In this case it is most convenient to make such statements of the facts, pleadings and proceedings as may be necessary to explain the points as they rise. To this end a succinct history, embracing matters not controverted will be useful.
In January, 1867, G-arland H. Dorris died intestate, leaving a widow and three small children, two of whom died soon after, whereby the complainant, Maggie E., who was the survivor, became the sole heir to all his estate, and entitled to all the personalty, saving the rights of the widow and.creditors. No question is made in this case of any rights claimed through the mother as such.
He left a large plantation in Jefferson county, including the residence, which for convenience, we will designate as the Hardioick, place; and a smaller, but still valuable plantation called the Greenfield place, which had come to him by inheritance from Nancy Hardwick, who had herself died leaving a debt unpaid.
On the 28th of January, 1867, his widow was made administratrix, and thenceforth acted under the advice of defendant’s intestate, Thos. S. James, an attorney at law. On the 22nd of May she filed an inventory and appraisement' of the personal property, footed up with the amount of $8,245, which was an error in calculation, the true amount being $8020. The choses in action reported were two notes of Wilkins & Bro., April 20, 1866, for $1000, and one oí Thomas ■ Dorris, Feb. 18, 1867, for $3,391.
At the October term, 1867, she asked and obtained permission of the Probate Court to ship the cotton crop of 1867 to Moses Greenwood & Son, of New Orleans; and in January, 1868, obtained an order to keep the property together for the benefit of the estate during the year 1868, and was ordered to render her account of the profits at the January term, 1869.
Before that time, and without ever having made any settlement, she intermarried with James, on the 23rd day of December, 1868. He procured letters de bonis non to himself at the January term, 1869, resided upon the home place with his wife and her daughter, and continued, as administrator, the management and control of the estate, as he had virtually done before, as the counseller and attorney of the widow. No guardian of the infant was then appointed.
His wife died on the 16th of July, 1872, and he was very soon afterwards appointed guardian of the heir. No administration was ever had of the wife’s estate.
At the following January term he presented to the Probate Court a petition showing that when he became administrator, in 1869, the estate was largely in debt; that the only available property consisted in the plantation; that to have sold the property would have resulted in insolvency of the estate, or that it was considered probable; that inasmuch as his wife had owned the estate, and her children were the only heirs, the Court ■had ordered him to keep the property together and cultivate it and try to pay off the debts, he having agreed to use his own means for the purpose, and having actually done so to the extent of twelve or fifteen thousand dollars. He then asked inasmuch as he had his own stock on the place, that he be allowed to keep and cultivate the plantation, charging himself with a rent of $3000 for the year 1873, which was represented as a fair valuation, deducting costs of usual repairs. He promised .in his .petition to file a settlement showing the estate largely indebted to him; represented that it was indebted to himself alone, as he had paid off' all the claims, partly with assets of,the estate, and partly with his private means; and that after the first year he could rent the place at public auction.
The petition was granted on condition that no allowance would be°.mad(3 for repairs, and that the plantation should be returned in as good condition, usual wear and tear excepted.
Accordingly on the 5th day of June, 1873, he filed the promised settlement, which was the first ever made, bringing it down to the 1st of April, 1873. It is out of this settlement that all the important matters in controversy in this case arise. He accompanied it with an explanation attached, showing that inasmuch as no sale of the personal property had ever been made, the estate having been kept and managed under the general order of the Court, and inasmuch as a great deal of the property , which had been appraised, at high prices, was dead, and no settlement had been made by the’ former administra- . trix,. he . had adopte.d the mode of settlement offered, by ..’charging himself with two-thirds of the appraisment ¿filed by the .widow,--alio whig one. third for . her .dower, and charging himself with interest, and upon each item of assets, and crediting himself with interest on payments, both at the rate of six per cent.
He reported further that he had found the estate insolvent, the plantation out of repair and in bad condition; and the heir being the child of his wife, he had undertaken to repair it and pay it out of debt; that for six years he had advanced all of his private means for the purpose, even selling his real estate, and that the money for which he only charged 6 per cent., was worth to him 15. He did that, “being perfectly willing,” as he says„ “to make a fair settlement, and giving the estate all the benefit of the difference of interest.”
