The bill of exceptions states that, “ upon the foregoing evidences and admissions, the written vouchers on file, and no other evidence, the court rendered its final judgment.”
It is contended that the “written vouchers on file,” except those pertaining to the contested items, not being set out in the bill of exceptions, this court can not hold there was error in any of the rulings of the court below, involving questions of fact, on the ground that all the evidence upon which the court acted is not set out.
This, we think, would not be a reasonable construction of the bill of exceptions. The final decree is founded, in part, upon many items for which vouchers existed, and as to which there was no contest. These are the “ written vouchers on file,” referred to in the bill of exceptions, between which and the contested items, we can see no possible connection. We therefore hold, that the bill of exceptions sufficiently shows, that all the evidence upon which the court acted, having relation to the contested items, is set forth, .and we proceed to the consideration of the assignments of error.
An executor, or administrator, is prima facie liable for interest on the funds of the estate in his hands, unless he “ expressly deny on oath,” that he has used such funds for *415his own benefit. — (Code, sec. 1813.) The affidavit of the executor, in the present case, though doubtless conscientiously made, and perhaps as explicit as it could be, under the circumstances, contains no such express denial, within the meaning of the Code, and is therefore insufficient to exonerate him from liability for interest. — (Farmer's Distributees vs. Farmer's Administrators, 26 Ala. 672.) And this, we think, will sufficiently appear from what follows. The evidence fully authorizes the conclusion, that the executor did not keep the funds of the estate unemployed in his hands, and unmixed with his own, and it is said to be clear law, that if a trustee mixes the trust funds with his own, they, at the election of the" cestui que trust, are considered as his own. — (Key vs. Boyd, Executor, 10 Ala. 154.) They are so considered, because the mixing amounts in law to a conversion ; and the conversion necessarily includes a use of the funds ; and under section 1813 of the Code, the use thereof makes the executor or administrator liable for interest. — See Dejarnette vs. Dejarnette, decided at the present term, where many authorities are cited upon this question.
It results that the court erred in refusing to charge the executor with interest on the proceeds of the cotton crop for the year 1858, and on the amount of sales of the real and personal property.
As the decree must be reversed, and the cause remanded for another settlement, we deem it proper to say, that under the facts of the case as disclosed by the record, the executor is properly charged with interest upon all receipts, and should be credited with interest upon all disbursements, and this renders an examination of the other rulings of the court on the subject of interest, unnecessary.
The executor returned as uncollected, the following, among other promissory notes, viz: One on E. "W. Bremer and others ; one on S. H. Chiles and others; and one on I, James Lee and others, and was allowed a credit for the amount of each of said notes, with interest. These notes had been made payable to the executor in his representative character, and the presumption is, that they were *416created in the purchase of property of the estate. Prima facie, the executor is chargeable with the amounts of the sale bill, and no reason is shown why he should not be charged with the amount of these notes. If they were included in the amount of the sale bill, with which he was charged, he was not entitled to a credit therefor, as allowed by the court; and not having been charged with interest thereon, it is difficult to perceive on what grounds the executor was allowed a credit for such interest. — •(Stewart’s Administrators vs. Stewart’s Heirs, 31 Ala. 207.)
As to choses in action not resulting from sales of property of the estate, the rule is, that the burden of proof that they might have been collected by the exercise of proper diligence, rests upon the party seeking to charge the executor or administrator therewith. — (Code, §1824; Dean and Wife vs. Rathbone’s Administrator, 15 Ala. 328; Wilkinson vs. Hunter, 37 Ala. 268.)
What we have said upon this subject will afford a sufficient guide for the action of the court below, on a future settlement, as to all choses in action of the estate, in the hands of the executor.
The contestants excepted to the allowance of the following items, on the credit side of the account, viz: The amount of a note and interest on B. B. Little and others; the amount of extra compensation allowed the executor for carrying the slave Harriet and her children to a free State; the amount of extra compensation allowed to the executor for superintending and managing the plantation, slaves, and other property of the estate; the amount allowed the executor for attorney’s fees for services rendered, on the final settlement, and the amount of compensation allowed the executor as commissions.
