited in that account as though the legacy had been paid, so as to diminish the general balance thereof which is divisible between the son and the daughter. The defendant is to be credited therefor the sum of $275.

The 19th hath been withdrawn.

The 21st is, for that the commissioner hath not credited the said defendant with $440, part of the widow’s share allotted to her by the jury. We shall have occasion to consider the objections made by the plaintiff to the defendant having any credit because of the share allotted to the widow, and showing wherefore we overrule them. For the reasons then to be stated we allow this exception. Very clearly the jury have charged upon the executors this sum as well as the balance of $2,138-^, which they state as remaining due “ after the $440 shall have been paid.”

The first exception of the defendant Davidson to the account B, hath been already in the main overruled. It is of course to be sustained, so far as may be rendered necessary in consequence of the allowance of exceptions to the account A, affecting the balance to be carried into the account B.

The second, third, fourth, and fifth exceptions will be considered together. In January, 1811, the defendant Davidson delivered over to Robert Worke, notes and bonds belonging to the infant children of Charles Conner to the amount of $2,065-f¡ftr» and suffered Worke to have the management of their property for some years thereafter. At the en4 of the year 1815, in which year the guardianship ceased, Worke owed to the wards a sum far short of the amount placed in his hands. He died insolvent, and Davidson insists that he is not liable for this deficiency. It seems to us that he is liable. He was in truth the separate guardian of the plaintiff’s wife, and if he thought proper to place her money in the hands of Mr. Worke, or confide her estate to his management, he must be responsible for the insolvency or infidelity of his agent. But if he and Worke are to be considered joint-guardians, as they claimed to be, still the sum of $2,065fW passed from his hands into those of the other guardian, and it is a settled principle that where by the act or agreement of one trustee, money gets into the hands of his co-trustee, both are answerable for it. These are therefore overruled.

Where the son executor of an estate and guar-fegatees^it counts as executor and guar-dia"> 1,°. credit him in the first h¡ín inüie6 withna leuacy given ward!

The sixth and seventh exceptions, claiming credits beyond those allowed by the commissioner for the board, tuition and personal expenses of Miss Conner, must be overruled, for there is no evidence to support them. The exceptions are in a great degree founded on mistake arising from the cir-cusmtance that the credits are entered in the account according to the dates of the vouchers — and these show the expenses of antecedent years, for which no credit would appear to have been allowed. In the whole they amonnt to a large sum, and we cannot say that in truth the expenditures were greater.

The last exception to this account on the part of the defendant Davidson is, for that he is improperly charged for the legacy of a horse, bridle, and saddle, bequeathed to the testator’s daughter. Upon looking at , , . , , . ‘ , . , ° . the account A, it will be seen that the value of this legacy is substracted from the balance there stated. In other words, defendant ig charged as guardian but credited as executor for the amount, This is obviously correct.

set, and the 4th and 6th, 11th and 12th of his second set, or , . .... . additional exceptions, are provisional only, and designed to be insisted on only in the event that certain exceptions taken ky the defendants should prevail. As the latter have not been allowed, these are of course overruled, Of the plaintiff’s exceptions, the 1st and 3d of the first

The second exception brings to our notice a matter upon which the plaintiff is entitled to an inquiry. The interest on the funded debt was by the will to be applied to the education- of the testator’s children. Both were entitled to the benefit of this interest — although the principal was bequeathed to the son. It is nowhere noticed in the report or in the accounts. There ought to be a further inquiry as to the subject matter of this exception, ascertaining what amount was received and by whom, and how applied — and who, if any one, is chargeable to the plaintiff by reason of her share thereof.

The 4th exception, as well as the 2d, 3d and 5th of the additional exceptions, are intimately connected with an exception of the defendant, Conner, and will be taken notice of when that is considered.

The 5th exception is unfounded. The sum of $526, 67, .excepted to. is not a payment because of hires subsequent to the division. Notes to that amount, in the language of the voucher, were “ taken,” that is to say were delivered over in payment after the division, but they were for hires that accrued before.

The 1st and 13th of the additional exceptions object to the defendant being credited with any part of the share of the personal estate of the testator allotted to the widow. It seems to us that under the circumstances of tins case, and as between the parties in this suit, the executor is entitled to credit for all that was so allotted. The widow to whom the assignment was made by the jury was the mother of the plaintiff’s intestate, and of the defendant, Henry W. Conner, who were alone interested in lessening that allotment ;she was also one of the executors of the will, and for ought that appears to the contrary, she is yet living. /The assignment, if liable to formal or even substantial objections, was made upwards of thirty years ago under the authority of a Court of competent jurisdiction, and by a jury as directed by the act of assembly. This return gave the widow a sufficient prima facie warrant whereupon to exact payment, and at this day, when up to this moment there has been no complaint against the return and no complaint on her part that payment has been withheld, a payment is to be presumed. Indeed so far as we can collect from the vouchers laid before the commissioner, not only has payment in full been established, but it appears that she received from Davidson in addition thereto one third of what came to his hands on account of the Likely debt.

Moreover, in the bill the plaintiff states that the widow’s distributive share had been laid off in pursuance of her dissent, and had been paid to her by the defendant. It is not alleged that its amount was excessive, or the proceedings irregular — and there is an admission that it has'been paid. If after this lapse of time it is designed to impeach the validity of this assignment, Mrs. Harris ought to be made a party so that she may sustain'd, and if she cannot sustain it, so that she may be made liable in the first instance for what has been improperly received under it. These exceptions are overruled.

