The account as stated in the report of the referee made to the present term does not conform in its details to the directions (489) of the Court heretofore given in several material respects. Indeed it is so much at variance with the instructions given that we deem it better, without passing severally upon the exceptions of the parties to it to recommit the report, with instructions to restate the account in accordance with the further instruction given in this opinion, and make report to the present term.
With the view to ascertain the value of the interest of B. F. Lockhart in the estate of the testator of the plaintiff, the referee will ascertain the net value of that estate on 25 June, 1865. To this end he will first ascertain the gross value thereof as of that day. He will then and also the costs of administration. This will embrace commissions on the fund, no matter to whom due, and fees properly paid to counsel.
Secondly, he will ascertain the value of the life estate of B. F. Lockhart in two-thirds of the net value of the estate of the testator of the plaintiff — that is, the interest on that sum from the day mentioned until the death of Lockhart. To this sum must be added any commissions due to Lockhart as executor. He was entitled to commissions upon collections and disbursements made by him. In ascertaining what was due him in the aggregate he must be charged with such moneys as he received as executor, and credited with such sums of money as he properly disbursed in the payment of costs and debts against the estate. Any sum remaining in his hands and not accounted for must be deducted from the sum due to him.
It seems that he did not disburse all the money that be collected. It, however, does not appear that he misapplied any part of it while he continued to be executor. There is only ground of suspicion that he did. Under the circumstances of this case he will not be charged with interest in this respect. But if he failed to pay the plaintiff any money remaining in this hands at the time he was removed as executor, then he must, be charged with interest on that sum from the date of the removal. *Page 417
Thirdly, he will ascertain what sum remained due from the (490) testator of the defendant to the plaintiff on the first day of the present term, on account of the balance unpaid of the decree of 25 November, 1868, for $12,077.34.
From such balance due must be deducted the net sum due to Lockhart ascertained as above indicated.
It is so ordered.
SMITH, J., did not sit.