Green, Judge,
announced the opinion of the Court:
The only difficult questions really involved in this record are: Wliat are the principles involved in the settlement of an executorial account and their application to the facts and circumstances appearing in this cause ? And these are the only questions, which have been argued in this cause in this Court. It is true, the answer of the executor' sets up two objections to the consideration of the cause by the circuit court. The first is, that there was then pending in that court another suit brought by George Piercy executor or John Piercy sr., in which there had been a decree for the settlement of his executorial account; and such an account had in that cause been settled by a commissioner of the court [322]*322and reported to tlie court, and no action bad been taken by the court thereon. This objection was not presented in a proper form. The pending of such prior suit should be presented by a plea or motion to dismiss as a preliminary question. As an incident among other matters in an answer on the merits it will not avail. When the defence is duly made and established, the court will dismiss the bill; or if the prior suit be in his court and defective, he may order a dismissal of that and permit the plaintiff to proceed on his new bill. Cooper’s Equity 278. Walford’s Pleadings 199.
In this case this Court cannot tell, whether the first writ was defective, as the whole of the record is not before us; but it is highly probable it was, as during the war all of the papers in it had been lost or mislaid, and though they were subsequently found, it is very probable that many of them were no longer in the bundle; and this is rendered the more probable by the fact, that Commissioner Harlow’s report in this first cause settling then the accounts of the executor of John Piercy sr., was made in October, 1860, and wlien this same suit was brought in March, 1878, more than seventeen years after, no action had been made on this report, and no order had been made in that cause for nearly eighteen years. It had been liable to be dismissed on motion after more than ten years; and the probability is that it had not been dismissed, because, as alleged in the bill, it had been abandoned. And this is rendered still more probable as the main object of that suit was to separate the estate of John Piercy sr. from that claimed by his widow Mary as her separate property, and this had been rendered no longer necessary as all persons interested in her estate had agreed that her estate should be distributed by the executor of her husband as though it was his estate, except as to a certain sum directed to be paid to an omitted grandchild in the will of John Piercy sr. The first decree rendered in this cause directed Commissioner McWhorten to reform the report made by Commissioner Harlow in the first cause; and thus the labor, which had been spent on the first suit and its costs, were utilized, so far as they could be, in this cause. Eor these reasons it is obvious, that this cause was properly retained and acted upon by the circuit court, the pendency of the [323]*323prior suit not liaving been presented in the proper form; and even Rad it been, the court under tbe circumstances ought not for this reason to Rave dismissed this cause.
Again it was objected, that the bill in this cause was multifarious asking for tbe settlement not only of tbe accounts of George Piercy as executor of John Piercy sr., but also as' executor de son tort of bis widow, Mary Piercy. There was nothing in this objection. The paper signed and sealed by George Piercy as well as all other persons interested in tbe estate of Mary Piercy filed with tbe bill proved despite tbe denial of George Piercy in bis answer, that be was executor de son tort of Mary Piercy, and by this paper with tbe exception of one thousand dollars to be paid Mary E. Beckett bis entire estate was to be distributed to tbe same persons and in tbe same manner as tbe estate of John Percy sr. It was therefore obvious, that it was proper, that in this cause George Piercy should not only settle bis accounts as executor of John Piercy sr., but also his accounts as executor de son tort of Mary Piercy, tbe parties interested in each estate being the same, and tbe two estates, as tbe record shows, being so intermingled as to render it difficult to separate them accurately. In truth tbe separation of them was tbe principal object of tbe first suit instituted by George Piercy as executor of John Piercy sr. This separation accurately afterwards became comparatively unimportant, when those interested in her estate agreed, that it should be distributed among tbe same persons as tbe estate of John Piercy with a specified exception and be treated in fact as a part of bis estate and administered by tbe executor of John Piercy sr. This itself would have prevented tbe pendency of this suit, formerly brought by George Piercy as executor of John Piercy sr., from being a sufficient ground for the abatement of the present suit, brought by legatees of John Piercy sr. against George Piercy, bis executor, even if this objection bad been presented in proper form. Eor tbe main object of the first suit was for entirely different object from that of tbe second suit, and they could not properly be said to be for tbe same cause of action, and they did not really get tbe same relief.
