This is a suit for an account instituted 24th April, 1848.
The account was filed 27 th November, 1848.
Plaintiffs, the heirs of Job Bass, opposed the account on the following grounds:
1st. “That for the year’s 1839, 1840, 1841, and 1842, the executor had in his hands, as will appear from the accounts of those years, about twenty thousand dollars, for which he allowed no interest, except for the year 1839.”
This claim of interest is based upon the Act of 1837, page 96, section 6.
The record shows that Chambliss rendered three accounts of his administration — the first on the 7th April, 1840, was homologated by judgment of court, on the 27th April, 1840, and showed a balance in favor of the estate of $20,396 26.
The second account was rendered on the 3d April, 1841, and was homologa-ted by judgment of the '14th April, 1841. This account showed a balance in favor of the estate of $12,247 40.
The third account of executorship was filed the 7th April, 1842. It showed a balance in favor of the estate of $6,636 58. A judgment of homologation of this third account was rendered on the 20th April, 1842, which does not appear to have been signed.
The amounts received at various times between the 10th January, 1840, and the 16th January, 1842, by Chambliss, as executor, as shown by those three accounts of administration, are in the aggregate $56,460. But it is not considered by us that any interest can properly be claimed from the executor therefor, except upon the balance shown by the last of the three accounts, to-wit: $6,636 58. The first- and second accounts have been homologated by judgments signed: and even there has been judgment of homologation rendered upon the third account, which has not been signed indeed, but that appears to have been through inadvertanee, for there was no opposition made to it, nor is it now pretended that there was any error in it Each account commences by crediting the estate with the balance shown by the preceding account; and the interest on the last balance only runs, under section 6 of the Act of 1837, from April 7, 1843, being one year after the filing of said account, by reason of *383the executor’s failure to file another account of administration as required by that section. The rate of interest under the statute would be ten per cent., but the plaintiffs only ask for eight per cent., which is accordingly allowed.
2d. The plaintiffs oppose the account, secondly, because the executor has not credited the estate in his account of 1840, with the interest on two notes collected, and which, it is alleged, bore interest from their date. There is an error of no importance in the date assigned by this objection to the account in which the collection of two notes said to be found. It is in reality the account of 1841, not that of 1840.
The items of that account alluded to, read as follows:
“ By amount received of Govey Hood, one thousand dollars, - $1,000 00
‘By amount of my note which was given to D. O. Barton, as dative
executor, three thousand dollars, ..... 8,000 00
The only evidence bearing upon this ground of opposition is found in the testimony of Govey Hood, who swears as follows: “ that he paid interest, at ten per cent., for two or three years from the maturity of the note until it was collected.” And in another part of his evidence, he says that he paid Cham-bliss as executor of Bass, interest on the note “from its date to its maturity, or from the time it was given until it was paid.” ¥e view this evidence as fixing the receipt of interest on the Govey Hood note upon Olicmíbliss. He is bound for that interest as cash received by him on the 7th April, 1840, amounting to $-, and this item must bear eight per cent, interest.
We charge Chambliss likewise as having received interest at ten per cent, on his own note on the 4th April, 1839, date of his receipt to the executrix of Barton, amounting to $-, and this item must bear interest as the other items of cash received and not accounted for.
We also charge defendant with a note of H. Prentice for $8000, and with interest at five per cent, on the same, as received by him on the-June, 1840. This item likewise to bear interest.
3d. The plaintiffs object, thirdly, that defendant has charged commissions, wrongfully, in the three accounts of 1840, 1841 and 1842, as well as in the account filed in 1848, upon moneys collected by him, instead of charging them upon the amount of the inventory that remained to be administered.
We think this obj ection unfounded. Plaintiffs further charge under this same head of their opposition that the defendant has charged certain commissions twice. This objection seems well taken. The amount thus charged twice in this account, is $1900 72.
4th. Plaintiffs object, fourthly, to a charge of $82, for commissions on a sum of $4000, said to have been collected, but which does not appear to have been collected. This objection is admitted to be correct.
5th. The fifth ground of opposition concerns a charge of $278 23 for overseeing, &c., which is admitted to be erroneous.
6th. The sixth ground is a double charge of fifty dollars for cost of a transcript. This objection is sustained, as well as that
7th. In ground seventh, being twenty dollars error of addition to prejudice of plaintiffs.
8th. The eighth ground of opposition relates to a charge of seventy-five dollars for three trips to Natchez and back, on business of the succession. There is no proof in support of this charge, which is therefore disallowed.
9th. The ninth ground of opposition alleges that an item of $92,734 55 to *384the credit of the estate for sales of negroes, &e., on Point Look-Out plantation, in April, 1848, is too little by $1000.
