The opinion of the court was delivered by
Bennett, J.There are sundry objections urged why the report of the auditors should not have been accepted by the court below, which it is our duty to consider. It has long been considered settled, that in case of three auditors, two may make report, provided that the other sit at the hearing, though he may dissent from the maj’ority. It is doubtless necessary that the report should show that all the auditors were present a.t the hearing, which the report in this case does show. The act of the major part will be conclusive, and will be regarded as the act of the whole, provided all participated in the deliberations. Grindley v. Barker, 1 Bos. & Pul. 235. Thompson v. Arms, 3 Vt. R. 546.
It is no objection that the auditors allowed certain items in the account that existed previous to the settlement in 1820, provided those items were not included in the settlement,- and this is altogether a matter of fact for the auditors to pass upon, and their finding, in this respect, is conclusive upon the parties. As to the charge of $240 on the plaintiff’s account, the auditors find that certain services were rendered for the defendant at the request of Col. Keith in his life time, and that request renewed by the widow after his decease, under an assurance from her that he should be well paid, and that the plaintiff performed the services relying upon her promise to pay him; and that the services performed were well worth $15 per year. The auditors are the proper board to find the facts, and from the facts reported there can be no doubt *219as to the legality of this claim. There can be no pretence that the services were rendered from motives of friendship, and gratuitously, or that it was so understood by either of the parties. That no charges were made till after Mrs. Keith’s death', and then a gross charge, were facts for the consideration of the auditors, and unless satisfactorily explained and rebutted, would go far to satisfy the auditors that whatever services were rendered were in fact gratuitous, and no charge, in the time of it, intended to be made. . It can constitute no valid legal objection, that a charge is made in gross, but it is matter for the consideration of the auditors, and should call into exercise a suitable degree of caution in the examination and allowance of such charges. See the case of Evarts v. Nason’s estate, ante 122.
The statute of limitations was not insisted on before the auditors, and cannot, of course, upon the return of the report, be urged as an objection to its acceptance. By the will of Mrs. Keith, she gives to plaintiff and his wife, “to each fifty dollars as a token of friendship and remembrance.” This, it is argued, is to be taken as a satisfaction' of the claim. It is said, this strict rule is established, that a legacy given by a debtor to his creditor, which is equal to, or greater than the debt, shall be presumed to be intended in satisfaction of the debt. See 1 P. Wms. R. 410, and authorities in the note to that case. This has been considered an arbitrary rule, and has created much dissatisfaction, and every circumstance in a will has been laid hold of to rebut the presumption; as where the payment of the testator’s debts are particularly mentioned in the will, or where the legacy is not so beneficial in some particular., though it may be more so in others. In the present case, the legacy is given as a token of the testatrix’ friendship, and is much less than the debt which the auditors have found due from her. There can be no possible ground to suppose Ihis legacy was intended to be in satisfaction of this claim, but quite the reverse. “ It was,” as the will declares, “a-token of friendship.”
We think that interest should be allowed on the plaintiff’s account, only from the decease of Mrs. Keith. Interest is generally allowed by our law on the ground of some contract expressed or implied; but there are cases where it is allowed as damages for the breach of some contract, or the viola*220tion of some duty. In this case there was no time "agreed upon for the payment of the plaintiffs services, and no charge, in point of fact, made or presented to Mrs. Keith in her life time. Inasmuch as, from aught that appears, the delay of payment in the life time of Mrs. Keith proceeded from the voluntary act of the plaintiff, and the claim was permitted to lie dormant for such a length of time, we think it unreasonable that interest should be added to this amount, so long as the delay was the fault of the plaintiff. After the death of Mrs. Keith the plaintiff was necessarily subject to the delay ordinarily attending the settlement of estates, and from the principles established in this state, we think interest should be allowed from that time. Cbitty on Con. page 505. Selleck v. French, 2 Conn. R. 32. The judgment below must, then, for this cause, be reversed, and judgment rendered on the report for the amount of the plaintifl’s account, as allowed by the auditors, allowing interest only from the death of the testatrix.