The Chancellor. I think the surrogate was right in supposing that the acting executor ought not to be charged with interest, on the amount duo to the appellant as one of the residuary legatees.^ The whole of the estate which came to the hands *89of the acting executor, including the $3000 which one of the daughters received in the farm at a valuation, was something more than $18,000; of which each residuary legatee was entitled to receive less than $500, after the whole estate should have been collected and converted into money so as to be properly distributable among them. Within about one year after the granting of letters testamentary, the acting executor had so far succeeded, in executing his trust, as to be able to make a distribution of $250 of the residuary estate to each legatee. He thereupon paid that amount to each of the other legatees, and tendered the same amount to the appellant; who for some reason, which he does not explain, refused to receive it, until the whole residue should be ascertained and paid. This offer to pay more than half of the appellant’s residuary share was immediately after the expiration of the year, during which the executor was forbidden by law to pay even the general legacies. (2 H. /S'. 90, § 43.) And it was about six months previous to the time when the appellant was authorized to ask for an account and distribution of the residuary estate. The appellant therefore had no ground,for declining to receive this part of his distributive share because the executor did not then render a final account and pay him in full. About ten months after this offer was made, the acting executor had succeeded in getting in the whole estate; and he then made a statement of his accounts, and paid the balances due to the other five residuary legatees, in full. He was also prepared to pay off the whole residuary share of the appellant, and repeatedly sent word to him to that effect, by his brother; who was also an executor to whom letters testamentary were granted. To be sure, that brother does not recollect that he gave that information to the appellant. But if either executor was bound to go to the appellant and give him this information, he should have communicated the message to his brother; or he should have informed the acting executor that he had not done so, and that the appellant was ignorant of the fact that a final dividend had been made to the residuary legatees.
I do not, however, believe that the appellant was ignorant of *90that fact; as the parties all appear to have lived in the same neighborhood. And as the legatee was an adult, and perfectly competent to attend to his own rights, I do not think it was the duty of the acting executor to go to him and make a formal tender of the money; especially after what had occurred in relation to the $250. If the distributive share had belonged to an infant, who was ignorant of his rights, or incompetent to attend to them, there might be some reason for charging the executor with interest,' upon money 'which he had kept in his hands for a great length of time without investment; and without applying to the proper tribunal for directions in relation to the fund. But, in this case, the executor had no right to invest the residuary share of the appellant, who was at hand and might call upon him for payment of it at any moment. And if he had so invested it, the investment would have been at the risk of the executor; who might have been compelled to pay the. money immediately, even if it had been invested in thé best of securities. None Of the cases cited, where executors have been charged with interest for neglecting to invest moneys, or for keeping them on hand, contrary to their duties as faithful trustees of the fund, are therefore applicable to this case. Nor is there a particle of proof here to.induce a belief that the executor had mingled the- trust fund with his own moneys, or used it in any way, so as to make it produce any interest. And when the appellant examined him Oil oath before the surrogate, and might have compelled him to disclose the fact if it was so, he objected to any answer from-the executor to show that the fact was otherwise. There is no doubtj therefore, that if this residuary legatee had gone to the acting executor, at any time after the 4th of May, 1833, and asked for his distributive share of his father’s estate, or had sent to him by any other person, authorized to receive it, he could have had his money at once. And if he had done so, and had even insisted upon his one sixth of the small amount claimed as an Over payment to his sister-in-law, the executor would probably have paid that also; and the whole expense of the final accounting before the surrogate would have been avoided.
*91In relation to that item, the executor unquestionably acted in good faith, believing it was proper for him to pay it; as thr testator had been in the habit of making the widow of his deceased son a periodical allowance of that amount. But the payment was in fact unauthorized; as the legacy given by the will Was all she was entitled to receive, as a bounty merely, after the testator’s death. And as no timé was fixed ny the will for the payment of her legacy, it could not draw interest until the expiration of one year; when it was legally due, under the provision of the revised statutes before referred to.
Neither was the executor entitled to charge the estate with a counsel fee upon the final settlement of his account before the surrogate, or for drawing up his accounts in a proper and legal form on such final settlement. The whole was a part of the proceeding for the settlement of the account of the executor. And the statute having fixed the allowances which are to be made to advocates and proctors in surrogates’ courts, when they are to be paid as costs in the suit, either by the adverse party or out of the fund in litigation, the Surrogate is not authorized to make an arbitrary allowance to the executor in lieu thereof. {Laws of 1837, p. 536, § 70. Halsey v. Van Amringe, 6 Paige's Rep. 12.) Here the surrogate had the power to award costs to the executor, to be paid out of the estate of the testator; or by Burtis personally, if he thought this final accounting had been rendered necessary by his perverseness. (2 R. S. 223, § 10.) He has not thought proper to do so in this ease, except to the extent of his own fees; which he has awarded against Burtis personally, by deducting them from the balance found due to him upon the accounting. , If it was a proper case to allow the executor for the expenses of his proctor and advocate, upon the accounting, the surrogate should have taxed their costs at the rates of allowance fixed by the act of 1837. And when so taxed he should have deducted the whole amount, or the one sixth thereof only, from the balance found due to Burtis upon the accounting; according as he should have intended to charge the costs upon Burtis personally, or on the estate of the testator generally. The one sixth of these two items, objected to in the petition of appeal, *92amounting together to the sum of $12,08, must be added to the $548,36, ascertained by the surrogate’s decree as the distributive share of the appellant.
The surrogate, however, has made a much greater mistake in favor of the appellant. For, instead óf allowing him only one sixth of the executor’s over-charge for commissions, and of the $50 contingently retained to meet further expenses, he has allowed the appellant the whole of those two items. This was unquestionably an inadvertence on the part of the surrogate; arid if the appellant had been contented with the decree as it stood he would have had the benefit of it, unless the executor had thought proper to hazard the costs of an appeal for so small an amount. But the executor had the right, under the provisions of the 118th rule, to bring it before this court, by his answer to the petition of appeal. The error in relation to those two items must therefore also be corrected; although the effect of such allowance will be to reduce the amount awarded to the appejlant. Deducting five sixths of these two items, which is $66,67, from the sum decreed to the appellant by the surrogate, and adding to the balance the $12,08, for the one sixth of the counsel fee and of the overpayment to the testator’s daughter in law, leaves due to the appellant $482,26. The decree of the surrogate must therefore be modified so as to direct the executor to pay that amount only.
And as the appellant has in effect wholly failed as to his appeal, he must pay the respondent’s costs upon such appeal.