Reserving further comment on this settlement, the errors of which it is claimed, run through and effect the subsequent ones, it is sufficient for the rest to say: that he failed to file any settlement in 1874 ; but did file am nual settlements each April, afterwards in the years 1875, 1876 and 1877, which, with the first were all duly confirmed without exceptions. Each settlement begins with a balance of credits shown by the former, making a new rest for interests, and thus there appears m the last a balance of $15, 424.60, to the credit of the administrator. At the same time with the filing of the last settlement he presented another petition to the Probate Court, showing this indebtedness of the estate to himself, and how it had'been incurred, that the clear income of the lands was about $3,000; that the minor was now a young lady of 15 years, and required'to be sent off to school and educated and maintained in a style suited to her condition in life, which would require $1,000, per .annum; and that it would require many years.to pay off" the indebtedness. Further, that she w;as indebted .to -him as her guardian, for advances, and that. ..the ....estate owned a large quantity of lands worth about $40,000, much of which was unimproved and burdened with a heavy annual tax. He asks an order to sell so much of said lands as might be necessary to pay the debt, reserving the plantation and selling only unimproved lands and the Greenfield place. The petition was granted, in accordance with the prayer, and an order made, designating the lands to be sold.
At this stage of the proceedings the heir became dissatisfied. R. W. Trimble was appointed her guardian on the 23d day of July, 1877, and soon afterwards filed this bill in her behalf, charging fraud in the management of the estate, and in the settlements; alleging that in truth James was indebted to it; and seeking to re-open the settlements and re-state the accounts. During the proceedings the defendant James died and the complainant married. The husband D. L. Trimble joined as party complainant, and the suit was revived against Neel, who became at the same time administrator of both estates, that is of James and of Dorris.
The bill was answered at length, denying, or explaining the several specifications as to fraud; and insisting that the administration of James, although confessedly irregular, had been i.n ’good faith directed to the true interests of the minor; that the administrator had made it his'primary object to protect the estate and. save it for her, which he had done at great personal sacrifice. That a large amount of the charges against him had been assumed, in the settlement, out of generosity, and with a desire thereby to reach a result, which, on the whole, might be equitable, disregarding legal technicalities, which had been disregarded throughout; that the sole heir being the daughter of his wife, he had rather regard ed her interests than the rules of law, andbad in fact -so managed as to save her a large estate, which otherwise would have proved insolvent. He submits that his settlements are just and liberal, but if not, and if he be held to a strict legal settlement, he submits that he be allowed those charges which he was not legally bound to have assumed, but which he did assume in settlement, to make it liberal, just and equitable in the result.
The cause was heard upon the pleadings, exhibits and a great mass of testimony as to details and specific items, involved in the controversy. The Chancellor upon the whole case found for the defendant, and deeming there was no equity in the relief sought, dismissed the suit. Trimble and wife appealed.
The principles which should govern Courts of Chancery in interfering with the proceedings and adjudications of the Courts of Probate in the administration of estates, have been announced upon several occasions, by this Court, since the adoption of the Constitution of 1874. See the cases of Osborn et al v. Graham, 30 Ark., 66; Reinhardt v. Gartrell, 33 Ib., 727; Mock et al v. Pleasants, 34 Ib., 63; Nathan v. Lehman et al, 39 Ib., 256.
When settlements have been duly confirmed, the ders of confirmation nave the force and effect of iud£-. ments, which, if erroneous, may be corrected by appeal. But the original jurisdiction of the Probate Courts is elusive, and no other Court, save in the course of appeal, can impeach or control their action for mere error. Courts of Chancery, however, may interfere to correct fraud, or relieve against accident, or upon some other ground of acknowledged equity jurisdiction, to prevent irremediable mischief. Such interference to extend only so far as to effect the object.
xhe question presented in this ease is, has there been any fraud practiced by the administrator, by which the complainant has been so inj ured as to invoke the aid of a Court of Equity. Mere errors, unless sufficiently gross to raise the presumption of fraud, will not suffice. But fraud itself, whether actual or intended, or without base motive, practiced against the policy of the law; or in other words, constructive fraud, will suffice.
