Crowder v. Shackelford 35 Miss. 321

Green Crowder et al. v. James R. Shackelford et al.

1. Executor and administrator: distribution: right op distributee to his share in all the assets. — A distributee, proceeding under the statute, Hutch. Dig. 665, § 91, to obtain distribution, after the lapse of twelve months from the grant of letters of administration, and before final settlement, is entitled to have-his share in all the assets in the administrator’s hands distributed to'him ; andi hence, in such a proceeding, if the petitioner objects to the accounts and in*322ventories of the administrator, on the ground that they do not show all the assets, the Court of Probates may, as on final settlement, investigate the accounts, and charge the administrator with assets not admitted by him.

2. Same : probate court : practice and pleading : distribution. — It is not necessary, to enable the Court of Probates to investigate the accounts of the administrator, on a proceeding for distribution, and to charge the administrator with assets not admitted by him, that there should be any formal charge of maladministration in the petition for distribution; but the court may, in ascertaining the amount subject to distribution, order an account, upon the same principles upon which a final account is taken.

3. Same: same: distribution: piñal settlement: commissions. — A decree for distribution, made under the statute, Hutch. Dig. 665, ?¿ 91, is, in effect, a final settlement of the estate, as between the petitioner and the administrator, so far as the assets then on hand are concerned; and it is proper and right for the court then, to allow the administrator commissions.

4. Same : power op probate to refer accounts to commissioners : distribution. — The Court of Probates is authorized by the statute, Hutch. Dig. 663, ¡5 87, to refer the accounts of administrators, executors, &c., to auditors, to restate the same, whenever exceptions have been filed thereto. This statute is merely directory, as to the mode of exercising in a particular case, the general jurisdiction of the court over administrators’ accounts; and the appointment of auditors to restate accounts, being thus within the jurisdiction of the court, the parties to a proceeding for distribution, may lawfully consent to their appointment, and a reference to them of the administrator’s accounts, with instructions to report the balance subject to distribution.

6. Same: probate court: practice: may refer accounts to commissioner without instructions. — The Court of Probates need not first settle the princi- ' pies, upon which auditors or commissioners appointed to restate the accounts of an administrator, shall proceed. The whole matter may be referred to them, with the power to examine parties and witnesses, but subject to the final revision of the court. (See Hutch. Dig. 663, § 87.)

6. Same: same: estoppel : commissioners appointed at instance of administrator. — If, at the instance of the administrator, and upon his suggestion that his accounts are incorrect, they be referred to a commissioner, or auditor,' appointed to restate them, he cannot afterwards object that the appointment was unauthorized by law, and that an examination of his accounts was then improper, and not warranted by the pleadings, or other circumstances of the case.

7. Same: realty: power, of administrator over it: heir may waive irregularities in the exercise of the power. — As a general rule, an administrator has no control or authority over the freehold estate of his.intestate; yet it is subject to the payment of debts, before the actual appropriation of it for that purpose; and the heir may waive his right in it, and a compliance with the conditions prescribed by law,'for the regular exercise of the power of the administrator over it, and may consent to his acts, appropriating it to the pay*323ment of the ancestor’s debts. See Lee v. Gardiner, 26 Miss. R. 521; Kem/pe y. Pintard, 32 lb. 324.

8. Same : same : when administrator liable to account for rent. — After an administrator has received the rents of real estate, and accounted for them in his annual accounts, to theProbate Court, as assets of the estate, he is.estopped to allege that he received them without authority; and he -will be accountable therefor, as for assets rightfully received; and especially will this be the case, where his accounts show that he has paid debts of the estate, to an amount equal to the rents received. See SatterwTiiie v. Littlefield, 13 S. & M. 302.

9. Same : administrator liable for simple interest, when. — An administrator or executor is liable for simple interest, on all sums illegally disbursed by him.

10. Same: liability of administrator for compound interest. — An administrator, or other trustee, is not permitted to speculate and to make a profit with the trust funds in his hands; and if he apply them to his own benefit, the cestui que trust is entitled to the profits. See Sehiefilin v. Steivart, 1 J. C. R. 620 ; Bingold v. Bingold, 1 Harr. & Gill. 11-80 ; Harland’s Accounts, 5 Rawle, 323.

11. Same : same. — Where the trustee uses the trust funds for his own benefit, and has made, or there is ground to infer that he'has made, a profit, the cestui que tnist may elect to take the profits, or the principal with compound interest. Seé 1 J. C. R. 620 ; 1 Harr. & Gill. 11-80.

12. Same : same : case in judgment. — The proof showed, that the administrator, from 1844 to 1855, had cash balances in his hands varying from $1300 to $12,000 ; that in 1849, he refused the application of one of the distributees for a settlement and distribution, and demanded of him money, to assist in carrying on a lawsuit for the estate, saying that he greatly needed money for that purpose; that in 1852, he drew two bills, for $250 each, to pay attorney’s fees, chargeable on the estate, and. had them accepted, which bills were payable four months after date', and bore interest, saying that he had no money ; that he complained frequently that he was much troubled to pay the expenses of the said lawsuit, and that he was hard pressed to get money to pay said expenses; that he paid other attorneys’ fees in small sums of $10, $20, and $40, stating, as a reason, that times were hard and money scarce; that since his appointment he had grown very rich, and had been all the time an active trader, and that he was an unsuccessful planter. Held, that the above facts warranted the conclusion; that he had used the money of the estate in speculating and trading, and that he was liable for compound interest.

13. Same: not entitled to counsel fees unnecessarily expended. — An administrator will not be allowed credit, for money paid to counsel, whose employment was entirely unnecessary, owing to a sufficient number having been previously engaged.

14. Probate court : presumption in favor of its decrees : -high court.— Where the evidence on which the Court of Probates acts, in rendering a decree, is not reported to this court, the decree will be presumed .correct. See Smith v. Hurd, 8 S. & M. 682.

*32415. Same: objections not made in, not noticed here: high court. — Objections, not raised in the Probate Court, on a point in relation to which' the facts are not fully stated in the record, will not be noticed in this court.

16. Same : practice : mat recommit report oe commissioner. — The Probate may, upon sustaining exceptions to a commissioner’s report, recommit it to the commissioner, with instructions to remodel it in accordance with the opinion of the court.

11. Same : presumption in payor op act op probate judge. — Where a voucher appears to have been probated before the Probate judge, at a time . outside of the regular terms of the court, this court will presume, unless the contrary appears, in ‘favor of the legality of the action of the judge, that a special term was in session at that time, and that the voucher was probated in open court.

18. Same: when informal allowance op annual account cured. — If the matters of an annual account, which appears not to have been formally allowed, but only to have been “ examined and fairly stated,” be carried into the subsequent accounts, which were regularly and formally allowed, the informality in the allowance of the first account will be cured.

19. Same : evidence : witness : case in judgment. — If a distributee introduce the administrator as a witness, and attempts, but fails, to establish by him, the invalidity of a voucher, the administrator may be then examined, in his own behalf, to sustain the validity of that voucher.