The 7th exception is overruled, because it is not shown that produce or money was used and expended in the making of a crop on the Greenwood farm in the year 1804. If this had been shown, it would then have been a material inquiry how the crop made thereon had been applied.

The 8th exception is clearly good in part. The amount of book debts is stated in the account A, at !$l,609-ia5B-0-, whereas it should have been $1,820-^. The error was occasioned by the commissioner taking as the whole amount of debts due the testator what is stated in the inventory as the net amount after deduction of debts owing by him. For such of these debts as have been discharged by the executors they have been credited in the administration account. The residue of this and the 9th exception are overruled as not being sufficiently supported. The lOtfi exception is so far supported as to render an inquiry in relation thereto proper. It appears by a receipt of Henry W. Conner to G. L. Davidson of the 8th Dec. 1814, that the latter, as his guardian, put into his hands a receipt of Peter Epps for a note of Dunn and Caldwell, of Petersburg, for $414. This probably was on account of the Likely debt. It does not appear what was received thereupon, or by whom. The subject matter of this exception is therefore recommitted to the commissioner for further inquiry and report.

Of the exceptions taken by the defendant', Henry W. Conner, the first, sixth and eleventh have been already disposed of.

The second is overruled, for the matter excepted to seems fully supported by the evidence.

The third, fourth and fifth exceptions, as well as the second, third and fifth of the plaintiff’s second series of exceptions, are necessarily connected together. The commissioner having ascertained by the result of the account B, that there was due unto the plaintiff, because of the estate of his intestate which had come into the hands of her guardians, the sum of $7,51 OtW, of which $3,773-^ was principal money and $3,736-^ interest thereon to the 1st June 1837, proceeded in the account D to ascertain how far this debt had been diminished by the guardians, through payments made to the defendant, Henry W. Conner. The result of the account D, was to lessen the balance of the principal debt as first found from $3,773~f¡j¡j- to $2,532i8o\, and that of interest from $3,736-fjjj- to $ 1 ,874-¡Y-„-, and therefore in the account E, between the plaintiff and the defendant Conner, the latter is debited with the difference between the two first and the two last amounts, or with $l,240-f¡ft- principal money and $l,862-f¡£- interest. If the account D be correct, and the reduction of the balance thereon stated, be the result simply of payments made to Mr. Conner, the debit in the account E excepted to is proper. But we think, upon the evidence to which the report refers, both these matters are, to say the least, doubtful. In the account D the guardians are credited, and of course in the account E, Henry W. Conner is, by reason thereof, charged with the amount of the judgment obtained against Worke’s executors. It is admitted on all hands that the estate of Worke is insolvent. Whether that judgment has been paid or not, and if so to whom, or if not paid, whether it is good for the amount, are material inquiries in determining whether Mr. Davidson can claim credit on account of it, and so charge his co-defendant. Again, there are credits in the account D for the whole amount of the two notes given by Davidson in June 1821 to Graham and Conner, when the evidence is that these notes were reduced by deducting therefrom a note or due-bill of Conner’s for $200, and interest, overlooked when these notes were given, and we understand this to be the same that is credited before in the account D in 1816, as “ cash (G. L. D.) $200.” Besides, though it be proper in discharge of Davidson to credit him with the whole amount paid upon the two notes given in 1821, yet Conner ought not to be charged with more than he received, and ought therefore to be credited in account with Graham for the amount which was paid the latter by Davidson. We direct therefore that the subject matter of these exceptions, that is, the ascertainment of the amount received by Henry W. Conner from Davidson or Worke, or either of them, or of the estate of Worke above the amount due to him from them, be recommitted to the commissioner for further inquiry and report.

The seventh exception is, for that the commissioner hath not allowed to this defendant, nor charged to the plaintiff, the value of the horse, carriage and harness bequeathed to this defendant by the testator. We have already disposed of this exception, so far as it seeks to charge the plaintiff in account with the executors with the amount of this legacy, in our judgment upon the 18th exception of the executor, Davidson. But this defendant is entitled to a credit for this legacy in his account C with the guardians; and therefore this is allowed as an exception to that account.

The eighth exception is overruled because not supported by proofs. The ninth exception is overruled also. The commissioner hath actually made the settlement between R. Worke and the defendant, the basis of the account of Worke’s guardianship. He hath not rejected a single credit therein stated, nor hath he added a debit thereto but upon clear proof. This renders it unnecessary to consider whether the exception, if founded in fact, would have been valid.

The tenth is a general exception, and from what now appears must necessarily be overruled.

The result upon the exceptions, therefore, is that the 14th, 18th and 21st of the defendant Davidson’s exceptions to the account A, are allowed in full, and that the 10th and 15th of his exceptions to said account, and his 1st exception to the account B, are allowed so far as is mentioned in this opinion, and overruled as to the residue, and that the other exceptions of said defendant are wholly overruled ; that the 7th of the defendant Conner’s exceptions is allowed to the account C ; that the 8th of the additional exceptions taken by the plaintiff is allowed so far as is mentioned in this opinion, and overruled as to the residue ; that the matters embraced within the 2d and ,4th of the plaintiff’s first set of exceptions, and within the 2d, 3d, 5th and 10th of his additional exceptions, and also those matters which are embraced within the 3d, 4th and 5th of the defendant Conner’s exceptions, are referred to the commissioner to make further en-quiry and report thereon, and all the other exceptions taken by the plaintiff and the last named defendant are overruled, and that the report is to be recommitted to the said commissioner, so that the accounts may be remodelled according to the judgment given on the exceptions, and according to his finding upon the matters whereof the further inquiry has been directed.

Per Curiam. Direct accordingly.