In general, the security of property and the peace of the community require, that, save in appellate proceedings, settlements should not be disturbed, where substantial justice has been done. Or even when it has not, when the errors have been legal or technical, untainted by actual fraud, and unaffected by practices however honestly intended, which the policy of the law will net permit. The Judges of Probate Courts are not required to be men learned in the law. As a general thing they, and administrators also, are more apt to be distinguished for business common sense, and a rude sense of justice and fair dealing between man and man, than for technical learning. In many cases, also, administration settlements partake largely of the nature of family adjustments. This is not proper, of course, and upon appeal the Probate Courts will be held to a strict pursuance of the law. But when not so corrected, if they remain liable to attack, and readjustment afterwards, when time may have obliterated the memory of details, and witnesses may be dead, and documentary evidence and private memoranda may be lost, no man, not an accurate lawyer, could, with safety to- himself, undertake the settlement of an important estate.
' ’ The bill makes thirty-eight specifications of fraud in the first settlement, which, by the answer, are denied, explained or justified. Of these it is enough now to say that a, great number of them are sustained by the proof, or admitted'as matters of fact, in the answer. They are mostly oí this nature. During the administration of Mrs. Dorris, and afterwards, during his own, James, acting in behalf of the representative of the estate, compromised, or bought in for less than their probated amount, a great many large claims against it, which he afterwards charged in his settlement of 1873 at their full value at six per cent.; thus showing a large balance in his favor. His counsel contend here, tbatin’doing this he only exercised the right to invest his own money as any other business man might have done, and that no fraud was intended, but rather a benefit to the estate, the liabilities of which were not thereby increased. But on the other hand the estate gained time, by which a sale -was prevented, and it was saved from insolvency. Of this intention and of this effect, there is no reason to doubt. Under the circumstances disclosed by the transcript we would be loth to say that there was on his part, any motive to commit a breach of confidence, or avaraeious desire to enrich himself at the expense of his step-daughter. We are not sure that he has done so even if his settlement be allowed; because he raised the funds by borrowing at ruinous rates of interest, and by sales of his property. There is also a moral certainty, that the estate would not have paid these debts in full, if the strict course of law had been pursued, which the creditors might have compelled; in 'which ease the heir would have been impoverished, instead of having yet a handsome estate, with a liberal income.
Conceding all this, the transactions were such as from public policy, the Courts of Equity can never allow, but must sternly regard as constructive fraud, and correct whenever properly appealed to for the purpose — regardless of motive. As the adviser of Mrs. Dorris whilst administratrix, and as administrator d. b. n. after his appointment, he stood in a fiduciary relation to the estate to save as much of it as possible, to make a speedy settlement, and to pay the claims as far as practicable — to the last cent if possible, and to save the heir what the creditors might abate. This was in the line of the duty he had assumed. The line of his interest in speculating upon the claims was to prolong the settlements, depreciate the claims, harrass the creditors by delays and impediments, and when paid, to deprive the heir of all advantage in the discounts. No one can be allowed to assume a position in which his interests are antogonistic to his duties, and derive a personal benefit from it. However firm the virtue of individuals may be, human nature as a general rule cannot endure the test, and equity, for security, removes the temptation by the inflexible rule, that all profits of the trustee, saving, perhaps, reasonable compensation, must enure to the benefit of the cestuisque trustent. The heir has the right to the correction of all such items, upon such terms as the Court may deem equitable.
Many of the specifications are not fraudulent in themselves, nor are the others which would be, fully sustain-in every instance. The administrator in the first settlement assumes the burden of incorporating his wife’s administration with his own, and begins by charging himself with two-thirds of the value of the appraisement, upon the erroneous footing of the total. He charged himself further with two-thirds of the Dorris note, and of the rents of the Hardwick place for the years from 1867 to 1872 inclusive, upon the estimate of $3000 a year (being $2000); and with two-thirds of the rents of the Gr eenfield place for the years ’71 and ’72 upon an estimated rental value of $500 a year (being $666.66). It is charged that this was fraudulent, as, assuming his wife’s liability, he should have charged himself with the whole of the appraisement, and the whole rents, at a higher value, not only during his own administration, but hers also.