The foregoing items are embraced in a single exception, the exception being to all of them collectively, and not to each item separately.
The rule is, that “a party asking the action of the court, must be prepared to sustain the whole demand in the precise terms in which it is made, and the refusal to act will not be error, although a portion of the request might be properly granted.” — (Carmichael vs. Brooks, 7 *417Porter, 67; Rives & Mather vs. McCloskey & Hagan, 5 Stew. & Porter, 330.)
Under the operation of this rule, the court committed no error in overruling the exception, as some of the items were proper credits. But as each of these items will doubtless be questioned on another settlement, we deem it proper to give them a separate consideration.
As to what should be the proper ruling in relation to the note of B. B. Little and others, has already been stated.
The testator directed, by his will, that his slave Harriet, and her four children, should be taken charge of by his executors, and conveyed “ to the State of Indiana, or Illinois, or Ohio,” and be permitted there to remain.. The will then proceeds as follows : “ I hereby bequeath to my executors, or either of them who may qualify as such, the sum of five thousand dollars in trust, and for the uses following, to-wit: Out of said sum- is to be paid all expenses which may arise in conveying Harriet and her children to either of the aforementioned States; the balance of said sum of money remaining is to be safely and properly invested for the benefit and support of said Harriet and children, so that the interest annually arising therefrom may, and shall be, paid over to said Harriet and her children, for their support and maintenance. Upon the faithful carrying out of the provisions of chis item of my will, I hereby discharge my executor, or executors, from all responsibility to any person whatsoever, for the slaves, or money herein méntioned.”
The testator, it will be perceived, expressly required that out of the amount of said five thousand dollars, there should be paid “ all expenses ” which might be incurred in executing the above recited provisions. An allowance to the executor therefor, for this service, would be creating a charge upon the residuum of the estate, in direct conflict with the will. We hold, too, that the executor is required to show the execution of the trusts of the will, relating to Harriet and her children, before he can claim exemption from liability to account for, at least, the amount of the bequest of five thousand dollars, less the costs of the *418chancery proceeding. Such is the meaning and intention of the will, and it is in harmony with the decree of the court of chancery, relative to the execution of said trusts.
"We have repeatedly held that reasonable compensation will not be refused to executors and administrators, except in cases of willful default or gross negligence, by which loss to the estate has been caused. — (Gould v. Hays, 19 Ala. 438; Stewart's Administrator v. Stewart's Heirs, 31 Ala. 207; Pearson and Wife v. Darrington, 32 Ala. 227; Smith v. Kennard's, Executor, 38 Ala. 695. As was said in Simmons v. Henderson, 33 Ala. 291, “ the law does not visit executors and administrators, who fill a fiduciary relation, which is indispensable in our judicial system, with severer intendments than are indulged against agents generally.” We hold, the facts of the present case do not authorize the refusal of compensation to the executor, and that he should have a reasonable allowance for his special services, in superintending the slaves, plantation, and the gathering of the crop, during the interval between the testator’s death and the sale, and should be allowed, also, his regular commissions.
As to the rules which should govern in fixing the amount of the allowance for special or extraordinary services, see Gould v. Hays, 25 Ala. 426.
A reasonable allowance for attorney’s fees, for services in aid of the executor on the final settlement, would also be proper. — (Pickens v. Pickens, 35 Ala. 442, and cases there cited.)
As to the Confederate States treasury notes funded, the previous adjudications of this court have settled the question, that upon the evidence as set forth in the bill of exceptions, the executor is entitled to a credit for the amount of the Confederate States treasury notes funded by him, and also for such amount of notes of the same character as may have been received by him in good faith, in the collection of debts due to the estate. — (Watson and Wife v. Stone, at the January term, 1867, and subsequent cases.)
As to the proof required of items on the credit side of the account, see the following authorities: Code, §§ 1809, *4191810; Pearson and Wife v. Harrington, Ala. 227 ; Henderson v. Simmons, 33 Ala. 291.
The conclusions herein expressed render it unnecessary to examine any of the other assignments of error.
Decree reversed and cause remanded.