¶1concurring, April 23, 1900:
¶2While concurring with the judgment of the court in reversing the court below as to the allowance of interest, I would go further and sustain the specifications of error as to the basis upon which the court below ascertained the value of the improvements for which Peter Sutton, the accountant, was allowed credit. When Peter Sutton, as executor, undertook to deal withi the contract which the estate held against him as an individual,, he was bound, as against these appellants, to the exercise of the-utmost good faith. Under the terms of the agreement which he had entered into with his father, the estate had several remedies, any one of which it was at liberty to pursue; it might have brought suit against Peter Sutton for the purchase money; *501it might, under the terms of the agreement, have caused a judgment to have been entered against Peter Sutton'by confession, in the sum of $5,000, as authorized by the agreement; or it might, under the terms of the agreement, have re-entered and taken possession of the land, paying Peter Sutton for his improvements. The heirs who were of age joined with Peter Sutton in an agreement that the contract of their father should be canceled, and that all the parties to the said agreement of cancelation should take possession of the land : some of the appellants were at that time minors, did not join in this agreement of cancelation, and are not bound by it. The court below treated this as an entry upon the lands by the executor as representing the estate, and proceeded to value the improvements for which the estate was to pay Peter Sutton individually upon the basis of the cost of those improvements to Peter Sutton, and not of the value of the improvements to the land. If Peter Sutton was entitled to compensation for these improvements, that compensation ought to be regulated and determined by the increased value of the land because of the improvements, and was not dependent upon, nor to be increased by, his extravagant and unwise expenditures, which neither benefited the land nor the estate.
¶3A motion for reargument was subsequently refused in the following opinion.
¶4Opinion sur petition for reargument.
¶5Opinion bt
¶6May 24, 1900 :
¶7The motion for reargument is based upon the allegations that in our former opinion we omitted to give consideration to the fact that Peter Sutton had been surcharged with interest on his debt to the estate and its bearing upon the claim for interest, to which we have held he was unentitled, on his claim against the estate for improvements to the farm. These matters received due consideration. The omission of any discussion of them in the opinion filed was not accidental.
¶8From the order of the court below surcharging the debt of $1,200 and interest no appeal was taken. Peter Sutton there*502fore cannot now contend that the surcharge was illegal or improper. He now says however that having been so surcharged it is inconsistent to hold that he is not entitled to the interest to which we have found him unentitled. The two matters have not the same status before us. The liability to pay interest was determined by the court below. The right to receive interest has been denied by us. It may or may not be that in charging him with interest the court below was moved by its conclusion that he was entitled to receive as well as to pay interest. The liability of an estate to pay interest to an executor, and its right to receive interest from him are not determined by the same considerations. The reasons for our denial of the right to receive interest have been heretofore expressed. They have no reference to his liability to pay interest determined by the court below in a ruling to which no objection is made.
¶9The petition for reargument is denied.