There was certai n ly no fraud in this. Even if the administratrix had been accountable for any rent, or James had been so accountable, as the husband of the widow, after her marriage, it would not have been for more than two-thirds of the value, as to any of the lands; her dower having never been assigned. Gantt’s Dig., Sec. 66; 8 Ark., p. 9. But really with regard to the Hardwick place, including the mansion house and lands attached, the widow had never been liable for any rents whatever. (Gantt’s Dig., Sec. 2227 and 8 Ark., supra). It is not the duty of the widow to demand her dower until she may choose to claim it. She may rest in possession of the mansion and farm attached, free of rent, and enjoy one-third of the rents of other lands until those interested in having her confined to a more specific claim, may take steps to have her dower assigned. This is, primarily, the duty of the heir, or the guardian, if the heir be a minor. Gantt’s Dig., sections 2239-40-41. James did not become the guardian of the heir until after the death of the wife.
This right of the wife, although likened to the common law quarantine, is not derived from it. It is created by statute and governed by its terms. There is nothing to indicate an intention that it shall exist durante viduitate alone. It exists “ until her dower shall be laid off and assigned,” and there is no more reason for contending that it shall cease with marriage than that her dower shall. 'With regard to the personal property and choses • also, the widow’s right to a thir.d was unquestionable, and passed to her husband on marriage. By the law as it then existed, the whole of the choses in action were subject to debts. But the estate has proved to be solvent at last, and the claim is made here against the estate of James, not by a creditor, but the heir.
So far from any fraud appearing in the charges made against himself as to this personalty and rents, the surprising thing, upon any theory of bad faith in James, is that he made any charge against himself at all for the rents of the Hardwick place for the years from 1867 to 1872, inclusive. They involve many thousands of dollars, and he would not have been liable for a dollar of the amount on strict settlement. After the death of his wife, in July, 1872, neither place had any rental value for the remainder of the year. After 1872 he was properly chargeable with full rents on both places.
The estimated values of the rents, contained in this and subsequent settlements, seem at first view rather low as compared with the evidence, but they are not without evidence to support them; and taken in connection with the deliberate judgment of the Court in fixing the rent for one of the years, by a special order, at the same amount, and considering that the burden of repairs was assumed, we do not feel inclined to disturb them.
The charges of fraud made as to the subsequent settlements, regard interest on the balances, which are calculated upon the face or probated value of the claims, and compounded at each settlement. This was, of course, wrong, and must be corrected equitably. The administrator is entitled only to actual advances, with simple interest at six per cent, till repayment, without intervening rests. The charges as to low rentals are repeated for the subsequent years.
~We are unable to believe, notwithstanding the egregrious errors of those settlements and the irregular management of the whole administration, from beginning to end, that any fraudulent design was ever entertained by James of injuring his step-daughter; and it is yet a matter of very grave doubt rvhether, upon the whole, she has not been saved from poverty by his mistaken proceedings. Certainly his actions have not been those of a crafty, avaricious man, endeavoring to swallow up the estate; for if he meant that he would not have unnecessarily burdened himself with such enormous charges. He says they were gratuities, and they were doubtless made to cover any improper credits per contra, so as to make what he believed to be a fair and equitable adjustment between the estate and himself.
Although his credits are in law fraudulent, and must be so held; yet there would, in the absence of actual fraud, be no equitable ground of relief, unless there had been injury also. Besides, Courts of Equity can always mould the relief they extend, and impose equitable terms for its exercise.
Whoever asks equity must do equity. It would i . -,, be as unjust to allow the heir to avail herself these gratuitous charges intended for equalization, exact a strict settlement in all other respects, as it would be to allow the administrator to claim his excessive credits, even if he had only charged himself with what he legally should.
His honor, the Chancellor, was, on the whole case, 7 77 7 the opiuion that no equity had been made out. cannot determine whether or not the complainant entitled to relief until we find how the balance would stand upon correction of erxors on both, sides. If such a statement should show no material diminution of the balance charged on the last settlement against the estate, it would appear that there had been no injury, othei’wise the decree should be reversed. For this purpose a cross-bill is not necessary. Where the defendant seeks no positive relief against the complainant, but only to annuli the equities he claims, or to modify the relief, seeking nothing beyond the dismissal of the bill, it may be made by way of defense.
