Thomas v. Visitors of Frederick County School , 9 G. & J. 115 ( 1837 )

Chambers, Judge,

delivered the opinion of the court.

The appeal is taken from the opinion of the court, overruling the exceptions filed by the appellant in the court below to the auditor’s report, and the duty of this court is therefore limited to the consideration and decision of the questions raised by those exceptions. The various other points argued by . the counsel for the appellants will not be discussed by the court.

The first exception is abandoned. The fact that commissions were allowed by the Orphans’ court is manifest on the face of the account, and of course the contrary could not be urged.

The second exception denies the obligation of the appellant to pay interest oh the balance of the estate, except only, to the extent she has received interest.

. The letters of administration were granted in February, 1826. The first account was passed in October, 1826, and left a balance in the hands of the administratrix of $743 58, consisting of cash received, except the small amount of specific articles, $27' 71. The second account was passed by the administratrix, on the 7th February, 1832, and charges her with the balance of the first account, the principal of the United States stock, and the dividends received by her on that stock since the first account,-and the balance of this 'second account, after deducting the disbursements, claimed commissions at six per cent, and the principal sum of the United States stock, is stated by the auditor to be $823 70. The principal of the stock the auditor has deducted from this account, because the certificate of the register of the treasury, which was admitted in evidence, stated, that the principal was in fact paid on the 7th April, 1834. The same certificate shows that the dividends charged in the second administration account, -were paid to the administratrix as early as May, 1829.

The appellant then standing in the attitude of an administratrix sued by a distributee, with assets subject to distribution, all received as early as May, 1829, except the amount of the United States stock, is charged with interest on the amount thus received, not from 1829, but from 7th February, 1832; when the last account was passed, and on the United States stock, not from the time when it might have been received by applying for it, not from the passing of the account in 1832, when it was charged as an item to be accounted for, as in the hands of the administratrix, but from the day it is admitted to have been received in point of fact, to wit: 7th April, 1834.

It is difficult to conceive any just principle, upon which a defendant can be excused from the payment of interest, upon the sum claimed by a distributee, as an admitted balance of personal estate in the hands of such defendant, and due to the plaintiff, in a legal course of distribution, as a general rule. In this case the sole question in contest has been, whether the appellee, the complainant below, was the party entitled as distributee. That there was a sum in the hands of the appellant, as administratrix, due to the person or persons rightfully claiming as distributee, is not, nor can it be denied, and it is equally certain, that she made no effort by any application to the Orphans’ court, or to the county court of Frederick, as a court of Chancery, pending this controversy, to deposite or dispose óf the amount, so as to prevent the further accumulation of interest upon it.

We think then, that the appellant was bound, as in ordinary cases, to pay interest on the amount subject to distribution, and we also think, the rules of interest adopted by the auditory are as lenient, as she had any claim to expect or require.

The objections contained in the, third exception, will be answered by what has been said in regard to the second.

The fourth exception erroneously assumes, that the decision of the Orphans’ court unappealed from, is not conclusive as to the per centum allowed to an executor or, administrator for commissions. The decisions of the court have settled that question. The claim which is urged to commissions on the interest accruing to the ■ distributee, on the surplus remaining after deducting commissions is utterly indefensible, and would be in effect to reduce the interest to less than six per cent, and put the difference into the pocket of the appellant, as a premium for delay in paying oyer the surplus.

The fifth exception, was ruled good by the court below, and the only question raised here in regard to it, is in respect to the costs consequent upon the particular -proceedings to which the items embraced by it have given rise. The appellant contends that the costs thus incurred ought to be allowed.

So far as we can learn, there has been a uniform practice as well in such a case as this, as in the analogous case of issues at law, part' of which have been found for plaintiff, and others for defendant. In all such cases the practice has been, to allow full costs to the party in whose favour the final judgment in the case has been given. We should hesitate to disturb this long settled practice, even if the costs were considerable, and the means of ascertaining them perfectly practicable, but as neither of these facts exist in the present case, we will only express our approbation of the general rule.

The sixth and last exception is hot so much a specific objection, as a general conclusion of law and fact adverse to the claim of the appellee, and as the view taken by this court accords with that taken by the county court, and which leads to the contrary conclusion, we concur with the opinion expressed by that court, in over-ruling this exception also, and affirm the decree.

Decree affirmed.