Appeal from the Court of Probates of Carroll county. Hon. W. W. Whitehead, judge.

In September, 1853, James R. Shackelford and wife and others, filed their petition in the court below, against Green Crowder, the administrator, and Mrs. Mary J. Stokes, the widow, and others, the remaining heirs and distributees of James B. Crowder, deceased, who died intestate and childless in 1841.

The petition states that J. B. Crowder left a considerable real and personal estate, and debts due him; that Green Crowder had been administrator since 1842, and that no distribution had been made. The petitioners tendered a refunding bond, and prayed that distribution might be made to them of their shares in the estate.

The administrator’s answer admits that he had sold the personal estate, except.the slaves, which were divided between the widow, Mary J. Stokes, and himself,- as administrator and acting for the other distributees.

That no other distribution has been made, because at an early *325day he was sued for about $15,000, by N. & J. Dick & Co., which suit has ever since been in litigation (about eleven years), and is yet pending, but he now hopes, for a speedy termination of it. That the estate has also been involved in other suits, both in law and equity. He sets out the names of the slaves born since his appointment as administrator, and sets up claim to Agga and her children, under a purchase alleged to have been made by him from the widow on the 6th January, 1844, which he says was for a fair and valuable consideration, and refers to a bill of sale therefor, as an exhibit, to her owner, but this exhibit is not in the record.

He admits he has assets, and states that he hopes to be able to bring his administration to a close in a short time, as the litigation which has followed him through his whole administration, and which has heretofore rendered distribution impracticable, or.at least imprudent, is nearly at an end. He states that none of the distributees have either asked for distribution, or tendered a refunding bond; and he expresses a willingness that distribution shall be made, as soon as he can have a fair settlement of the administration, and a just allowance for his services and expenditures.

In February, 1854, the administrator filed a supplemental answer, in which he stated, that when his original answer was filed, the suit of N. & J. Dick & Co. had been dismissed for want of prosecution, but that afterwards it had been reinstated, and was now on the docket for trial, and was undisposed of.

Mrs. Stokes answered, setting up that dower had been allotted to her in the land in 1842, and that in 1844, one-half of the slaves had been distributed to her as widow, under valid decrees of the court, and she pleads the same in bar of any further division of the property thereby acquired by her. She also states, that she has been in possession of the property distributed to her since January, 1844, and she relies on that, and the statutes of limitations, in bar of any claim for redistribution. She states that there are considerable assets in the hands of the administrator, arising from sales of personalty, and other sources, and in which she has not received distribution, and prays that Crowder be compelled to make distribution of the same to her. The original answers of Green Crowder and Mrs. Stokes, were filed at the December term, 1853.

In February, 1854, the petitioners filed an amended petition, in *326which they attack the division made in 1844, to the widow, upon the following grounds.'

1. No notice was given to them of said division, and they were not made parties to that proceeding.

2. Said division was not made by commissioners summoned by the sheriff, but by persons appointed by the Court of Probates.

3. The report of said commissioners so appointed, was not made under oath.

4. That it is also void for uncertainty, in not specifying or identifying the slaves set apart to the widow. And it was further alleged that the division was unequal, and unjust as to the heirs.

Green Crowder and Mrs. Stokes are requested to answer and .discover the names and description, ages and value, of each of the slaves set apart to the widow, and of each of those retained for the estate.

And the petitioners prayed, that the distribution be set aside, and for nought held, and for a now distribution ; and if this cannot be done, they then prayed that Green Crowder be held accountable for the difference in value in the two lots of slaves.

Green Crowder, in his answer, admitted all the grounds alleged in the petition for setting aside the distribution made to the widow, and that there was considerable inequality in the two lots, the widow’s being of the greater value : that is, that the six slaves given to the widow, in addition to her equal share which she has to set off those given by the intestate to Lucy Crowder, were much more valuable than the slaves so given to said Lucy. But he states he is not responsible therefor, as he acted under the orders of the court, and employed counsel, and resisted the whole proceeding.

Mrs. Stokes, in her answer, relies upon the distribution made to her in 1844, and her possession under it as a bar; denies the alleged inequality, and denies most of the grounds upon which it is attacked in the petition.

Mrs. Stokes and Green Crowder both set out a list of the slaves allotted to her, and also of those retained by the estate, and of their value at the time distribution was made, as fixed by the commissioners appointed to make distribution to her.

From this, it appears that Agga was set apart to the widow, valued at $300; and it also appears, that the aggregate value, as *327assessed by the commissioners, of the slaves allotted to the widow, exceeded the aggregate value of those given to Lucy Crowder, and those left for their heirs, by $600. Wherefore, the widow was required, on said division, to pay one-half thereof ($300) to the administrator, for the heirs.

At the December term, 1853, Green Crowder, the administrator, filed his petition in the court, stating that numerous errors had occurred in his accounts, and asking leave to correct them before distribution is made; and at the February term he filed an additional petition, in which he sets out the various errors, overcharges, &e., of which he complains, amounting in number to twenty or thirty items, which 'are not necessary to be specified, further than to state, that among them was no objection to the several amounts which he had reported as received for rent of lands.

At the February term, 1854, A. M. Nelson was appointed a commissioner, to ascertain and report to the March term, the exact amount remaining in the hands of Green Crowder for. distribution. At the succeeding March term, Nelson made his report, to which exceptions were filed by Crowder; but they do not appear to have been disposed of; and at that term (March, 1854) Nelson was also appointed a commissioner to ascertain the share of Mrs. Stokes in the assets (except slaves) on hand and subject to distribution; but under the appointment he made no report. At the same March term, the cause was submitted, and an interlocutory decree was made.

This decree recites, “that it appeared that the widow, M. J. Stokes, had received her distributive share in the slaves of said estate, amounting to one-half of the- same, whereby petitioners are entitled to receive one-sixth of the remainder, now in possession of said Green Crowder, administrator of said J. B. Crowder, and consisting of the following” (here follow the names of the slaves, including Agga, and her two children, George and Esther, born since the division with the widow).

It was, therefore, ordered, that three commissioners — named in the decree — set apart to the petitioners their share in the said slaves.

It was further “ ordered, by consent of parties, that said commissioners inquire into and report the value' of the hire of *328Agga and George and Esther, from 1st January, 1844, to the present time, allowing said Green Crowder a reasonable compensation for raising said George and Esther;” and, it appearing that the petitioners had given refunding bonds, the administrator was ordered to deliver to them their share, when set apart.

The decree further directed, that the administrator was responsible to.the heirs for the loss sustained by them, on the division made in 1844 with the widow, and a commissioner was appointed to ascertain such loss; and the commissioner was directed; in ascertaining the value of the respective lots of slaves, to value Agga ' with the lot left for the heirs.

The decree then proceeds as follows: “As to the money and choses in action belonging to said estate, the court not being informed as to the amount in the hands of said administrator, — the accounts of the administrator having been referred, at his own instance, to a commissioner, whose report has not been made and confirmed, — it is further ordered, that petitioners are entitled to 'one-sixth part of the money and choses in action accruing from the hire of negroes and rent of land, since dower was allotted in the same to the widow, and to one-twelfth part of the money and choses in action accruing from all other sources.”

