Fox administrator of Hockley against Wilcocks and others, 1 Binn. 194

Tilghman C. J. delivered the opinion of the court. It appears that S. M. Fox, the acting administrator of W. B. Hockley, settled his administration accounts with the register, which were transmitted, as usual, to the Orphan’s Court, by whom, with the consent of the said administrator and next of kin, the accounts were referred to auditors.

On appearance before the auditors, there was no dispute concerning any item charged in the administration accounts: but the next of kin ob-to the commissions allowed the administrator, and they claimed interest for sums of money, which they alleged had remained a considerable time in his hands.

The auditors w.ere of opinion that the commissions allowed the administrator were reasonable; and that the administrator should be charged with 150/. as a just and reasonable compensation for any use which he could or did make of the money remaining in his hands, during the course of his administration; and they declared at the same time, that it did not appear that the administrator was ever unprepared to pay any money legally demanded of him. The next of kin and the administrator were both dissatisfied with this report.

Both filed exceptions; and it was agreed that the report of the auditors should be confirmed by the Orphan’s Court without prejudice to either party, in order to afford a ground for an appeal to this court: on which appeal every objection was to be heard, that could, under the exceptions filed, have been made to the report of the auditors in the Orphan’s Court.

The next of kin excepted, that the administrator had large sums in his hands fora long time; that they called upon him to produce his bank book before the auditors, and to answer on oath, whether he had made use of any, and how much money of the deceased, and for what length of time; both which he refused to do: that in consequence of this, they .were entitled to interest on the sums which so lay in the hands of the administrator; but that the auditors refused to allow interest.

The administrator excepted, that the auditors charged him with 150/. interest, although they state, that it did not appear, that he was ever legally called on for money on account of the estate, which he was not ready to pay. What I consider as the principal point in this case, is, whether the administrator is liable to interest, for the sums of money, which from time to time remained in his hands, before the settlement of his accounts.

By the act of 1713,sec.4. it is enacted that “executors, ad-ministrators, and guardians,may,by leave and direction of the “ Orphan’s Court, put out their minor’s money to interest: but “ if no person can be found to take it, who will give good secu- “ rity, they shall only be responsible for the principal.” By the same law sec. 6. “they shall only be liable to pay interest on the “ surplusage of the estate remaining in their hands, when the “ accounts of their administration are, or ought to be, settled be- “ fore the Orphan’s Court or register.” It is therefore the duty of executors, administrators, and guardians, not to let money remain unemployed in their hands; and by fair implication frbm the words of this act of Assembly, if they do through negligence suffer it to remain unemployed, they are responsible for interest: much more so if they use the money for their oxun purposes.

As the law expressly declares that they are only liable to pay interest on the balance in their hands, when the administration accounts are or ought to be settled, it should seem that they are not liable to interest during twelve months from the death of the intestate, since that period is reckoned reasonable for the settlement of those accounts. To lay down rules, by which it may be ascertained in every case, whether administrators shall pay interest on balances in their hands, is impossible; because every case depends on its own circumstances.

But I think it may be established as a principle, that interest is payable, where the administrator has been guilty of neglect in not putting out money, or where he has made use of it himself, Both the act of Assembly and the principles of universal reason concur in this; and it is agreeable to the authorities cited from the law of England,, and the civil law. Still it remains to be decided by the facts in each case, whether the principle is applicable.

As to the auditors, no law has been shewn, which satisfies me, that they have power to call for the oath of the administrator as to the use he has made of the money, or to demand the production of his books. At the same time I cannot help remarking-, that the administrator should reflect -well before he declines the offer of his adversary, to appeal to his own books: because it lies on him, to shew what has been done with the money; and unless he does shew it, in a satisfactory manner, he leaves himself open to the conclusion, of having used it for his own purposes.

The Court having given their opinion on the point of láw submitted to them by the exceptions, it remains for the parties to determine, whether they will acquiesce in the report o£ auditors, (men certainly of excellent character and experience in business) or proceed to a further investigation of the accounts. Yeates J. and Smith J. were not present at the argument;, nor at the delivery of the court’s opinion. 1 St. Laws 98, Vide Cranberry's Executor v. Granberry, 1 Wash 246.