star-pagination">*Page 515 exceptions taken by them to the account reported from the probate court are disallowed. To these attention will now be directed.

Exception 1. For that the sum of $100 paid to A. McLean and endorsed by his receipt (voucher 17) is improperly allowed: This payment was made for taking and reporting an account in a suit instituted in 1857 in the county court by the defendant and Mary Smith against J. C. Smith, administrator of W. T. Smith for a settlement of the intestate's estate in which more than $12,000 was claimed to be due. The answer admitted a liability for a large amount. The cause was continued till 1867 and then dismissed at the plaintiffs' costs. During its progress the defendant collected about $3,600. The docket shows an order of reference to A. McLean to take the account, but no report is found and no order of the court making an allowance to the referee or directing any payment therefor [therefore] is entered in the cause. The defendant testifies that the account was taken and reported, but after diligent search cannot be found. The demand for the service rendered was made on him by the referee and paid, and he thinks this was in consequence of an order of the court, though not put in the record. There is no suggestion of bad faith in the transaction, nor of interest or influence to pay a demand which is not due and just, and after the long interval which has since elapsed, covering the confusion and disorders of the civil war and the displacement and loss of judicial records and proceedings, the payment should be assumed to be correct, and was properly allowed. C. C. P., § 480; Drake v. Drake, 82 N.C. 443. Nor is the charge excessive. Washington v. Emery, 4 Jones Eq., 32.

Exc. 2. For that $10.25 (voucher 76) was improperly paid to J. C. Callahan, clerk: The costs were incurred in prosecuting an action against Thomas S. Lutterloh to recover $494 due from him to the wards in 1869. Lutterloh is *Page 516 shown to have been solvent, but the guardian was informed by parties interested in the fund that the debt was doubtful and advised by them to accept certain notes, unquestionably good, offered by Lutterloh in place of his own. The exchange was accordingly made, and the substituted notes have mostly been paid since, and the whole amount is charged against the defendant in the account. As the subject matter of the suit was thus adjusted the suit could not be maintained, and the costs falling on the guardian were rightfully paid by him.

Exc. 3. For that the defendant is not entitled to commissions; and if to any, the allowance is excessive: This exception is sustained by the judge as to so much of the commissions as are allowed on disbursements made after the wards became of full age, and in this ruling we concur. The management of the estate has been conducted over a long series of years and through a period requiring the exercise of great care and diligence, and in our opinion with unusual success. It would be neither equitable nor just to deprive him of all compensation for his services because of his omission to keep and render regular accounts of his administration, when no imputations are cast upon his integrity by reason of the neglect. Nearly all the information upon which the charges against him are founded was obtained from his own testimony delivered upon a long, minute and elaborately exhaustive examination, and with no apparent disposition to withhold anything he knew favorable or unfavorable to himself. On information thus obtained the complaint was itself amended. "It is only in case of fraud or very culpable neglect," says RODMAN, J., in Whitford v.Foy, 65 N.C. 265, "that a trustee will be punished by being deprived of his commissions.

Exc. 4. The allowance of the charge for board paid for the plaintiff, Campbell, has already been disposed of in the other appeal. *Page 517

Exc. 5. The claim of the defendant to have a credit for the scaled value of the surplus confederate money in his hands and lost, is also considered and passed on as far as the facts disclosed in the case will permit in the defendant's appeal, and needs no further comment here. The same order for remanding must also be made in this case to the end that the accounts may be reformed and corrected in accordance with the opinion of this court.

Error. Modified and remanded.

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