1 Johns. Ch. 527 | New York Court of Chancery | 1815
The executors are called on to render an account of their trust; and they set up a claim to a commission of 5 per cent., as a compensation for their care and trouble in the management of the estate; and they, likewise, contend, that they ought not to account for interest on moneys belonging to the estate, and which they made use of for their private purposes.
I. The claim of an allowance has been pressed upon the court with much zeal, as if the denial of it would be extremely unjust, and as if this court was at liberty to deal with established rules just as it pleased. This very point was one that arose in the case of Green v. Winter ;
The Master of the Rolls, Sir Joseph Jekyll, disclaimed ' any discretionary power in the court, sometimes ignorantly imputed to it, to follow the private affections, or any arbitrary notions of abstract justice, instead of the established maxims of law and equity. Though proceedings in equity are said to be secundum discretionem boni viri, yet, when
Our business, then, as questions arise, is to discover what rule, if any, has been established by the courts in this state, and if none, then what was the existing rule in the English system of equity at the commencement of our revolution. And while engaged in this inquiry, we are not' to blind our eyes against human knowledge, but it is incumbent on us to examine the several authorities, whether they be ancient or modern, whether they be before or since the revolution, whether they be foreign or domestic, which may tend in any degree to ascertain, explain, or illustrate, the point under consideration. When we have been able to deduce from them, with sufficient precision, the true, genuine rule of equity, that rule becomes the law of the case, and the case, a precedent for the future,
The distinction attempted to he raised between a mere executor, and one partaking rather of the character of an agent or bailiff, is not applicable to the case. The distinction might, with equal or more propriety, have been made in
--— Miseree hoc lamen unum
Exequere—mihi.
It appears to be the practice in several of the United
The same rule was known in the early ages of the common law, and applied to the guardian in socage. He was entitled only to his allowance for his reasonable costs and expenses, when called to render an account of the guardianship of the estate of the ward. (Litt. sect. 123.) And this was the provision in the statute of Marlbridge, (52 H. III. c. 17.,) declaring the duties of the guardian in socage, salms ipsis custodibus rationabilibus misis suis.
2. As to the next point, whether the executors shall be charged with interest on the moneys which they admit to have been applied by them to their own use, and on which they had, at one time, admitted themselves to be chargeable with interest, there does not appear to me to be room for a question either on reason or authority. If the executor applies the moneys of the estate to his own use, he ought to pay interest, because he ought not to make a gain out of the estate; and it is his duty to manage it for the exclusive
I shall, accordingly, decree, that the defendants are not entitled to any commission, and that they must account for the interest which they have heretofore allowed to the estate; ana that, as they have undertaken, in favour of their own private claim, to litigate with the plaintiffs upon these two points, and which have been long settled in the law, it is just that they should do it at their own expense, and be chargeable with the costs of this suit; and this is the practice in such cases. (1 Bro. 359. 3 Bro. 433. 1 Ves. jun. 294. 4 Ves. 620.)
Decree accordingly, .
Ante, p. 26.
In Bond v. Hopkins, (1 Schoale & Lefroy, 428, 429.) Lord Rcdesdale observed, 11 There are certain principles on which courts of equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases, as they arise, by the principles on which former cases have been decided, anci
Miller v. Beverley, 4 Henning & Munf. Virg. Rep. 415—419. per Chancellor Taylor.