The modification made in the judgment of the Department in this case does not, in my opinion, rectify all the errors of which appellant has a right to complain, and is not, therefore, a sufficient ground for denying him a rehearing. Even allowing that he is justly chargeable with interest compounded annually at the rate of ten per cent on the funds in his hands, he is still entitled to be credited with the payments made by him at the dates when they were made. By the method of computation followed in arriving at the amount of the judgment now given, *357interest is calculated on the whole of each annual balance for a whole year, and from the amount of principal and interest all the payments made during the year are aggregated, and deducted as if they had all been made on the last day instead of having been made, as the record shows they were, from time to time during the year. This error is partially compensated, it is true, by treating his receipts in the same way, but since his payments were largely in excess of his receipts, the erroneous method of computation necessarily works to his disadvantage.
This, however, is a trifling matter compared to the error—as I deem it to be—of allowing interest at the rate of ten per cent, instead of the legal rate of seven per cent. I know of no authority for allowing interest, as such, at any greater than the legal rate. It is, of course, permissible in a proper case under pleadings properly framed to allow actual profits realized by a trustee upon trust funds, and there is, perhaps, no objection to computing or measuring such profits by compounding interest at any given rate. But this is no such case, certainly not on the pleadings, and, in my opinion, not even on the findings.
The form of proceeding by petition to the probate court was, confessedly, a mistake, but by what I cannot help regarding as too great a concession on the part of this court, the petition so filed, and the exceptions to the account filed by appellant, are treated as the equivalent of a bill in equity by a cestui que trust, against a delinquent trustee, and it is assumed that they, together with the account filed by appellant, made issues, and, amongst others, an issue as to actual profits derived by the appellant from the trust fund. In my opinion no such issue was made on the most liberal construction that can be given to the petition and exceptions, and, therefore, the .superior court had no right to try it or to decree actual profits. It is also a serious objection to the judgment that the proper parties to a suit in equity were not before the court, and, on the evidence, it does *358not seem to me that the appellant has been guilty of such misconduct as to call for the infliction of a penalty, or to entitle the petitioners to recover anything more than the fund received by the appellant, with legal interest compounded.
For these reasons I dissent from the order denying a rehearing.