Phelps v. Slade

The opinion of the Court was delivered by Williams, C. J. This subject has heretofore been before this court. The commissioners, at a former term, returned 'the account of the administrators into court, and adopted a rule of casting interest which to them appeared equitable. 'The report was recommitted with particular instructions on that subject. The report is returned with the interest cast, and the administrators now object to any allowance for interest. It is difficult to lay down any general rule on the subject of interest, applicable to every case arising on an administrator’s account. The circumstances of each particular case may vary the rule, and lay the foundation for the application of a new principle. Executors and administrators are trustees, and must be faithful ill the execution of their trust, and so conduct as not to subject the estate to any unnecessary expense or charge. If the sums received by them are large, and cannot be immediately applied to extinguish claims against the estate, they should be deposited where they can be available and productive, if it can be done with safety, or without subjecting the trustees to hazard. This, however, is not the case before us. If the sums received gre small, and tire debts against an estate are large, it may not be practicable to apply the sums in payment of the debts. In such a case, the administrator could not pay out the sums as fast as received, but would be justified in retaining until he could apply them, and ought not to be charged with interest. In short, whether he should be charged with interest, will depend on considerations arising from the facts and circumstances of each particular case. In the case before us, the court at a former term, when the subject was before them, adopted a rule for this case, and gave their instructions accordingly, and we do not feel at liberty to depart from it. Another tribunal might have adopted a rule more favorable to the administrators, or less favorable, according- to their view of the equity of the case. [196] The commissioners have taken a correct view of the rule laid down by the court, i. e. to credit the administra,tors with the whole list of claims, and, as the estate was solvent, allow them interest thereon. It has been usual, in the settlement of accounts of this kind, thus to credit the administrators the whole amount of the claims allowed against the estate, and although I have had doubts as to the correctness of this method of settling administrators’ accounts, yet, it is sanctioned by usage, and by the practice of this court. The account must, therefore, be allowed, as cast by the commissioners. A claim for cost is ' made by both parties. The account allowed against the administrators by the probate court, was one hundred eighty eight dollars. From this they appealed. The sum now allowed is but about sixty dollars. The seventh Section of the probate act provides, that on appeals from the probate court, cost shall be taxed in favor of the party recovering. Although one of the administrators is found in arrear, yet, he has succeeded in reducing the sums allowed against him. It might be difficult to say, which was the party recovering. The heirs claimed a large balance, as allowed by the probate court. They have failed in establishing this claim. The administrators claimed a balance, and on the first hearing the commissioners found a sum due to them. They have failed in establishing this claim. In the state of New Hampshire, in the case of Griswold v. Chandler, 6 N. H. R. 61, very similar to this, the court refused to tax cost for either party, as neither was entirely in the right. The provisions of the New Hampshire statute were very similar to the section of our statute, above referred to, and no discretionary power was given to the court. In the present case, no cost will be allowed, as both parties may be considered as recovering, and neither of them so exclusively so, as to be entitled to cost. The statute of 1833 makes it discretionary witli the courl whether to tax cost or not, in all appeals thereafter taken.