The defendant William in his answer admitted the debt, the arbitration and the award, but he insisted that his mother was liable for the expense of educating the four youngest children, which she had never defrayed, it having been borne by his intestate, Thomas, the elder; that in consideration of this liability to the four younger children, the mother had relinquished to them the whole of that debt, which was not more than a reasonable compensation for the nurture and education charged upon the residue bequeathed to her; that to induce the mother to do this, he had paid her £ 150. The defendant denied that the plaintiffs were entitled to any part of the £ 859, and averred that he had paid the defendant Thomas, the younger, and the husband of Mary, their share thereof. It was in proof that the intestate, Thomas, the elder, had paid all the expenses of educating the three sons of his brother. It did not appear how much had been expended upon the education of Mary, but it was proved that she had married respectably.
No proof of any payments by the defendant William, as alleged by him, was offered.
It appeared from the record in the cause that the order of (366) reference had been made at a former term, and that it was not renewed at the term immediately preceding that to which the report was returned. The master, in his report, stated that as the defendant William, the younger, was a resident of another state, he had served notices of the time and place of taking the account upon his counsel in this Court.
Exceptions were filed to this report by the defendant William:
1. Because the master had not allowed the defendant the sum of £ 150 paid the mother. *Page 206
2. Because he had not charged the fund with the expenses of nurturing and educating the four youngest children.
3. Because interest had been computed from a period before the bill was filed, viz., from 1804.
4. Because the order of reference was not renewed at the last term.
5. Because notice of the time and place of taking the account had not been personally served upon him. Upon the will, any residue remaining at the death of the widow is clearly devisable amongst the surviving children equally. Up to that event, the profits belonged to the widow, and the whole was subject to the charge of educating the younger children. But the report is predicated on a false basis, the award and transfer of the debt by the mother. There is no evidence of such a transfer. The plaintiffs allege one to all the children then living. This is expressly denied by the defendant William, and the plaintiff has taken no proof. That defendant admits, or insists on, a different assignment, namely, one to the four children, excluding Martha, and (367) says that he paid £ 150 for it. Of this defendant has offered no proof, and being a new and distinct allegation his answer to this point, is not evidence. It is only evidence when responsive to the bill. It is not like one charging and discharging himself in the same breath, and from the same fact, standing as one admission. It is a denial of the plaintiff's allegation, and then bringing forward a new fact, as a title in himself. There being no proper proof of any assignment, both are laid out of the case, which must be left to stand on the will. By that it is declared by the Court that the plaintiff, in the case which has happened, is entitled to one-third of the sum of £ 857. Consequently, the first exception is overruled. Then, as to the interest: it is to be observed that the defendant does not say that he has not used the money, and he does not bring it into court and render an account. On the contrary, he denies the plaintiff's right altogether. Under such circumstances he is chargeable with interest from the time the legacy became due to the plaintiffs, that is, from the death of their mother. To that extent the third exception is allowed, and overruled for the balance.
The second exception goes to the charge of education. That was certainly to be defrayed out of this fund. But when a near relative, and the head of the family, takes charge on his own private purse, it must be held to be for the benefit of the whole estate, and not restricted to be a personal bounty to particular children. It is most probable that *Page 207 the understanding of the parties was that this very debt of General Person should be paid in that way. If so, it was a most unpardonable and unconscientious advantage taken of his estate to claim it after his death. But it is too late to consider that now. It has been settled, without any deductions for his disbursements for his nephews. How can his nephew ask now that the allowance, instead of being made to him, should be given over to them? But if this were not so, it is plain that the expenses contemplated by the testator in 1778 (368) would not have exceeded the income from the estate. The tenant for life was therefore responsible, and the profits accruing in her time are adequate. They are in the defendant's hands, and must remain there, for anything which can be decreed in this suit. Defendant says she surrendered them. We must take that for granted until her representatives shall contest it. Admitting it to be so, those profits constituted a compensation for the education, that is, such an education as the children could have got in the country at that time. This exception is, therefore, overruled. And the master will immediately compute the legacy according to these directions.
The account here has been taken according to the course of the Court. The order of reference need not be specially renewed at every term. The defendant being a resident of another state, and having no agent mentioned of record, or known to the master or parties, it was regular to serve the notices to attend the master, on the solicitor or counsel in court.
PER CURIAM. Decree that the plaintiffs are entitled to one-third of the amount of the award, and charge the defendant, the administrator of Thomas Person, the elder, with interest thereon from the death of the mother in 1813; and an account is directed accordingly.
(369)