Directions were also given as to what funds the debts should be charged on; but as there was no contest on this point, it is unnecessary to state them. A. M. Nelson was appointed a commissioner, to ascertain the amount due petitionersjby the administrator.

Finally, the decree recites: “ It is further ordered, by consent of petitioners and Green Crowder, that said parties shall have notice of the time and place of taking said account; and that all errors, either for or against said administrator, shall be inquired into and corrected before said commissioner, as fully as if a bill of review had been filed, subject to the revision of this court; and that all other questions be reserved until the coming of said report.”

At the same term, and after this decree was entered, Green Crowder filed a petition, asking the court to direct the commissioners therein appointed, to set apart to all the heirs their respective shares in the slaves; which was accordingly so ordered.

Afterwards, W. B. Helm was appointed a commissioner, in lieu *329of Nelson, to state the account between the parties; and after that appointment, James Somerville, by consent of parties, was appointed a co-commissioner with W. B. Helm.

Under these appointments, and without any further pleadings, the said commissioners, Helm and Somerville, examined witnesses, and restated the accounts of Crowder from the beginning; in some instances'"'making additional charges against him, and in others rejecting items of credit which had theretofore been allowed him. They made their report to the February term, A.D. 1855; to which Crowder and Mrs. Stokes both filed exceptions. Some of the exceptions of Crowder were sustained, and the commissioners were ordered to restate the account, in accordance with that action of the court.

Those portions of the report, as finally affirmed, to which objection was made in this court, are as follows: 1. The commissioners charged Crowder with simple interest on all disbursements made by him, which were adjudged illegal; 2. They charged him with compound interest, at eight per cent., making annual rests, on the cash balances in his hands, from time to time, as they appeared by his annual accounts; 3. They rejected the credits which had been allowed Crowder, for fees paid several attorneys for services in the Circuit Court; and also the fees of two others, for services in this court, in the case of N. & J. Dick & Co., against him as administrator of J. B. Crowder; allowing only the fees of the three counsel originally employed in the Circuit Court, and their fees, and the fee of one other, employed in this court; 4. They rejected the items of credit, for fees paid two attorneys in a suit he instituted against M. J. Stokes, in the Circuit Court, allowing only the fee of the original counsel employed therein ; 5. They charged him with the various amounts which he had reported in his annual accounts, as received by him for rent of* land.

The evidence taken before the commissioners, Helm and Somer-ville, was reduced to writing, and returned to the court, with their report, and is copied in the record. There were several bills of exceptions taken during the progress of the trial in the Circuit Court, on the final hearing, to the rulings of the court in relation to the exclusion or admission of evidence offered; but it is unnecessary to notice any of them, further than is stated in the opinion of the *330court. None of the evidence before the court, on the rendition of the interlocutory decree, at the March term, 1854, appears in the record.

The evidence in relation to the charge of compound interest is as follows: It was shown, that from 1835 to 1841, Crowder was a small planter, working from ten to fifteen hands, and owning from twenty to twenty-five slaves; that his annual crops, during that period, were from seventy-five to one hundred bales; that he was an unsuccessful farmer, generally buying his corn and meat, but that he^ succeeded very well in raising young negroes; that since 1841, he has made an “ immense estate,” now owns eighty or ninety slaves, and works forty or fifty hands, and has town property worth $25,000; and that Crowder has been extensively engaged’in trading in lands, apd that he was a successful and shrewd trader; and it was shown by Crowder, that he received a legacy of $3000,’since 1841, and that he purchased about twelve of the slaves acquired, since that time, by the sale of land owned by him.

It was also shown by petitioners, that during the whole period from 1841 to the present time, that there was no difficulty in loaning to good and solvent men, from $15,000 to $25,000, at eight per cent, interest; and in answer to this, Crowder showed, by two witnesses, that about 1850, he offered to loan them money at eight per cent., and they declined to take it.

Crowder’s annual account showed the cash balances in his hands as follows: in 1844, it was $1294; in 1845, $4514; in 1846, $6196; in 184T, $T010; in 1848, $7233; in 1849, $8727; in 1850, $10,803; and from that tim# to 1855, the cash balances ranged from $10,000 to $12,000.

It was proven by a witness who was a near neighbor of Crowder, and who frequently hired the negroes of the estate from him, that Crowder frequently, during the course'bf his administration, com- ” plained of having a difficulty in obtaining funds enough to carry on the Dick & Co. suit.

C. E. Penn proved that he was a brother and agent of Mrs. Stokes, and that in 1849 and 1850, Crowder told the widow that he wanted some money, to aid in paying the expenses of the Dick & Co. suit; that she ought to assist him, as he was at considerable *331expense, and greatly needed money to pay said expenses, and could not get along without it.

Crowder bad employed John J. Guión and A. Burwell to attend to the Dick & Co. suit in this court, and received credit, in his annual accounts, for two items of $250 each, paid these counsel; and it was proven by R. Coffman, that in November, 1852, he, as a member of the firm of McRae, Coffman & Co., of New Orleans, accepted Crowder’s bills in favor of each of these counsel, payable at four months, and for $250 each, with the interest added; and at the time Crowder applied to this witness to accept these bills, he stated to the witness, that Guión and Burwell “ wanted their fees, and that he did not have the money to pay them, and he wished therefore to draw bills to pay them, and meet them with his cotton.” This transaction took place in Grenada, near which place Crowder lived; and this witness further stated, that sight checks for the above amounts, on New Orleans, could at that time have easily been procured in Grenada. Crowder proved by A. Burwell, that he (Burwell) wrote to Crowder to send him a bill on New Orleans, for his fee, and that he was satisfied with the one sent by Crowder.

Richard Nelson testified, for petitioners, that Green Crowder employed him as attorney, to institute three suits for him, as administrator, against Mrs. Stokes, on notes held by him against her, and to attend to his (Crowder’s) final settlement in the Probate Court, at the sum of $150, for which he gave me his notes on time, — one for $100, and one for $50. Finding that six suits had to be instituted on these notes (owing to the death of Mrs. Stokes’s sureties), the agreement as to the amount of the fee was rescinded. Two receipts, for $150 each, had been given by witness to Crowder, on account of services rendered the estate, and they were allowed in his accounts. He does not recollect whether these receipts were .''intended to cover any services rendered by him to Crowder, other than for the estate. Witness always gave the receipts in the form Crowder desired. “ The last receipt, for $150, covers several previous payments made at different times, for services in the suits against Mrs. Stokes, I neither demanding, nor the peculiar circumstances of Crowder permitting, the payment of the whole fee at one time.” On being asked to explain what he meant by the phrase “the peculiar circumstances of Crowder not permitting the *332payment of the whole,” witness said, “ I knew he was hard pressed, having to pay the expenses of the N. and J. Dick suit.”

