Upon the death of the widow, in 1828, the estate to be divided was of the value of nearly $8,000, and the executor immediately distributed the slaves of which the title was undisputed, to the value of $4,184.81; and at that time Maurice received from his coexecutor, who resided in Tennessee, $290.89 which he had in his hands by the permission of his mother, of the principal money collected on debts due the testator. The residue of the moneys collected on those debts bequeathed to the widow for life had been used by her, and was to be accounted for by her administrator, with whom no settlement was made, nor could be made, in consequence of the death of the executor of the widow, and a litigation about the probate of his will. At the first term after the filing of this bill, which was in August, 1831, the defendants James W. Smith and Maurice Smith, executors of Samuel Smith, the elder, answered and submitted to an account. Soon afterwards the defendant Maurice made a settlement with his mother's administrator, and received the sum of $1,528.94. The plaintiffs replied to the answer, but took no testimony. Upon a reference to the master, accounts were taken upon the answers and interrogatories to the parties. In the report the slave Amey and her increase were estimated as part of the estate to be divided among all the children, and in the account the defendant Maurice Smith was charged with interest on the sums of money which came into his hands from the time he received them, though it did not appear that he had used the money or made any profit on it up to that time. Upon the coming in of the report, an order was made that the defendants might pay into court such moneys as they might admit to be due the estate, without prejudice to the rights of any of the parties. *Page 426
(537) The defendant Samuel H. Smith, executor of Samuel Smith, the younger, excepted to the report because by it the proceeds of the sale of Amey and her children were stated to be a part of the estate to be divided among all the children were stated to be a part of the estate to be divided among all the children of Samuel Smith, the elder, and no notice taken of nor any effect given (as to any of the parties) to the agreement or relinquishment made to his testator.
The defendant Maurice Smith excepted to the charges of interest against him. The exception of the defendant Samuel H. Smith, executor of Samuel Smith, the younger, which raises the question whether the gift of the negro woman Amey is valid or not, must be wholly overruled. The writing is not under seal, and the possession did not accompany it. The slave was then and for many years afterwards held by the widow, and could not be delivered. A gift is not effectual unless it be made by deed or delivery. As to the voluntary confirmation of the release on their part by the defendants Maurice and James W., they will doubtless act on it between themselves and their brother's family. But it is not the subject of judicial cognizance in the distribution of the estate by decree. The money is still, in law, the property of those to whom the testator gave it.
To the charges of interest in the account reported by the master, the defendant Maurice has put in an exception which we think must be allowed. It could not have been the expectation or wish of any of the parties that the small sum of $290.89 should be distributed amongst ten legatees before a general settlement; and the executor might, therefore, very properly not offer it. As to the larger sum received from the mother's administrator, it stands upon a different ground. It came to the defendant's hands pending this suit for it, and it was (538) reasonable that the executor should keep it to answer the decree. He made no resistance to the account and has excepted to no part of the report but the charges of interest. He ought not to be charged interest on the money which he ought to have kept, and as far as appears did keep, until the rights of the parties could be ascertained. It does not appear upon what ground the charge of $11.96 for interest on a debt of William Smith, is made by the master against Maurice Smith. There is no evidence relative to it, and therefore the account must also be corrected in that respect. *Page 427
After allowing the exception of the defendant Maurice, and reforming the report accordingly, the report and account must in all other respects stand confirmed.
There arises, however, upon the making of the decree, another question upon the subject of interest which in our opinion is against the executor Maurice. Upon the coming in of the report at September Term, 1832, an order was made that the defendants might pay into court such money as they might admit to be due the estate, and without prejudice to the rights of any of the parties as to their shares. This defendant had then an opportunity of discharging himself from further responsibility, and upon the paying in of the money the court might have ordered at least a partial distribution. He has not availed himself of the leave granted to him, and we must presume that he has retained the money either for his own use or male fide for the purpose of depriving the owners of the use of it, and in either case it is just that he should pay interest since that time. The decree will accordingly be that the shares of each shall carry interest from September, 1832, until paid. The costs had nearly all accrued before that order; and as no default in the executor prior to that time appears, it is proper that the fund should answer the costs; and, therefore, they must be paid equally by all the parties out of their shares.
PER CURIAM. Overrule the exception of the defendant Samuel H. Smith, and sustain that of the defendant Maurice Smith, and decree according to the report of the master thus corrected, allowing interest on each of the shares from September Term, 1832, of (539) the Superior Court for Granville, till paid; all the costs of plaintiffs and defendants to be paid equally by the parties interested in the estate.
Cited: Munds v. Cassidy, 98 N.C. 565.