This item is only put down in the account as approximate. The correct amount of these sales is stated in amended account filed on the 18th May, 1852, to be $95,577 70. The difference on this item is therefore $2,843 21.
10th. The tenth ground "of opposition objects to a charge made by the executor of $5000, paid D. 8. Staey on the 8th May, 1838, which the opposition correctly states, was so paid, not by Ghambliss, the defendant and accountant, but by D. O. Bailón, his predecessor in the executorship. The opponents allege that defendant should not be allowed to credit himself with moneys paid by Barton, unless he likewise charges himself with the assets of the estate received by Barton, and not accounted for; and pray that the account be corrected by charging Ghambliss with the sum of $35,000, for moneys so received by Barton, and by giving Ghambliss credit for all sums paid by Barton for which the latter has not had credit in the account rendered by him to the late Probate Court.
It is in proof by an account of executorship filed by Bwi'ton on the 17th January, 1838, and homologated the 1st February, 1838, that the balance due by Barton to the estate of Bass at that date was $30,771 39. Ba/rton died the 4th January following, (1839). On the 4th February, 1839, Ghambliss qualified as dative testamentary executor of Bass, in place of Barton, deceased.
It was certainly Ohambliss’s duty to have used all legal means to make the balance above stated out of Barton's estate. Perhaps the reason he did not do so, was the fact that Barton's widow, who was one of Job Bass's heirs, and entitled to one ninth of his estate, entered into a contract of guaranty with Gha/mbliss, a few months after her husband’s death, by which she bound herself in the most unqualified manner, to save Ghambliss harmless for or on account of the balance due by her late husband to her father’s estate, and pledged her portion of the inheritance, by covenanting that Ghambliss might retain in his hands the share or portion of said estate coming to her, on account of the indebtedness of Barton to the estate. As Bass's estate, per inventory, was about two hundred thousand dollars in value, the proportion coming to this heir, Mrs. Bm'ton, might reasonably have seemed equal to the balance due by Mr. Ban-ton to the estate at the time of his death. For it is not proved that any moneys came into the hands of Barton after the rendition of his account homologated on the 1st February, 1838; and upon that balance, Barton had paid to Mr. Staey, as alleged in the ground of opposition under consideration, a sum of five thousand dollars ; in addition to further credits allowed Barton of four thousand dollars, by the judgment of the District Court, which are not complained of in this court, and still another credit of $3000, allowed by the present judgment for a note of Horace Prentice. The true balance, after making these allowances, due by the estate of Barton to the estate of Bass, is more particularly shown by the account incorporated in this opinion. We are of opinion that Ghambliss should be charged with this amount, and should have judgment, over against Mrs. Barton, called in warranty. But we do not think this portion of our judgment against the defendant should carry eight per cent, interest, as ordered by the judgment appealed from. This is -not money collected by the executor, and which he has failed to deposit in bank or account for. It does not therefore come within the provision of the Act of 1837, which is a highly penal statute, and should be strictly construed. It is even uncer*385tain how much, if any, of this balance due by Barton's estate will have to be disbursed by Chambliss's representatives; for although Chambliss rendered himself liable to make good Barton's deficit, yet it will be equitable and necessary, to stay execution of the portion of the judgment against his estate arising from this cause, until it be ascertained what is the precise sum coming to Mrs. Barton in settlement of her father’s estate — defendant being clearly entitled to a credit for that amount, under Mrs. Barton's warranty. The balance of Bcorton’s account of the executorship after giving credit for the amounts of the three notes of P. J. Chambliss, H. Prentioe and Corey Hood, and the Stacy receipt, in a debt due by the succession of Barton to the succession of Bass, and as such, bore interest at the rate of five per cent, from Barton's death, by the Article 989 of the Code of Practice. For this interest Chambliss is responsible upon the Barton balance, in their double capacity of surety of Barton, and of his successor of Barton in the executorship of Bass.
The very peculiar feature of this portion of the cause is that Chambliss must be viewed as having paid the amount for which he was responsible as surety of Barton to a person who was certainly entitled to some portion, if not the whole of the amount paid, as being one of the heirs of Bass; that person at the same time being bound by contract to hold Chambliss harmless from his said responsibility.
We are of opinion that the Barton balance of account of executorship, is entitled to the following credits:
Gash paid to Mr. Stacy, - - - - - $5,000 00
The following notes turned over by Barton’s executrix to
defendant, and by him collected — Covey Hood, $1,000 00
Chambliss, 3,000 00
H. Prentice, 3,000 00
■- 7,000 00
Total,.$12,000 00
Together with the interest collected by Chambliss, on those notes.