Upon a re-examination (made 3d March, 1855), this witness stated that the sum of $ 182.20 in the annual account of Crowder, of 1855, paid witness, and $150 in the account of 1851, and $150 in the account of 1854, and claimed as credits by Crowder, “were not paid on any specific claim, for specific services, but on general account, for legal services rendered to Crowder in the Dick & Co. suit, and the suits against Mrs. Stokes, and in the cases of Messrs. Stokes and Shackelford (the present suit) in the Probate Court — having been retained by Crowder in all his litigation in this county;” and that there was no other contract, as to fees, between him and Crowder, except that mentioned in his first examination: that he always gave the receipts, as to the case in which the payment was made, as Crowder requested; expecting, on final settlement, that the matter would be adjusted, and the proper amounts be charged to the estate, and Crowder individually. Witness is still the counsel of Crowder, and conducting this suit for him.

Thomas H. Clark stated, he is attorney for Crowder in this suit, and in the N. and J. Dick suit, and the suits against Mrs. Stokes. In making payments to me, Crowder, “would pay $10, $20, or $40, as he could spare it, he (C.) complaining that the times were hard, and money scarce.” Crowder owes witness' for fees in the Dick & Co. and M. J. Stokes suits, about $800, which have been due over a year. The reason witness has not demanded from Crowder the payment of this sum is, “ that I intended to call on him for the whole amount, when this litigation should be ended, and also, that I knew that Crowder’s expenses were heavy, and that he would have large amounts to pay, and he complained of hard times, which induced me to believe that it would not be convenient to pay it.”

Witness was first employed by Crowder in 1851, or 1852.

The substance of the evidence, in relation to the attorneys’ fees rejected in the Dick & Co. suit, is stated in the opinion of the court. In relation to fees rejected in the cases against Mrs. Stokes, in addition to what is hereinbefore set out in the abstract of the testimony of it. Nelson, it is necessary to state, that Crowder held three notes on Mrs. Stokes, amounting to about $5000, and payable to him as *333administrator, the consideration being purchases made by her at a sale of the perishable property belonging to the intestate. Suits were instituted on these, and judgments recovered. Mrs. Stokes enjoined the collection of the judgments until her share in the estate could be ascertained, and she sought to have said share credited on the same.

C. E. Penn proves, that before suits were instituted on these notes, he, as agent of Mrs. Stokes, proposed to Crowder to ascertain what would be due her in his hands as administrator, and to pay any balance that might remain, after the share of Mrs. S. was deducted; but this was declined by Crowder.

The proceedings in the court below, so far as they relate to the exceptions taken by Mrs. Stokes to them, are sufficiently stated in the opinion of the court.

The final decree, confirming the commissioners’ report as remo-delled, allowed Crowder commissions on the whole assets which came to his hands, both before and after the distribution to Mrs. Stokes, and one-half thereof was charged to her. The administrator was charged with three-fourths of the costs, to be paid by him out of his own funds, and one-fourth out of the assets in his hands.

From this decree both Green Crowder and Mrs. Stokes appealed.

F. Anderson, for Green Crowder.

I have endeavored above, to give a brief and condensed statement of the proceedings in the cause, and believe that the court, by referring to the various pages indicated, will save itself much trouble in examining the whole record.

1st. It will be seen that the accoufit reported by Somerville and Helm, on which the final decree was based, charges the administrator with simple and compound interest, on the various balances in his hands since 1842.

2d. It will be seen that the same account, charges the administrator with .the rent of all the lands of the estate, up to the allotment of dower in the same, in 1842, and of one-half of the land from that time.

3d. That, in the same report, various items of credit claimed by *334the administrator were excluded, to which I will hereafter ask attention.

4th. That the slave Agga, and her children, were distributed to the heirs, although she had been previously distributed to Mrs. Stokes, and that the administrator was held accountable for their hires, &c.

5th. That said account and report are made (if under any. authority whatever) under the authority of the decree made at the March term, 1854; for Somerville and Helm were only substituted instead of Nelson, appointed in that decree, to ascertain the distributive shares of petitioners.

6th. That the decree last alluded to declared no basis, and announced no principles upon which the account was to be taken, as against the administrator, except that it required the administrator to be charged with the rents of the land, as well as the hire of the negroes.

The last observation is important, because it might be said, that it is too late for the administrator to object to his being charged with rents, as he made no exception to the report on that ground. If he had made exception, on that ground, to the report, it could not have availed him, because the decree, under which the commissioners acted, required them to charge him with rent. The error is in the decree, to which he excepted, and not in the report. '

I insist that the whole proceedings were erroneous; that under the pleadings in the cause, and the attitude of the case, it was not competent for the court, either by itself, or through the instrmen-tality of commissioners, to enter into an investigation of the accounts of the administrator.

The proceeding being under’the 91st section of the Act of 1821, all the court could legally do was, “ to make á rule on the administrator to make distribution agreeably to law.” Hutch. Code, 665, §91.

The court could not, under this proceeding, settle the accounts of the administrator, and such settlement is not binding on any party.

The only mode in which his accounts can be definitely and conclusively settled, has been pointed out by law. If it be an annual settlement, the 87th section of the Act of 1821, ’if a final settle*335ment, the 12th section of the Act of 1846, provides the mode. Hutch. Code, p. 663, § 8T; lb. 682, § 12.

But even admitting the power of the court, under a proceeding for distribution, to investigate and settle the accounts of an administrator, on a proper case made by the pleadings, and to hold the administrator liable for assets, not admitted in his accounts, still it was erroneous, under the pleadings in this case, to enter into any such investigation. No charge was made of mal-administration. No allegation that he should account for any assets, either in the shape of principal or interest, not admitted in his accounts, — and it may be here remarked, that he had regularly returned his accounts once, and even twice a year, and no exception was ever made to them, so far as we can see, until the commissioners came to make out their report. And it was, therefore, clearly incompetent to enter upon an examination of those accounts under the proceedings in this cause.

In my opinion, the only mode by which innumerable difficulties may be avoided, under the Act of 1821, is to pursue its letter and its spirit. When a party applies for distribution, and tenders a refunding bond, if the administrator admits assets, as in this case, let a rule be made upon him to distribute. If he does not admit assets, it might be admitted that the inquiry could be made whether he had assets, but surely not to charge him with assets when no charge of assets, not admitted by him, is made.

This was not a final settlement, and is not binding, as such, on anybody. Parties have now a right to cite Crowder to a final settlement, and then this whole proceeding may be set aside, and certainly would be disregarded, in favor of any one interested, not’ having actual notice of the proceeding, and being a party to it.

The argument, made by the counsel for Mrs. Stokes, on this appeal, illustrates the correctness of my position. He objects to the sum of $4033, commissions allowed to the administrator, because, he says, that he is not entitled to it, until a final settlement, and sustains himself by reference to the statute, and the decisions of the court. What is the result? An administrator, without being charged with improper conduct, no objections ever having been made to his return, no refunding bond ever having been tendered, and no demand ever having been made upon him for distribution, is brought *336into court, forced, without any allegations against him, to submit to a censorious examination of the proceedings honestly and laboriously conducted by him, is compelled to part with every dollar of assets in his hands, and because he cannot make a final settlement, on account of a large suit like that of N. & J. Dick & Co. hanging over him, is forced to pay to the distributees the last farthing, and this is cut out of the commissions which the statute allows him, or, if he can, to recover them in an action at law against the distributees.