Let there be a reference to the Clerk and Master to ■ state an account upon the principles herein announced, and with the following directions; using for the purpose the pleadings, exhibits and proof contained in the trans-script, and bringing it down to the same period with that of the last settlement confirmed by the Probate Court.
DIRECTIONS ON REFERENCE.
Charge the administrator with two-thirds of the true footing of the appraisement bill, and of the Dorris note of the date of filing the same by his wife, the first administratrix.
Also with two-thirds of the value of the rents of the Greenfield place each year from the year 1867 to 1872, inclusive, estimating the values of the rentals for 1871 and 1872 as fixed by the settlement of 1873, and including all the years as above, during which said place was actually occupied, or should have been rented by the administrator, and in which the rents were of value. Charging no rents at all for the Hardwick place before the year 1873.
Also charging full rents on both places from 1873 onwards, adopting the values found by the Probate Court.
. Also all other items than those above mentioned, charged by the administrator against himself.
Let all bear interest from tbe date of receipt, tbe rent at the end of each year at six per cent, without rests until the period of balance.
AND GIVE CREDIT:
For all sums of money, or value of property, actually paid out by the administrator for the benefit of the estate, or upon probated claims, regardless of the face value of the allowances. If any claims have been settled by the use of means of the estate not charged in the inventory and appraisement, give credit only for the balance. This is specially directed to the note of Wilkins & Bro. In determining these payments examine the testimony as to the specified items of excess, and with regard to credits not questioned, use the items and amounts,contained in the confirmed reports.
Allow interest on all payments or just credits at six per cent, without rests, and strike a balance, showing the state of the account, whether for or against the estate, and the difference in the result from that reached by the Probate Court.
With regard to all matters which may arise in stating said account, concerning which no specific directions are here given, the clerk will be governed by the principles announced in this opinion, and conform the settlement to them as near as .may be. Commissions to be allowed according to the statute.
Until the coming in of said account all other matters will be reserved.
On the coming in of the Master’s report, the following final opinion was delivered :
Eakin, J.Upon the filing of the Master’s report in this case, exceptions thereto have been filed by the appellants. They also petition the Court for a reconsideration of some of the directions given upon reference, resulting from the first opinion. This has been done after the usual time for filing motions for reconsideration, but. as it has been done during the same term, and as the former opinion was given with a view to an interlocutory order of reference, the petition may very properly be considered.
Before doing that, however, or taking up the exceptions, it may properly be remarked that we are not now engaged in settling the account of James with the estate, with any view to a money decree in his favor for any definite amount, nor with a view of charging him-if it should be found that he is indebted. The Court has not directed his accounts to be surcharged and falsified, or reformed from the beginning. The simple question to be first determined is: Did the Court below err in dismissing the bill ? This Court had recognized much in the settlements which was fraudulent in law, but was further of the impression that there was no actual mala jides, and also that the administrator had, with a view to making a settlement, which on the whole might be just, charged himself with much that he need not have done. It became important to ascertain whether or not the heir had been injured by the mode of settlement adopted, in order that the action of the Court below might be tested by that consideration. This Court upon its own motion and for its own enlightenment, brought the services of the Master to aid it in details, not to base a decree upon his findings as if a reformation, or surcharging and falsifying of the accounts had been ordered, but to be better enabled to determine whether injustice had been done, by comparing the settlements as made, with such as ought to be made if the accounts were re-opened. The Court might have done this of itself and rendered a decree at once, but the labor would have been long, and mostly of a clerical character. It was simply a scheme adopted by this Court, in the exercise of its equity powers, to attain most readily the ends of substantial justice, in view of the peculiar circumstances of the case. The question, suspended for the report, now recurs again. Was the decree below, on the whole case, inequitable? If so, it must be reversed and the cause remanded for a restatement and reformation of the accounts in the Chancery Court, that the result may be made the basis of a final decree there, or certified to the Probate Court for further proceedings. If on the other hand, it be not, upon the whole, inequitable, then as heretofore intimated, this Court will sustain the Court below in declining to interfere with settlements originally made in the proper exclusive forum, and there confirmed without appeal, when no substantial injury has been done.
