majority">

The opinion of the Court was delivered by

Willard, A. J.

The complainant, M. A. Fitzsimons, as legatee of her deceased brother, Bernard Fitzsimons, and as testamentary guardian of his infant child, co-legatee with herself, has brought'her bill against Pamela Fitzsimons, the widow and ad-ministratrix cum testamento annexo, of her brother, alleging the personal detention of her ward, and, also, actual and intended waste of the estate of her testator, and praying that her ward may be delivered into her personal custody, and'that the administratrix may account for such estate. The only aspect of the case before the Court, under the present appeal, relates to certain items disallowed on the accounting before the Master. The testator died in May, 1859, leaving a will, but naming no executor. Letters of administration cum testamento annexo, were issued to the defendant, and within a year thereafter this bill was filed. No question is made as to the bill being prematurely filed, nor as to the liability *412of the defendant to account. The estate that came into the hands of the administratrix was largely in excess of the indebtedness of the testator, but has become greatly impaired, owing, among other things, to the casualties of the war, and the balance is still retained in the hands of the administratrix.

The principal question in the case is, whether the unreasonable detention, by the administratrix, of the effects of the estate, subjects her to liability for that portion lost by inevitable accident.

The account was, originally, taken by the Master, as appears by his report, bearing date 2oth October, 1860, under an order made by the consent of the parties. From the date of this order, at the least, all parties were entitled to apply to the Court for such administrative orders as were requisite for the security of the fund, and for partial, or full, distribution, according to circumstances. It was subsequent to this period of time that the events happened through which the loss occurred. The plaintiff could have guarded against such losses by suitable orders. The defendant ought not to be placed in a worse position through the failure of complainant to make available her proper remedies.

Interest is allowed by way of damages for the unreasonable detention of moneys.

If the property is lost by inevitable accident, it may as well be traced to the failure of the complainant to make provision for its security, as to the act of the defendant in unreasonably retaining the effects of the estate beyond the period requisite for the payment of the debts of the estate. There is, therefore, no preponderance of equity calling upon the Court to shift the burden of such loss wholly upon the defendant. To apply this principle to the case in hand, it will be necessary to examine the items embraced in the grounds of appeal, constituting the exceptions to the account taken.

The first ground of appeal is general, bringing to view the exceptions to the Master’s report passed upon by the Chancellor; but as these exceptions are reiterated in the succeeding grounds, the matters embraced in the'first will arise for special consideration under such succeeding grounds of appeal.

The second ground demands, as against the administratrix, interest on annual balances from the 1st of January,4 861. As a general proposition, this is undoubted^ correct. The only question is, whether it is applicable to the case, and that will be best considered in connection with the sixth ground.

The third and fourth grounds claim that the defendant, in con*413sequence of her failure to surrender the estate on the 1st of January, 1861, has made herself liable for the value and wages of the negroes, and for the choses in action. As it regards the choses in action, it is to be presumed that, so far as the same were not rendered valueless by circumstances occurring during the period they were held by the administratrix, they have been accounted for. It would appear, from the Master’s report, dated April, 1868, that the choses referred to consisted of stocks that depreciated in the hands of the administratrix, a bond of R. W. Gale, and a credit for moneys deposited in the Palmetto Savings Institution. The bond and the deposit will receive separate consideration hereafter, leaving the question of the depreciation of the stocks to be considered with that of the loss of the negroes by emancipation. These losses must be regarded as inevitable, and fall within the rule above stated. As it regards the loss of the negroes, the complainant, having arrested the proceedings for their sale by her injunction, has no-just ground of complaint. It has been contended, however, that .the interruptions to the course of business in the Courts, occasioned by the war, prevented the complainant from obtaining the requisite orders. It is not in proof that she made any effort to obtain orders affecting the security of the property, and it is not to be assumed that administrative orders of that character could not be obtained. But, if it were otherwise, the consequences of an interruption in the business of the Courts would have to be borne where it might chance to fall, and is not the subject of relief of the character sought.

In regard to the claim to the wages of the slaves, the evidence is contradictory as to whether they were paid to the complainant; and it was peculiarly the province of the Chancellor to determine the question of superiority of weight to be accredited to this evidence.

The administratrix had no authority to collect the amount of Gale’s bond in Confederate currency. The money was not needed for the purpose of administration, and the mortgage securing the bond could not have been discharged otherwise than by payment, or tender in gold or silver, or the lawful currency of the United States. Accepting Confederate currency was an unnecessary act, that would have been regarded, at the time, in no other light than a sacrifice of at least a portion of the value of that asset, and actual loss has been realized therefrom. The fifth ground of appeal must, therefore, be allowed.

The sixth ground of appeal objects to the allowance of credit to *414the defendant for a deposit in the Palmetto Savings Institution, of the funds of the estate. This institution appears to have been in good standing until about the close of the war, when it became insolvent. It appears, by the account stated by the Master, that the administratrix was credited, March 2d, 1860, with a check for the amount then deposited in the Savings Institution. Whether any disposition was made of this check at the time, does not appear, nor does it appear that the plaintiff made any attempt to withdraw the deposit, or, indeed, objected to its security. It must, therefore, be considered that the deposit, if allowed to remain and to be increased by subsequent deposits, was at the risk of the complainant, so far as she had an interest in it, who could protect herself by the requisite orders. In the absence of proof to the contrary, it is to be assumed, that an amount equal, at least, to what ought to appear in the annual balances, was kept on deposit in the Savings Institution. Assuming such to be the case, and the complainant, on the principle of allowing a credit to the administratrix for the amount so deposited, is not entitled to an allowance of interest on the annual balances, independent of the interest accruing on the savings deposit. It does not appear that the administratrix received actual'payments by way of interest on the savings deposit; and it must be assumed, as the case stands, that the interest was, from time to time, credited by the bank in account, and that the accumulations of interest have been lost, with the rest of the deposit, by the failure of the institution. The complainant is not entitled, therefore, to the allowance of interest forming the subject of the second ground of appeal.

The seventh and eighth grounds of appeal are argumentative merely, tending to free the complainant from a charge of laches in permitting the defendant to continue in possession of the fund. The question involved is not one of laches, but of the complainant’s failure to use her proper remedies, previous to the loss of the property, disentitling her to throw that loss upon the defendant.

The ninth ground is general, and cannot be considered independently of a specification of the matters to which it relates.

All of the grounds of appeal, except the fifth, are disallowed, and the cause must be remanded to the Circuit Court, to ascertain the liability of the defendant in reference to the bond of R. W. Gale, upon the principles before set forth.

Moses, C. J., concurred,

Citation profile

How this case has been treated — in progress