The plain construction of the statute- is, that the legislature never intended, on this summary proceeding, to do more than require the administrator to distribute such assets as his accounts showed against him, and to leave the parties to their remedy of forcing him to a final settlement for any ulterior rights.

I insist, in the next place, that the report of the commissioners, on which the decree was based, was a proceeding without the authority of law.

That account, as I have shown, was taken under the authority of the decree made at the March term, 1854. It will be seen that it was not a reference, as in a Court of Chancery, to state an account on certain principles, declared by the court, but that so far as the contest between the administrator and distributees was concerned, it was an absolute transfer of the whole jurisdiction, both as to law and to fact, with power to examine evidence (according to such rule, I suppose, as the commissioners might think the law presented), the only exception or limitation on their power being that, in their report, they were to embrace the difference between the value of the negroes allotted to Mrs. Stokes, and the remainder, and that Agga and her children should be valued in the remainder, and that they were required to charge the administrator with rents of land. Thus transferring, in fact, to the commissioners, the jurisdiction of the court on the most important questions involved in the controversy. Such a proceeding would be erroneous in a Court of Chancery, but the Probate Court has not even the powers of a Court of Chancery, in this respect.

Its powers are defined by statute, and the only cases in which it may appoint auditors or commissioners to act for it, are declared by statute. Hutch. Code, 663, sect. 87, Act of 1821; sect. 103; Act of 1821; Insolvency, 667; also B. 682, §§ 12-14.

*337The ease under consideration is not embraced in either of the acts alluded to; and as the court bad no power to authorize evidence to be taken by such commissioners or auditors, except in the above cases, or in cases provided for by law, all the evidence taken in this was extrajudicial, and not before the court when it decided the questions.

If it is urged, that though the court had no power to appoint the commissioners, yet that its judgment must stand as the judgment of the court, without reference to the report, I say in reply, that if the court had no power to act, then the court had no evidence before it, except the annual settlements of the administrator; and in that view, the final decree is most clearly erroneous.

It is true that the decree of the court may be correct, notwithstanding the appointment and report of the commissioners; but if the commissioners had no power, then the decree of the court must stand upon the evidence in the record, and not on their report, without which, there is no evidence but the annual settlements of the administrator.

If these reports, on the other hand, are to be taken as reports in the Chancery Court, and to stand until excepted to, and exceptions sustained, then the whole proceeding based upon the reports of Somerville and Helm, were erroneous; as Nelson had previously, under the appointment of the Court, made reports; and his reports, though excepted to, were never set aside.

If, again, the report is not to be taken, as in chancery cases, as valid until not excepted to, but simply as a means adopted by the court to inform itself, both as to law and fact, then a consequence, follows, on which I insist, and that is, that I am entitled to all objections, whether exceptions were taken or not; and that whatever will be a valid objection to the decree, will avail me now, notwithstanding it may not have been embraced in the exceptions to the report.

The objections which I make, then, are as follows:—

1st. The error in charging the administrator with rents of land.

2d. Charging him with simple and compound interest.

3d. The exclusion or rejection of certain credits, particularly fees paid to lawyers.

4th. The distribution of Agga and her children to the heirs,— *338she having been distributed to Mrs. Stokes, and that distribution not being set aside.

5th. The charging the administrator with the hires of Agga and her children, and with $300, which he gave Mrs. Stokes for her title, and with which he is charged in his accounts; he in fact having charged himself with that amount, as paid by Mrs. Stokes to him, on the difference in value of the slaves received by him, and the slaves reserved for the heirs.

I will briefly discuss these points, in their order.

1st. It was clearly erroneous to charge him with rents; and I have shown that this was an error in the March term, 1854, and that an exception to the report was not necessary. The error pervades the whole account, from 1842 to 1855. Oarmichael v. Browder, 3 How. 257; Davis v. Roberts, 1 Sm. & M. Chan. Rep. 543; North on Probates, 178; Qole v. Leahe, 5 Cush. 770; 3 Cush. 252; Jones v. Goon, 5 S. & M. 767.

2d. The charging of simple and compound interest, amounting to $10,355.15.

This was made an exception to the reports, and would be available against the decree, if it had not been made the ground of exception.

The general proposition is, of course, not disputed, that an administrator may be charged with interest, when he converts the money to his own use, and employs it in his own business. And the attempt is made, by the evidence taken before the commissioners, to show that Crowder did so; but I think I may say that there was an utter failure to make the proof. The chief ground relied on is, that Crowder had made a large estate; but, without reviewing the proof, it is established, that in 1834, eight years before the death of James B. Crowder, he had been the purchaser of a considerable property, both in lands and slaves; that he had a large amount of land, a great deal of which he had traded for negroes; that his property has greatly risen in value; that he received a legacy of $4000; and that he was a remarkably shrewd trader, and an economical man. By these means his estate increased, from 1835 to 1854, — nineteen years, — from a plantation and some fifteen hands, to a plantation and some forty or fifty hands; certainly no wonderful result, without attributing to him the money of the estate.

*339Again: it is said on the evidence of Coffman, that in 1852 or 1853 he had no money, because he gave a draft to Guión and Bur-well, in the N. & J. Dick case; but Pool and Burwell will both prove, that he gave the draft because Burwell preferred it, and because it was convenient, not for the want of money.

It is also contended, that in 1853, from the depositions of Nelson and Clark, Crowder did not have money, and, therefore, must have used the money of the estate. But these depositions both show, that neither of them ever urged Crowder for any amount of money, without getting it; and besides, they only establish that, as Crowder had been at great expense in the Dick suit, they did not wish to force him, but not that he did not have any amount of money at command. This is the substance of the proof to show that he had converted the trust fund.

On the contrary, the record is full of proof that Crowder was an economical, shrewd, calculating, and a trading man, who started with a large capital in 1834, and has had several large accessions to his- capital since then; that he had always money, when called on; that he rendered, with exemplary punctuality, his accounts once or twice a year ; that he was never called upon to distribute, because the heirs knew it was to their interest not to have the estate distributed, until the settlement of the Dick suit..

Now, what is the principle upon w'hich an administrator is charged with interest.

This court has said, more than once, that if he convert the funds, or if he delay accounting, or if, after twelve months, without some reasonable excuse, he retain money without putting it out at interest, or without distributing it, he ought to pay interest, but' in no case compound interest, as in this case. Keith v. Vaden, 4 Cushman, 131; Cole v. Leake, 5 Cushman, 767; Satterwhite v. Satterfield, 13 S. & M. 302; Kerr v. Laird, 5 Cushman, 544 ; Sanders v. Plainer, 1 Cushman, 573; see also the case in 10 Yer-ger’s Rep. 163.

In none of the cases referred to has the administrator been held accountable for interest, except in cases of negligence and unnecessary delay in accounting, and then only for simple interest.