We are asked to reconsider so much of the former opinion as holds that the widow of Dorris was not bound to account to the estate for the rents of the home plantation whilst her dower had not been assigned. We think this has been well settled in this State by statute and decisions. Gantt’s Digest, Sec. 2227; Carnal v. Wilson, 21 Ark., 62; Mock, et al. v. Pleasants, 34 Ark., 63. The last case is specially in point. A widow administratrix was charged with fraud in not accounting for the rents and profits of a plantation, before her dower was assigned. This Court said she was under no obligation to do so. “They belonged to her, as widow, and not as administratrix. If the plaintiffs desired to have any part of them applied toward payment of the debts, they should have adopted the proper means to have had her dower assigned to her.’5 Such have been the decisions of other States under similar statutes; cited in Carnal v. Wilson, supra; Ita lex scripta est. With regard to the justice or policy of the law, or its hardship to heirs we have nothing to do. These are considerations for the legislature. The rights of the children in the devolution of the property of deceased parents depend wholly on that body. We would be much at a loss in fixing a period at ■which the right of the widow should cease, short of her assignment of dower.
If the widow was not bound to account for these rents and profits during life, then her husband was not, in settling her accounts as administratrix, or his own as administrator. Nor does it alter the case that if accumulated in her hands they would have passed to her child as distributee. It is not the administrator of her estate that is sought here to be charged, but the administrator of the estate of Dorris, to-which estate they never belonged. We adhere to the opinion that upon a strict settlement the administrator should not have been charged with these rents.
It is respectfully submitted, also, that this Court erred in permitting James to take credits for pavments made by Mrs. Dorris during her administration. Nothing has yet been definitely permitted, but we have thought it reasonable in making such enquiries as may enable us to see the substantial justice of the case, to consider how far the charge made against James for assets received by his wife as administratrix, might be abated by proper application of that fund, made by her before it came to his hands.
Passing to the exceptions to the Master’s report we notice such of them as do .not depend on the modifications of the opinion as requested.
It is urged that the Master erred in crediting James with the taxes upon the property of the estate, during the years 1867 to 1872, inclusive, whilst the widow was in possession of the rents and profits. There are no special directions as to this in the opinion. It vras not - brought in any manner to the notice of the Court. The report is in accordance with the general directions, but if there be a mistake in this item it is just to consider it.
The general rule of law certainly is that pernancy of rents and profits is the criterion of the primary obligation to discharge the taxes. Perhaps this modern statutory quarantine of the widow may present an exceptional case. The right, as is well said by counsel, is altogether a peculiar one, and must be considered in its peculiar aspect. It is not an estate in land with any certain duration. The property belongs to the heirs, subject to the payment of debts, and either the heirs or the administrator may by proper proceedings der .termine it at once, and supplant it with dower. It may not last a year and certainly cannot be apportioned. The administrator or heir may properly pay the taxes in such case. .1 have never known a case in which they have been disallowed as credits, nor have I ever before known the question to be raised Does it alter the case, if the widow’s occupation is protracted? If so, how long? When does the obligation to pay taxes begin? We confess that it seems to us a grave thing to disregard the otherwise universal rule as to pernancy of profits, but its application to the case of the widow’s occupancy is attended with embarrassments quite as grave, inasmuch as it may go far to encumber a benefit which the legislature intended she should enjoy without any conditions. It must always be remembered that the disposition of the property of decedents is wholly under legislative control, and it has indicated no intention to impose this burden on the widow as the price of her privilege. We prefer to waive this question until we ascertain whether its determination can affect the case. For the present we only remark that the taxes were paid on the whole estate, which consisted largely of property not occupied by the widow, and we have not the data for their apportionment.
