beneficial to the estate, especially for the payment of debts. The intestate here was largely indebted, to an amount greatly exceeding the price of his lands in Alabama and the balance of the* Alabama property, after payment of debts, was received in cash by the S. 0. administrators. It would not be straining to take either of two views, that the price of the Alabama lands was absorbed in payment of debts of intestate, or that the whole estate should be distributed according to the law of the domicil. Very intricate questions underlie the state of facts, but without discussing them, I adjudge this claim to be invalid.

4. Robert Cunningham, father of .John S., made a will of which John S. was executor, and thereby inter alia bequeathed the sum of ten thousand dollars to a posthumous son Robert J. This fund remained in the hands of John S., for many years, until May 1, 1854, when his administrators paid to the guardian of said Robert J., the principal sum of ten thousand dollars and as simple interest for seventeen years and four months the sum of twelve thousand one hundred and thirty-three dollars and thirty-three cents, after deducting payments made by said John S., and his administrators, to the sum of three thousand one hundred and twenty-three dollars' and sixty-five cents, and upon which as the payments were insufficient to extinguish the interest accrued, neither interest nor commissions were allowed. The calculation was made by commissioner Witherspoon. It is supposed that the administrators have not satisfied this legacy in full, and that they may be liable to pay interest at annual rests. Eo proof is offered that the trustee made for himself more than simple interest from this fund; indeed it is not shown how he employed it. I see no reason why more than simple interest should be allowed; and the attempt to disturb this settlement s overruled.

It is ordered that it be referred to the Commissioner of this Court for Kershaw to state the accounts between the parties on the principles of this opinion.'

The complainant appealed on the grounds:

1. Because his Honor erred in holding that complainant’s claim to the one thousand six hundred and seventy dollars and five cents was res judicata; and that his intestate had waived her right to the same, by omitting to litigate it in the proceedings she instituted for partition of her deceased husband, J. S. Cunningham’s estate.

2. Because his Honor erred in holding that complainant’s claim to the one thousand six hundred and seventy dollars and five cents, was barred by the statute of limitations.

The defendants, administrators of John S. Cunningham, also appealed from so much of the circuit decree as relates to the interest calculation, on settlement with guardian of Robert J. Cunningham.

The defendants, Thos. J. McDow and wife, also appealed from so much of the circuit decree as allows to complainant, as administrator of Mary Cunningham, deceased, the interest of one-third in the Alabama lands, on the grounds:—

1. That, in no event was she entitled to more than one-sixth, and that under requisites never complied with.

2. That- the proceeds of the sale of the lands were not applicable primarily to the payment of debts.

cited ex parte Geddes, 4 Rich. Eq. 801; Wardlaiu vs. Gray, 2 Hill, Ch. 644; Yeldel vs. Quarles Dud. Eq. 55; ex parte Mobley, 2 Rich. Eq. 56; Daniel vs. Daniel, 2 Rich. Eq. 115; Broom L. Max. 242; 2 Stat. 584 ; 5 Stat. 112; McQueen vs.'Fletcher, 4 Rich. Eq. 152; Smith vs. Smith, McM. Eq. 126; Moses vs. Jones, 2 K. & McO. 259; Lawton vs. Bowman, 2 Strob. 190.

cited Warley vs. Warley, Bail. Eq. 398, 409; Pell vs. Ball, Speer, Eq. 519; Laurens ■vs. Magrath, 1 Rich. Eq. 296.