The ground on which interest is allowed, is the “ conversion of the fund,” or “negligence in keeping it for a long time without *340causeand in the latter case, not because it is his duty to “ make it profitable,” but because it is his duty to distribute. 2 Will, on Executors, 1131,1132, part 4, B. 2, ch. 2, § 2; 1 John Chan. Rep. 620 ; North on Probates, 167; Satterfield v. Littlefield, 13 Sm. & M. 302.

3d. The refusal to allow the following items of credit:—

Fifty dollars paid to Nelson, fee for resisting the widow’s application for dower in slaves,.$50.00

Amount paid Caldwell in 1848, or ’49,. 50.00

Amount of Caldwell’s fee in Dick & Hill case,. 300.00

Amount of Guión and Baine’s fee,. 250.00

Amount of J. E. Sharkey’s fee,. 250.00

Amount paid Nelson for professional services, in 1851, . . . 150.00

Amount of Burwell’s fee, in Dick & Hill case, ..... 252.25

Amount of Guion’s fee, in same case, ....... 250.00

Amount of J. S. Johnson’s fee, in the case of Crowder v. M. J Stokes, 50.00

Amount paid Col. Nelson on account, 1854,. 150.00

Caldwell, in Dick & Hill case,.100.00

Amount claimed for Agga,. 300.00

Of the above items, I think it will be seen that every one of them .should have been allowed. Some $1400, in the Dick & Hill case, had been disallowed, on the ground that Acee, and Shepherd, and Cothran, had been employed in that case; but Sheppard was employed by Mr. Stokes, and was not the counsel of Crowder. Suppose $1000 was paid to Acee, Cothran, and Baine; then the above $1400 would make $2400 paid for a case involving $9000, with interest at 10 per cent, since 1842, and litigated in the courts for twelve years, there being a verdict, at one time, for .$1600, or thereabouts, not an unreasonable' amount. The same may be said of the other lawyers’ fees; they were excluded without any sufficient reason.

4th and 5th. The last ground of error to which I shall ask the attention of the court, is the action of the court below as to Agga, and her children, George and Esther. Agga was allotted to Mrs. Stokes (see her answer to amended petition); but yet, in the decree of March, 1854, the foundation of all subsequent proceedings, she was placed among the slaves to be distributed to the heirs, without any pretence whatever, and that although the admi*341nistrator had charged himself with $300, the amount which Mrs. Stokes owed the heirs, and in consideration therefor received from her Agga.

He was also held accountable for the hire of Agga, all of which was erroneous.

But it may be asserted that the administrator purchased Agga with the funds of the estate, and therefore the heirs are entitled to Agga, and her hires. ' To this I answer, 1st, it is not true — there is no proof of it; 2d, if true, the heirs elected to hold Crowder liable for interest, for dealing, as they charge, in the trust funds, and under those circumstances they cannot also demand the profits. The rulé is, that they “ must elect to take either the profits for the whole period, or the interest for the whole period.” North on Prob. 167; 2 Will, on Executors, 1134.

J. S. Johnson, on same side.

JE. L. Acee, for Mrs. Stokes.

1. The Probate Court can allow commissions only on final settlement. Merrell v. Moore, 7 How. 271; ShurtlifF v. Witherspoon, 1 S. & M. 613.

2. Mrs. Stokes ought only to have been charged one-half of the commissions accruing on the assets received, up to the division made in 1844 ; she had no interest in the assets received since then, and ought not to pay commissions on them.

8. The court should not have allowed the exceptions to Crowder, to any of the attorney’s fees rejected by the commissioners. The proof showed clearly that they were unnecessary.

4. The exceptions of Mrs. Stokes to the allowances of the credit in the account of 1842, for the amount paid Brown, should have been sustained. 1st. Because it appears that the vouchers, on which the credit was allowed, were probated on the 22d July, and not during a term of the court, which is on the first Monday of each month. And 2d. The annual account itself was not allowed: it is indorsed simply, “Examined and fairly and stated,” and this is insufficient. Keen v. Keen, 25 Miss. Rep. 513.

J. Z. Q-eorge, for appellees, Shackelford et al.

*342I. It is now insisted, that the proceedings in the court below, could not legally have taken place under the pleadings. And 1st. It is said that in a proceeding for distribution, that the only order or decree the court can render, is to grant a rule on the administrator to make distribution according to law, and that it is not competent then to inquire into the administrator’s accounts, and ascertain what is really due and subject to distribution. 2d. If this could be done, then it is said, that there is no allegation in the petition authorizing these proceedings. And 3d. That the appointment of the commissioners was unauthorized.

1. The statute says, that the court shall grant a rule on the administrator to make distribution according to law. This'does not leave it to the discretion of the administrator to distribute, what he pleases to regard as assets of the estate; if. so, the remedy given by it would be most lame and ineffectual. There is no other statute authorizing a proceeding for distribution, and if this does not authorize the heir or distributee to get what belongs to him in the estate, then there is no remedy, but he must accept what the administrator pleases to give. The statute then must mean, that the court shall ascertain what specific property, or slaves, or what assets there are in the administrator’s hands subject to distribution. This is most clearly so, with reference to slaves, for in that case commissioners are appointed to divide or distribute them, and the administrator is charged with no duty respecting them, but to deliver them when divided to the proper parties. This same statute applies as well to distribution of slaves, as money, and if in the one case, it be clear that the court must first ascertain the fund or property to distribute? it may do so in the other; and if it can ascertain the fund subject to distribution, it certainly is not confined to the admissions of the administrator in his accounts, but may take appropriate steps to ascertain whether his account be correct or not; and this is the established practice. See Jones v. Coon, 5 S. & M. 751; Standley § Karlin v. Langley, 3 Cushm. 252; Cole v. Leals, 31 Miss. Rep. 131.

2. The second objection urged on this branch of the case is, that if it were competent on a proceeding for distribution, to inquire into the accounts of the administrator and hold him liable for assets not admitted by him, that then the pleadings did not authorize this to be done in this cause, inasmuch as there was no suggestion or allega*343tion in the petition, that the administrator’s accounts did not show the true balance in his hands. To this I answer, 1st. That Crowder himself admitted his accounts to be incorrect, and filed a petition asking to have them corrected. And 2d. That the parties waived the necessity of pleadings, by their agreement contained in the interlocutory decree, that the commissioners should inquire into all errors in the accounts, both for and against the administrator, and correct them.

3. The statute expressly authorizes the Court of Probates, to refer administrator's’ accounts, when excepted to, to auditors, who are required to examine and restate the accounts so referred (Hutch. Dig. p.- 663, Art. 87), and this practice has been sanctioned by this court. See Smith v. Surd, 8 S. & M. 682 ; Sattenvhite v. Little-field, 13 S. & M. 306; Bennoit v. Brill, 2 Cushm. 85. But it is said that this is not the case specified in the statute, in which auditors or commissioners are to be appointed. This is true, but I have proven by the statute, that it is within the power and jurisdiction of the court to make the appointment, and if so, the appointment is not void; and whether the state of facts exist or not, in which the statute contemplates the appointment of auditors, is immaterial, since it was competent for the parties to waive their existence; and this they have expressly done in the interlocutory decree. It is true, that the parties could not confer a power on the court, which the law does not permit it to exercise under any circumstance; but they certainly could consent that-the court might exercise a known statutory power, under circumstances not mentioned in the statute;— they could waive the existence of the facts which would authorize the court to exercise the power without their consent.