It remains on tbe merits of this case to determine tbe [324]*324principle, on which an executor’s account should he settled. And first, with what debts should he cliai'ged, and for what payments made by him should he he allowed credit? The general rule is, that he should he charged with all the assets of his testator, which either actually come into his hands and are collected or converted, and also with all the assets of his testator, which would come into his hands, and with all debts, which by the use of diligencie he ought to collect. The executor should be charged with debts collected, not when they become due, or when they could have been collected by reasonable diligence, but only at the time he actually receives them. Burnley’s adm’r v. Duke &c., 1 Rand. 313. The executor is regarded as having converted the assets, when he exchanges a debt due his testator for some other debt due to the debtor; and he should therefore be charged with such debt so exchanged, whether it were a good debt or not. See 2 Lomax on Executors' 295; Bass v. Chambers, 9 La. Ann. 376. If when he settles his account, he has not received a debt, and it appears, that it has been lost through his negligence or want of proper diligence, he should be charged with such debt as of the time, when he ought to have received it, had he used due diligence. The mere want of proper diligence on his part or his negligence does not make debts due his testator the property of the executor, and therefore, if when he settles his accounts, lie can show, that a particular debt included in the inventory and not returned as worthless or doubtful was nevertheless a debt, which could not have been collected by the use of diligence either because of the actual insolvency of the debtor, or because he had a substantial defense, or because though when the inventory was made the debt was believed to be due, yet if it turns out, that it was not actually due,- he ought not to be charged with such debt. Eor it remained the debt of his testator, though the administrator was negligent in not attempting its collection or in not bringing suit upon it with the promptness, which he ought to have exercised. See Cavendish v. Fleming, 3 Munf. 198; Reitz Co. v. Bennett et als.; 6 W. Va. 417.
When however a debt is returned in an inventory of an executor without its being noted as either worthless or doubtful, it will be presumed, when he settles his accounts, [325]*325after ample time lias elapsed for Mm to have collected such debt, that he has in fact collected it in full; and he should be charged with such debt as if collected at such reasonable time, as it ought to have been collected in. See Dillard v. Tomlinson, 1 Munf. 183. In such case, as the assets are traced to his hands, it devolves upon him to show, that they have not been collected, and why they have not been collected, and not upon the legatees to establish misconduct or negligence on his part. Graham v. Davidson, 2 Dev. & B. (N. C.) Eq. 155; Hickman v. Thornburg, 3 Bush. 205; Lawson v. Copeland, 2 Bro. 156; Estill & Eakle, v. McClintic, 11 W. Va. 416.
Although I have seen no decided case so holding, yet upon principle, according to the rule, that when a debt has not been lost through the negligence of an executor, he should not be charged with it, if it has not been actually received, or until'it is actually received, it seems to me, there should-be an exception, when it appears, that a debt due the estate is good, and for a long time has remained uncollected through the gross negligence of the administrator, and no reason can be assigned, why he has not collected the same. The court might properly under some circumstances in the settlement charge him with such debt, as though he had collected it, leaving him to reimburse himself out of the debt when collected; but this would under any circumstances be done, not because the gross negligence of the executor in instituting suit to collect such debt would cause this debt to bo regarded as converted assets, after the the time had elapsed, in which it should have been collected, but because as executor he is responsible as for a wrong done, when he failed to collect such a debt through gross negligence. And this being the basis of his responsibility in such case, it is obvious, when the debt is still good and has not been lost by negligence, the executor should not be charged with it, before it is actually collected, provided he has any reasonable excuse for the delay; and as no real loss has been sustained by the estate, this indulgence of a debtor, who wTas and remains good, should not be a ground for charging the executor with the debt under any circumstances, unless it has been continued for a very unreasonable time uncollected, and mi-[326]*326less Ms failure to collect the debt is gross and inexcusable negligence. "Where this gross and inexcusable negligence exists, though the debt be not thereby lost, it seems to me, the debt may properly under some circumstances after the lapse of a long time be charged to the executor, as if he had collected it; but an executor ought reasonably to be allowed a large discretion in the management of an estate as to the time, when he should collect perfectly good debts ; and he should be but rarely held to responsibility for such indulgence, unless thereby the debt is lost. By such unreasonable indulgence he becomes responsible for the debt; but ho ought not except in extreme cases to be charged with the debt till collected, unless it has been actually lost by such negligence. These views seem to be substantially the’ views taken by the court in Davis v. Newman, 2 Rob. 674, 675.
