The defendant Blackwell, in his answer, denied all the charges in the bill except that as to the negro. He admitted the agreement by the testator to sell the slave to Simmons, and his subsequent wish to avoid that sale, and averred that the testator told him if he would contrive to have the bargain rescinded he would give him (the defendant) that slave; that as well to induce the purchaser to rescind the bargain as to effect the gift, the bill of sale was executed. He denied the right of the plaintiffs to an account of the slave, and insisted that he had made a full return and account of all the assets in his hands.
The defendant Byars denied ever having received any assets of the testator, and stated that he had left the management of the estate to the defendant Blackwell.
A reference to the clerk was directed, who reported that the defendants had settled their accounts with the commissioners appointed by the county court; that after allowing them $35 for commissions, there was a balance of $29.76 in the hands of the defendant Blackwell; that upon examination of the testimony before him he had charged the latter with $500 for the value of the negro mentioned in the pleadings, and also with other small omissions, amounting to $19; and further, that upon the evidence he had charged the defendant Byars with $300 for the value of a female slave which he, the clerk, supposed to belong to the testator.
The defendants excepted (1) because the clerk erred in undertaking to decide upon the title of the negro claimed by Blackwell, and also because his decision was erroneous; (2) because the clerk had erred in charging Blackwell $19 for the small items mentioned in his report; (3) because he had allowed the defendants no commissions for settling the estate; (4) because he had erred in charging the defendant (3) Byars with $300 as the value of a female slave. The case comes on upon exceptions to the report. The first exception consists of two parts: first, that the clerk had not power to try the title to the slave; secondly, if he had, that he had improperly charged the defendant Blackwell with his value, as part of testator's estate.
There certainly can be no force in the first objections. It is in substance saying that the court, for whom the clerk acts has no right to try the question. What he does has no force until ratified, directly or indirectly, when it becomes the act of the court, in which his agency is entirely lost. What he did only facilitated our labors, as we might have done the act without his aid. *Page 13
As to the latter part of the exception, that the slave belonged to the defendant Blackwell, and not to his testator, we concur in the opinion of the clerk, notwithstanding the evidence proves a bill of sale from the testator to the defendant, as it at the same time proves a very foul fraud practiced by the latter on the former, by using a bill of sale for a purpose contrary to the intent to which it was given. This exception is, therefore overruled.
The second exception must share the same fate, for it is satisfactorily proven that the small articles charged to the defendant belonged to the testator, and not to the defendant.
We are somewhat at a loss to understand whether it is meant by the third exception that commissions were not allowed on the additional articles wherewith the defendants are now charged by the clerk, or that they had not been allowed on their former settlement. If the former be meant, there are two objections. The first is, payment to a legatee or distributee is not a disbursement within the meaning (4) of the act of Assembly giving them, and receiving a debt from himself is not a collection, upon which they are allowed to an executor. But there is a second ground of objection, which must prove fatal to the defendant Blackwell. Commissions are allowed on fair transactions, and to honest and faithful agents. I speak now exclusively of the defendant Blackwell, who was willing, from his own answer, to join with (and, the probability is, to advise) his poor, old, superannuated father to cheat Simmons, by antedating his bill of sale, and now fraudulently uses it against the old man. If he means that commissions were not allowed on his former settlement, this is not a proper time to bring forward the claim. The presumption is that they have been allowed, or the claim brought forward and rejected. But it appears that heretofore, when a settlement of his accounts was made by commissioners under an order of the county court, $35 was allowed the executors for the payment of debts, and as compensation for services rendered before the division. And it is now eight or ten years since they ought to have settled their accounts. This exception is, therefore, overruled.
Strictly speaking, we ought, perhaps, also to disallow the fourth exception, in favor of Byars, the other executor, in regard to the female slave. But as he says he never acted on the estate, and as this bill is in its frame rather a bill to surcharge and falsify, and all the specific charges are against the other defendant, and nothing is alleged as to the administration of Byars except by general words, he might suppose that he was joined only for comformity [conformity], and may have been surprised by that charge. We will, therefore, refer the case again to the clerk on that point. The report is therefore confirmed, except as to the charge of *Page 14 $300 against the defendant Byars, as to which it is again referred to the clerk, with power to examine the parties on oath, and to hear such proof as they may offer, and report to this Court.
(5) DECREE: It appears from the report that there is in the hands of the defendant Blackwell, exclusive of such interest as may be due thereon, $548, principal. Decree, that he pay the same, with interest thereon, to be computed by the clerk of this Court, at the rate of 6 per cent per annum, from the time of the death of the testator, taking the time of his death from the admission in the defendant's answer. And that in default of such payment, execution issue therefor. Let the defendant Blackwell pay all the costs of this suit, except the costs of the defendant Byars, which are reserved for further order.