The opinion of the Court was delivered by
Black, C. J.We referred the accounts in this case to the auditor to report whether the executor should be charged with any interest or profits on money of the estate in his hands, and, if so, to what amount. No fact has been reported from which we can say that he has made any specific sum in the shape of profits by the use of the money. He denied' on his oath that he had used it at all. Notwithstanding this denial 'the auditor has found on all the evidence before him, that he is chargeable with interest. This general conclusion we think is very well warranted. The accountant might have invested the funds, and ought to have done so. ■
But we are not so clear that it was right to compound the interest by making annual rests in the calculation, or to charge it from the day of the testator’s death.
If the executor had put the money out on good security, yielding a simple interest of six per cent., no fault could have been found with his conduct. The legatees ought' to be satisfied if they receive as much as they would have got if he had done his duty. The payment of the interest out of his own pocket is a penalty which he must suffer for his negligence or default. But we _ cannot charge him with imaginary profits which he-did not get, and was not bound to make.
It is contended that the accountant should show how he managed the estate, and that if he does not do so, all presumptions are against him. It is true that when a party withholds evidence, which he might produce, or fabricates devices of any kind to *182escape responsibility, Courts will make no inference in his favor which they are not compelled to make by clear proof. But there is nothing to excite the odium spoliatoris against this executor. He denied that he had used the fund. He was called by the counsel of the legatees and sworn. On his oath he persisted in the denial. He is contradicted by no direct evidence, nor by any circumstances strong enough to be called proof. In a proceeding in the Orphans’ Court when one party calls and SAvears the other the oath must be taken for true, unless it be clearly disapproved. This is the general rule in equity. I will not say Avhere the burden of proof lay before the accountant was sworn; but it was certainly on the legatees afterwards. It ayíII not do to charge a man with misbehavior, attempt to convict him by means of his own oath, and, when that fails, charge him with perjury into the bargain. He who demands the oath of his adversary must not trifle with it, nor treat it as a light matter when he gets it. We do not understand the auditor to have given the harsh judgment, that the accountant was guilty of perjury, and if he had, we must have disapproved it entirely, for there is nothing to justify it.
For these reasons the accounts are referred' back to the auditor with directions to make a new calculation, and charge the accountant with simple interest, commencing at one year from the probate of the will.
Lewis, J., agreed to the decree, but did not wish to be understood as adopting the principle that simple interest only is the proper rule in all cases.