Kenan v. Hall

By the Court. Warner, J. delivering the opinion. [1.] Two grounds of error are assigned to tho judgment of tho Court below. 1st. That the Court erred in deciding that the executors were not entitled to commissions. 2d. That the Court erred in deciding, that after the expiration of six yeai's, the interest should be compounded — that is, the interest should be added to the principal debt, and interest be calculated on the whole amount. In Fall vs. Simmons et al. (6 Georgia Rep. 265,) this Court held, that an executor or admixiistrator, who fails to make axmual returns, according to law, foi'feits all commissions for his trouble in managing the estate. The Act of 1792 expressly declares, that if any executor or administrator shall neglect to render anxiual accounts, he shall not be entitled to any commissions for his trouble in tho management of the estate. Prince, 226. But it is said this Act only applies to Courts of Ordinary, axid does not apply to Courts of Equity, when the executor is required to account in the latter Court. The Act is a general one, and its policy is as applicable to the one Court as the other. The Act of 1810 makes it the duty of all gxxardiaxxs, executors and administrators to render a full and correct account of tho estate, as well as the condition of the estate, once in each and every yoai’, to the Couxl of Ordinary, as well as a statement of the transactions of such estate, on oath. Prince, 240. Failing to comply with the rcquirexnents of the law, the executors must abide the penalty prescribed by the law, for their neglect. In 1836, Kenan and Carter wore qualified as executors. In 1838, they made a joint return, which shows a largo amount [420] of assets in their hands, belonging to the estate of their testator. No return was made by either of the executors until 1846, when Carter made a return. In 1847, Carter made another return, and in 1848, after the commencement of a suit against them by the legatees for an account, Carter made two returns. No return was made by Kenan until 1848, after the commencement of the suit. From 1838 to 1846, a period of eight years, no return was made to the Court of Ordinary by either executor, of the condition of this large estate in their hands. When called on to account, Carter, one of the executors, denied that he owed complainants anything, but insisted that the estate was indebted to him. There was found to be a balance due, however, from Carter to the complainants, including interest up to January, 1850, the sum of $7,297 25; and there was found to be a balance due from Kenan, including interest up to the same time, the sum of $22,146 68. The defendants were charged with simple interest on the respective amounts, found to be in their hands, for six years, and then, the principal sum and the interest were added together, and interest computed on the whole amount. In the case of Fall vs. Simmons, (before cited) this Court held, that an administrator who had been guilty of gross neglect, in not making returns of the condition of the estate in hi's hands, was liable to a distributee for the balance found in his hands, after allowing all disbursements, with interest from- the time it fell due, for six years, to be compounded at the end of that term, and at the end of every subsequent term of six years. The rule established in Fall’s case, we think, was liberal enough, and especially so, when applied to the facts of this case. It is said that there is no evidence that the executors loaned the funds in their hands, or used them for their own benefit. The answer to that suggestion, is the refusal or neglect of the executors to make annual returns,, showing the true condition of the estate in their hands, raises a presumption against them, and in our judgment,, they were properly charged with compound interest, after the expiration of six years, according to the rule established by this Court in Fall’s case. Let the judgment of the Court below be affirmed.