But it is insisted that the court gave no instructions to the commissioners, as to the principles on which they should state the account; and that it referred its whole jurisdiction over the matter to them, and that this was an unconstitutional transfer of the powers of the court, to an illegal body. To this I answer: 1st. The statute authorizing their appointment does not require that instructions shall be given to them (Hutch. Dig. Ib.); and if it were required, the subsequent ratification of the report by the court, would remove this objection. But it is further said, that the appointment of the commissioners being void, their report of the *344evidence taken before them is void; and that it follows, that there was no evidence before the court but the annual accounts of the administrator, and that the decree is thus shown to be erroneous. To this I answer, that I admit that the evidence taken before the commissioners is not legally before this court, for want of proper authentication; but it does not follow that it may not have been properly before the court below. For, however illegal it may have been as to the persons who took it, still it might have been introduced to, and considered by the court, unless objected to there. Neely v. Planters’ Bank, 4 S. & M. 113 ; Sessions v. Reynolds, 7 lb. 730; Doe v. Natchez Insurance Company, 8 lb. 197. And, moreover, the bills of exceptions taken, show that evidence was before'the court on the final trial; and wherever the action of the court is based on evidence, and that evidence is not reported to this court, the judgment will be presumed correct, and affirmed. Smith v. Hurd, 8 S. & M. 682. It is again said, in opposition to the power of the court to appoint the commissioners, that it could not legally do so, until the report made by Nelson, at the March term, 1858, had been disposed of; but this objection is expressly held untenable by Satterwhite v. Littlefield, before cited.

II. It is next insisted, that the court had no jurisdiction to charge Crowder for rent of land received by him. To this it is answered, that, in the first place, it nowhere appears that this land was freehold, — it may have been leasehold property; and, in that event, it was assets, and the administrator was chargeable; and if necessary to uphold the decree, it will be presumed leasehold, as every presumption must be indulged to support the decree.

But if the land be regarded as freehold, still, under the circumstances of this case, the charge for rent was proper. The administrator had voluntarily returned the rents as charges in his annual accounts, and the commissioners, following the interlocutory decree, merely transferred to the account stated by them, the items in Crowder’s own accounts; he made no objection to the charge, neither in his petition filed before the interlocutory decree, in which he undertook to specify all the erroneous charges against him, nor after the commissioners made their report. It was never suggested anywhere in the court below, that he was unwilling to be bound by these charges, thus voluntarily made. After receiving the rents *345for over ten years, and professing to account for them in his trustee capacity, it would be monstrous now, after the claim against him in every other capacity is barred by the Statute of Limitations, to permit him to raise the objection now insisted on.

Again, the rents belonged to the distributees, and they had the right to advance them, or any other money belonging to them, for the payment of debts, so as to protect the specific property. Here they permit the administrator to collect and receive the rent, he charges the amount so received on the debtor side of his account, and on the other side he claims credit for debts paid, to an amount exceeding ten times the rent: this is an application of the rents to the payment of debts, with the consent of the heirs; it is nothing more in substance than an advance by them for the payment of debts, and surely in such a case the administrator as against them, would not be entitled to credit for payments made with their own money. By crediting him with the debts paid, and charging him with the amount advanced, the same result is arrived at, as if both items were stricken out.

Again, he was allowed over $4000 for commissions. This is a much larger amount than the rents, and is a debt due by the heirs; it was certainly competent for them to set off their claim for rent, against his claims for commissions.

There is another conclusive answer to this objection to the jurisdiction of the court to charge him with the rents: the Court of Probates has jurisdiction to condemn land for the payment of debts, in two cases. 1st. Where there is an insufficiency of personalty; and 2d. Where it is to the interest of the heirs to so apply it in preference to slaves. It is then a matter, under certain circumstances, within the jurisdiction of the court. Now, it is well settled that if the court, in the exercise of this jurisdiction, fail to observe the law, as to notice to the heirs, &c., that the judgment of condemnation is void, and the sale is also void; yet it is equally well settled (Lee v. Gardner, 26 Miss. R. 521) that the heir may waive this irregularity, and may confirm this void act. He may thus waive the existence of the legal state of facts which gives the court jurisdiction; if he may do so as to the land itself, it seems clear that he can do so as to the rents: for a void attempt to do a thing, can have no more efficacy than if no such attempt had been *346made. Here the heirs waive the want of power in the administrator to apply the realty, i. e., its rents, to the payment of debts; they affirm his unauthorized acts, and the administrator is bound under the authority of Lee v. Gardner, supra.

Again, the administrator may voluntarily charge himself with assets, not within the jurisdiction of the court, and over which the grant of letters to him gave him no control. The grant of letters here gives the administrator no power over assets in another State, because such assets are not within the jurisdiction of the court; yet if the administrator voluntarily bring such assets within the State, and charge himself therewith in his accounts, he is responsible. Satterwhite v. Littlefield, 13 S. & M. 304, 305. And the same rule has been applied to a guardian. Stevens v. Martin, 30 Miss. R. 160. The analogy between these cases and the point now under consideration is complete.

III. As to Agga and her children: the evidence before the court when the interlocutory decree of March, 1854, was rendered, is not reported to this court; it does not appear by the record that Agga was set apart to the widow, — the report of the commissioners to make’the division failing to specify the negroes; it was hence a matter depending on proof, to determine to whom she was allotted, and the evidence not being reported, the presumption is that the decree is correct. Smith v. Surd, 8 S. & M. supra. Moreover, there is a distinct recognition, by Crowder, of the heirs’ title to her in the decree, when he consents that the commissioners shall value her hire.

If the court considers that the answers of Green Crowder and Mrs. Stokes contain all the evidence that was before the court, at the March term, A.D. 1854, when Agga and her children were ordered to be distributed, even then the decree must be sustained. For, 1st, the decision was void, because not made by the sheriff and five freeholders; 2d, it was void, for uncertainty in not specifying the names of the negroes; and 3d, it was void, as to Agga, because she was valued at $300, and assigned to Mrs. Stokes, whereby she received slaves exceeding in value the slaves of the heirs by $600, and was consequently to pay them one-half that amount, that is, $300, which was the exact value of Agga.

If Agga had been assigned to the heirs, the two lots of slaves *347would have been exactly equal. It is hence manifest, that, under the color of a division of the slaves, the commissioners, after having given to the widow one-half of the value of the slaves, sold Agga to her for $300. The administrator retained Agga, and credited Mrs. Stokes with the $300, thus making the division equal; this was but rectifying the error of the commissioners. And although Crowder and the widow attempted to make this exchange for the benefit of Crowder, by a sale of Agga to him, yet, inasmuch as she got no title, she could convey none to Crowder; the title remained in the administrator for the heirs, and inasmuch as the possession remained with the administrator, he would be considered as holding her, in his character as administrator, in which he had title to her, and not in his character as purchaser from Mrs. Crowder, in w'hich he had no title.