The eleventh ground of opposition is too vague and general to require any notice.
An amended opposition was filed on the 1st June, 1849, alleging that the defendant had not given credit for two drafts, one of $2,500, and one of $690, paid by Atchison. Annexed to this opposition is a statement signed by defendant. A comparison of this statement with the two accounts filed by defendant in April, 1842, and November, 1848, will show that all the drafts paid by Atchison, are included in one or the other of them, except that of $690, received the 5th April, 1842, with which the defendant must be charged.
This suit, after the account and oppositions filed, dragged along in the District Court until, in December, 1850, an agreement was entered into by the parties and put on file, by which the case was to be continued for another year, provided the administrators of defendant, (who had died in the meanwhile,) would pay $15,000 in cash, and as much more in city acceptances, ($30,000 in all,) on or before the 20th January, 1851. This was done.
On May 18th 1852, defendants, with leave of Court filed an amended account in which the only difference from the account filed at the begining of the suit by Chambliss was, the omission of several of the items objected to by the plaintiffs on the debit side (which have been already noticed in their proper place,) the insertion on the debit side of an item of $1200 for fees of Messrs. *386Bemiss and Bryan, for filing account and settling tlie succession, and the insertion on the credit side of the sums paid the heirs since the institution of the suit, being- $30,000 to Sparrow & Short, attorneys, and $556 60 to Benton, assignee.
The balance shown by this amended account to the credit of Bass's estate was $1,368 98.
Eight days after this amended account filed, the parties went to trial; and on the second day of the trial, viz: the 27th May, 1852, defendant’s counsel tendered still another amendment, composed of a few items, of which the only one that is necessary to notice is, a very obvious error of $1000, in computation of commissions of two and a half per cent, on the amount of Sheriff’s sales. The District Court properly allowed this amendment.
The fee of $1200 allowed Messrs, Bemiss & Bryan in the amended account of 18th May, 1852, was objected to, and properly rejected by the District Court.
An heir who after waiting for years, is obliged to sue an executor for an amount, ought not to pay the counsel employed to defend such a suit. It is to be supposed that he has had to employ counsel to prosecute the suit, whom he will have to pay. This is an expense which he has incurred through the fault of the executor, and we see no propriety in doubling that expense to him, by charging him with the fees of counsel who defend the suit.
Upon a review of the evidence and law of the case, we state this account as follows:
A.
*387Statement of Account with, Interest, R. J. Chambliss, Dative Testmnenlm'y Executor, with Succession of Job Bass.
*388Statement of Account with Interest, R. J. Chambliss, Dative Testamentary Moeeutor, with Succession of Job Bass.
*389B.
Statement of Account with Interest, D. 0. Barton, Dative Testamentary Executor with the Succession of Job Bass.
It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and it is further decreed, that there be judgment in favor of plaintiffs against the legal representatives of Robert J. Ghambliss, namely, Samuel L. Ghambliss, John 3. Martin and Mrs. Mary E. Martin, administrators of the succession of Robert J. Ghambliss, for the sum of $42,931 79 principal, with interest on $25,247 62 of said amount at the rate of eight per cent, from the first of January, eighteen hundred and fifty-one, until paid; and on $17,684 17 of said amount, at the rate of five per cent, from the fourth of January, eighteen hundred and thirty-nine, until paid; and that there be judgment in favor of the administrators of the said R. J. Ghambliss against W. M. Benton, in his capacity of executor of Mm'tha A. Bass, for the sum of $17,684 17, with interest at five per cent, per annum from the fourth of January, eighteen hundred and thirty-nine, until paid; that the plaintiffs be referred to a Notary Public or Parish Recorder, to be named by the District Judge of the parish of Carroll, for the purpose of making a partition and settlement of their respective rights as heirs of Job Bass, deceased; that execution be stayed upon $17,684 17, and the accruing interest on said sum as above, of the judgment herein rendered against the estate of Ghambliss, as well as upon the whole judgment against the estate of Martha A. Bass, until it shall have been ascertained by said notarial partition and settlement what is the amount of the rights of Martha A. Bass, as one of the heirs of Job Bass, her father; that the amount of said rights be credited upon the judgment stayed as aforesaid, and execution be issued thereupon for the surplus only, after crediting the amount of said rights. It is further decreed, that the costs of the court of the first instance be paid by the appellants, and those of the appeal by the appellee, and it is decreed lastly, that the sum of one hundred dollars *390be allowed to the auditor, W. O. Horner, by this court appointed, for his services herein, and that said sum be paid by the appellee.
Vookhies, J., Ogden, J., and Campbell, J., concurring.