It is excepted that the Master allowed James too great a credit on a certain claim alleged to have been settled with Bowe, Eussell & Co., and which he had been allowed in the Probate Court. The Master made his estimate upon a note for $2519.00, and allowed in his credits interest from due, at the rate of 10 per cent. It appears from a transcript, made Exhibit “G” of the complaint, that the note had in margin the figures $2519, but in the body the words “two thousand and nineteen dollars.” Preceding that is another allowance to the same parties on an open account of $219.95 The note, as to interest, reads, “with interest at 10 per cent, per annum for value received.” Immediately following the copy of the note, and a memorandum of its allowance by the administratrix, is the affidavit of one of the firm, that “the sum of two thousand five hundred and nineteen dollars, the within demand is justly due.” This is followed by a memorandum of its allowance by the Judge, and its classification in the 4th class. The full entry of the Probate judgment is not given in the transcript. It is contended that the words in the body of ihe note should govern, and that interest after maturity should have been only 6 per cent. We recognize the rule that words in the body of an instrument should, in the absence of proof of misprision, govern figures in the margin, but we are satisfied from the transcript, or at least think there is reason to believe, that the body of the original note agreed with the figures, and that the clerk in transcribing omitted the words “five hundred.” He had just entered the allowance for 219 dollars, and the similarity of numbers might have led him into an inadvertent error. The mind unconsciously tends to repetitions of formula. The true amount also appears in the affidavit which supports the figures, and leads to the supposition that there was no discrepancy between the figures and the body of the original note. Such an affidavit could not have been made if the body of the note were as transcribed. Again, if the judgment of allowance had been for the smaller amount it would have been in the interest of the complainants to show that by a transcript.
. An effort has been made to clear this point by a' certiorari to the Circuit Clerk to send up the judgment of the Probate Court, and a correct copy of the original note, “issued as evidence” in this case — suggesting the absence of them as diminution. The Clerk of the Circuit Court responds that he sends herewith “a full, true and complete transcript of the diminution suggested,” and attaches thereto a copy of the proceedings of the Probate Court certified by its Clerk. We may take this as indicating that the transcript from the Probate Court was used as evidence in the Chancery Court in this cause. Probably the original record of the Probate Court was used as evidence on the hearing, and this mode is now adopted of importing it into the record of this cause. This is mere conjecture, however, and we are not prepared to sanction the practice. If we could look at it, it would appear that the body of the note conformed with the figures and that the judgment followed it. We prefer, however, to discard it. The transcript should have been made and filed in this case below, to make it part of this record. We are reasonably well satisfied from the original transcript that the omission was a misprision. When the judgment was rendered it had not been decided that a note bearing more than statutory interest bore only 6 per cent after maturity unless the conventional interest be expressed to run after maturity.
It was very doubtful on principle when the judgment was rendered or when the note was paid. It would not do • at this late day to deprive an administrator of a credit for a payment made in good faith, with ten per cent,, continuing after maturity, by virtue of a subsequent decision of this .Court in another case. Such action, carried out in all cases, would be very disasterous in its consequences.
Upon consideration of its exceptions, we think the report subserves the purpose for which it was directed, and sufficiently advises us of the true equities of the case.. It shows a credit in favor of James of $18,795, being $3,371 ih excess of the amount allowed him by the Probate Court. .Even- were we to make deductions from his credits, as .given by the Master, of the excess claimed to have been allowed him improperly on the note of Bowe, Russell & Co., and also of the taxes paid on the home place during the widow’s occupancy, by any reasonable apportionment on .such data as we have, it would not materially diminish the allowance by the Probate Court.
We think, upon the whole case, that the Court below did not err in dismissing a case which, if prosecuted to the end, would have led to no results beneficial to the complainants.-
Upon the other hand there were things done by the administrator which courts of equity cannot sanction, whatever may have been his intent. Public policy requires their condemnation and discouragement. They invited litigation, and a long and expensive litigation has been necessary to disclose the fact that it should be fruitless. The complainants ought not to bear the burden of this.' The whole costs of the Court below, and of this Court, including the Master’s report, should be imposed upon James. We think it a mistake in the Court below not to have done that as a matter of manifest equity.
DIRECTIONS FOR FINAL DECREE.
Modify the decree of the Jefferson Circuit Court in Chancery so as to impose the whole costs of that Court upon the estate of James, and let it be in other respects affirmed. Let the whole costs of this Court be decreed against the same party, including an allowance to the Master, which the Court here fixes at the sum of two hundred and fifty dollars, as reasonable.
Smith, J.,differed from the majority of the Court as to the principles upon which the administrator’s account should be restated, and took no part in the subsequent proceedings, .but has filed no dissenting opinon.