But it is insisted that the court confirmed the distribution so made to the widow — we have not appealed therefrom, and hence Agga must be regarded as having been regularly distributed to her. No such decree was ever rendered. This question was disposed of in the interlocutory decree of March, 1854, by which Mrs. Stokes was permitted to retain those in her possession, and Green Crowder was directed to distribute the slaves, including Agga, in his possession. That decree then only confirmed the distribution, which had been illegally made to Mrs. Stokes, to the extent of allowing her to retain possession of those slaves she then held, and disaffirmed it, so far as Agga was concerned. Allowing her to retain, under a void act of distribution, slaves of equal value to those remaining in possession of the administrator, and disaffirming the distribution, so far as it relates to a slave illegally set apart to her, but still remaining with the administrator, cannot certainly be held to conclude us, so as to bind us by a void act, any further than it was thus affirmed.

But it is said by Mr. Anderson, that whilst Agga and her 'children are directed to be distributed to the heirs, Green CroAvder is charged with her value, $300, being the amount returned by him as received from Mrs. Stokes, for the excess in value of her share of the slaves. This is a mistake. It is true that Crowder did charge himself with the $300, but he is expressly exempted from the charge in the final account.

*348And, further, no objection was made to this action of the commissioners, and to their charging Crowder with her hires, in the court below.

IY. As to the lawyers’ fees rejected.

The proof shows clearly that the services of the lawyers whose fees were rejected, were unnecessary, and that their employment was reckless, if not fraudulent. It further appears, from the testimony of Clark and Nelson, that their retainer in the N. & J. Dick suit, and in the suits against Mrs. Stokes, were merely colorable, for the purpose of getting their services in the Probate Court, about his private business, and in the defence of this suit, so as to charge their fees on the estate, and not on his own purse. He employed Nelson at $150, to attend to his private business, and the Dick & Stokes suits. He reserved- the trade, pays him, thus far, $482, and charges every dollar to the estate.

Y. As to the interest charged.

That the administrator is liable for simple interest, on illegal disbursements, is well settled. Jones v. Ward, 10 Yerg. 163; cited and approved in Smith v. Hurd, 8 S. & M. 682.

It is equally clear that he is liable for compound interest, on the cash balances in his hands, under the circumstances of this case.

A trustee is not permitted to make a profit out of the trust estate committed to his charge. He cannot use the trust funds for his own use, and thus put it at hazard, and if he do, he is liable for compound interest. See Schebberlin v. Stewart, where the whole doctrine is learnedly and elaborately discussed by Chancellor Kent, and all the English authorities cited and examined; 1 John’s C. R. 620; see also Peacock v. Redding, 5 Yes. J. 58; 2 Kent’s Com. 229, 230, and 231, note E ; G-ully v. Dunlap, 2 Cushm. 411-12; 1 McCord Ch. R. 399; 4 Hen. & Munf. 416.

And the cestui que trust may elect to take the profits or compound interest. Gully v. Dunlap, before cited. These authorities conclusively settle that we are entitled to compound interest, if Crowder used the money. If evidence when on the record be not properly before the court, their charge will be presumed to be correct. 1 J. C. R. 620. If that be examined, it conclusively establishes our position.

He, Crowder, was appointed administrator in 1841. He was a *349small planter from 1835 to that time, working from ten to fifteen hands; and since his appointment as administrator of J. B. C. he has made an immense estate. (Gr. Williamson’s testimony.) He has eighty-five or ninety negroes. He is a poor farmer. (Ib.) That he has got rich is certain. Did he use the money of the estate ? He was an extensive trader. (See Williamson’s, Brown’s, and Brister’s depositions.) That he had opportunity to use the money. (See Ayes’s, Sanders’s, Hart’s, and McCracken’s depositions.)

That he did use it, is clear. In addition to the above, it is shown, by his annual account, that he had large cash balances in his hands, as administrator, from 1844 to 1855. In 1844, the cash balance was $1294; in 1845, $4514; in 1846, $6196; in 184T, $7010; in 1848, $7233; in 1849, $8827; in 1850, $10,808; in December, 1850, $10,334; and from that time to 1855, it ranged between $10,000 and $12,000. These balances remained in cash, after the payment of all the expenses and disbursements that he claimed, including the expenses in the N. & J. Dick suit.

But in 1849, we find him refusing to settle with Mrs. Stokes, and demanding money from her, on the ground that he was scarce of funds, and needed it to help pay the expenses of the N. & J. Dick suit. (See C. B. Penn’s deposition.) In November, 1852, he pays lawyers’ fees, chargeable on the estate, with accepted bills on New Orleans, payable at four months, with interest, and gives as a reason for so doing, that he has no money. (See Rulf Coff-man’s deposition.) In 1852 and 1853, he was hard pressed for money to pay the debts of the estate, and had to give his two notes, one for $100, and one for $50, due several months after date, to pay lawyers’ fees. These fees to Colonel Nelson were paid in small sums, and not all at the same time, his “peculiar circumstances not permitting the payment of the whole.” (See R. Nelson’s deposition.) He also paid the fees due Clark in small sums,— $10, $20, and $40, — complaining all the time “ that the times were hard, and money scarce.” (See Clark’s deposition.) His annual accounts show that Messrs. Acee, Cothran and Caldwell were also paid in the same way, by small sums at one time. These facts are entirely inconsistent with the hypothesis that he had the money *350on hand. But, if he did have the money, and always kept it, it was in his power to have proven the fact. If he deposited it with any banker, he could have proven it by him ; but this was an effectual mode of removing all doubt on this subject. If he had the money really in hand, it could easily have been produced, and it was his duty to have done so. 3 J. J. Marsh. 68 ; 7 Dana, 201. It being peculiarly within his power to have proven the fact, if it really existed, the presumption of law is that it did not exist.

It is attempted now to explain his payment to Burwell and Guión in bills on time, with interest, upon the ground that he was merely complying with the request of Burwell, contained in his letter to him ; but this will not do for Guion’s payment, and it is a different reason from the one given to Coffman. Besides, Burwell did not write for a time bill, and a sight bill might easily have been procured at Grenada.

Again: there was no reasonable excuse for his failure to make distribution, and he is, for that cause, liable to pay interest. The history of N. & J. Dick’s case is given in one of his answers, but it is not sustained by proof. Besides, the fact of litigation, without showing how it would probably terminate, is no excuse for not making distribution. See Keith Vaiden v. Jolly, 5 Cush. 131.

Finally, the record presents a clear case of relief for the heirs, on all the points in dispute. The administrator was appointed in 1842. He has had the estate in his hands for sixteen long years, without paying the heirs one dollar. He has refused to settle with and pay them, without legal compulsion, upon the pretext, that the estate was needed to pay the expenses of the Dick law suit. When he is sued, he throws every obstacle in the way of distribution, resorts to technical quibbles to defeat the just claims of the heirs, appeals to this court, and thus hopes to weary them into a compliance with his unjust demands.