The appellees, claiming as children and legatees of John Anderson, together with their deceased mother the widow, obtained a decree against William Anderson, the executor of the decedent, in the County Court of Buckingham fox 1876 dollars 96 cents, with interest thereon from 1st of January 1830. The decree was a joint one in favour of the legatees and widow. On this
The testator by his will, after directing his debts to be first paid, desires that his lots on which he had built, (the rents for which are charged to the executor in the account aforesaid,) should, at the discretion of his executors, be sold, leased, or rented, to do the best for the benefit of his children.
In the account exhibited with the bill, the charges to the executor for the personal estate, the debts collected, the hires of negroes, and the rents and the credits for debts paid, and supplies to the family, and disbursements for the children, are promiscuously entered. If the balance shewed by the account, is to be referred to such of the charges to him as properly belong to his administration of the personal estate, then his sureties are unquestionably responsible for it. If it be referred to the charges to him for the receipt of rents of real estate, it is equally clear that his sureties are not responsible.
The question then is, to which of these responsibilities ought the balance of the account in question to be
The executor held the personal estate for the payment of debts, and he was under no obligation to apply it to the use of the legatees while the debts remained unpaid ,• and even when all the known debts were paid, the legatees had no right to demand of him the surplus, or the application of it, to their use, without giving him a refunding bond. As to the rents and profits, though they might in equity have been charged with debts, to the payment of which the personal estate might prove inadequate, yet until the claim to charge them should be asserted by suit of the creditors, the heirs or devisees were entitled to them, without being accountable therefor to the creditors; and the executor receiving them was trustee of, and bound to account for them to, the heirs and devisees. These characteristics of the two funds, I think, clearly indicate the manner in which the accounts should be stated to ascertain the separate responsibilities of the executor for each. In the account to shew the balance on account of the rents and profits of the real estate, these being brought to the debit of the executor, he should have credit for the disbursements on account of the real estate, to wit, for taxes, repairs, improvements, &c.; and for supplies to the family, the schooling, and other expenses of the children. If on the account so stated, a balance should appear against the executor, the aggregate balance on the general and promiscuous account, would, pro tanto, be regarded as resulting from, and referrible to, the responsibility for the rents and profits; and only the residue of that aggregate balance be treated as resulting from the administration of the personal estate. If there be no balance
If the account in this case shewed that the credits which are given therein to the executor for the disbursements for the real estate, supplies to the family, <fcc., aforesaid, were more than equal to the charges to him for rents and profits of the real estate, I should not hesitate, to regard the balance of the said general account as resulting from the administration of the personal estate, for which his sureties are responsible. But unfortunately, that account, though it is shewn by specifications on its face, that the executor has taken credit for a considerable amount of such disbursements, and though I think it highly probable that many of the credits to the executor, the nature of which are not specified, were for such disbursements, which added to those having such specification, exceed the amount of the charges to him for the rents and profits of the real estate, yet the account does not shew it, and I do not think that I can, or that the Court below could properly proceed on a conjecture of a fact, when the obvious course of an enquiry before a commissioner might supply certainty for conjecture. The credits on the account to the executor, that certainly appear to be for the disbursements, &c., though they do not equal the charges for rents and profits, yet being set oif against such rents and profits,
As to the question of jurisdiction, my opinion is, that the objection to it ought not to prevail. Apart from the consideration that a Court of Equity has jurisdiction to entertain a bill to give effect to a decree of a Court of Equity, and especially in a case where the obligation to give a refunding bond is a preliminary to the relief sought, in this case the decree not being conclusively binding, and the defendants being entitled to surcharge the account on which it was rendered, or demand a new one, and the account exhibited being one which on its face entitled the defendants to such account; and as the result shews, a new enquiry into, and investigation of the accounts is necessary, the jurisdiction of the Court is sufficiently vindicated.
As to the objection to the manner in which the interest is charged and brought into the account, my opinion is, that it is at least doubtful, if regard be had to the amount of interest charged, whether if the accounts were properly separated, and the administration of the personal estate stated on the principles of Burwell v. Anderson, a larger balance would not be found due than was decreed in the suit against the executor. But however this may be, I think that the appellees by their claim, and the defendant by his answer, have waived that objection. I am therefore of opinion, that while it is ne
Cabell, P. and Brooke and Allen, J. concurred in IStanarcl’s opinion.