It may be regarded as settled law in this State and Virginia, that in settling an executorial account proper an executor ought not to be charged with interest from the day of each receipt of money; for he might not be able to pay it out to a creditor or legatee on the day he receives it, or the payment might be suspended by disputes among creditors. The accounts ought to'be closed at the end of each year, and interest allowed on the balance due at the end of each year, till the whole transaction is closed. Such interest is not carried to the account of the succeeding year as is done in an account between debtor and creditor, so as to apply the interest to the payments made during the succeeding year. In executorial accounts both here and in Virginia the payments are applied to the discharge of principal and not of interest, so long as any principal is due; and the interest is brought into the account only at the close of the transaction. See Granberry v. Granberry 1 Wash. 246; Sheppard v. Starke, 3 Munf. 29; Burwell v. Anderson, 3 Leigh 362. While this is the general rule for settling an executor’s account, it is not an invariable one; but there is in this case no necessity to point out the exceptions to *-it, as they are inapplicable to the case under consideration. These rules for the settlement of an executorial account are continued, till there has been a reasonable time allowed for the payment of the debts of the estate, when the executorial account proper should be closed, [327]*327and tlie balance -then due from the executor should be charged against him as a borrower; and until the distribution of the estate from that time the account between him and the residuary legatees should be adjusted asan account between debtor and creditor. See Handley v. Snodgrass, 9 Leigh 430; Garret v. Carr, 3 Leigh 416.
The Code of Virginia ch. 130 § 17 p. 597 provided, that an executor should not sell slaves, unless the rest of his personal estate, other than privileged legacies, was insufficient. And hence an executor could not be responsible for the loss of a slave, the result of the war, if such slave was not specifically bequeathed, and it was unnecessary to sell the slave to pay debts.
An executor should be allowed as credits all proper disbursements made by him including costs and reasonable counsel-fees in all debts due the estate, on which, it was his duty as a prudent man, at the time he did sue, to institute suit; nor should such costs and reasonable fees paid by him be refused to be credited to him, because he has so unreasonably delayed the institution of the suit as to render it doubtful, whether the debt could then he collected. If he as a prudent, man should even then institute suit, because the debt was still not desperate, ho should be allowed such costs and reasonable fees, though the debt should not be made, and though he may under the rule, which we have stated, be properly chargablo with the debt itself as lost by his negligence in not instituting the suit as early, as he ought to have done, and when it could have been made. If when the suit was instituted whether promptly or not, there was no reasonable prospect of its being available, he ought not to be credited with expenses incurred in such unavailing effort to collect a desperate debt. See Sanborn v. Goodhue, 28 N. H. 48; Cooke v. Cooke, 29 Md. 538; Mitchell v. Trotter, 7 Gratt. 136. There are legitimate deductions from the rule, which we have laid down, that except in an extreme case an executor ought not to be charged with a debt, which he has not actually collected, merely because he has been negligent in attempting its collection or in instituting suit to collect such debt.
The general rule is, that interest on a general legacy is payable from one year from the testator’s death. Sitwell v. [328]*328Bernard, 6 Ves. 520; Entwistle v. Maryland, note to 6 Ves. 528; Pearson v. Pearson, 1 Sch. & Lef; Shobe’s ex’or, v. Carr and wife, 3 Munf. 10; Bradford et al. v. McConihay et at, 15 W. Va. 765. But if the legacy is given by a parent to a child, the interest should generally be computed from the death of the testator. See Hite’s ex’or v. Hite’s legatees, 2 Rand.; and this rule is not affected by the fact, that the legatees, the testator’s children, are also the residuary legatees. See same case.
It may be regarded as the settled law in this State and in Yirginia as well as in England, that when an executor voluntarily pays a legacy, he can not afterwards maintain a bill to compel a legatee to refund, unless it becomes necessary for the discharge of debts; and when the executor is under the impression, that he can collect a large debt supposed to be due the estate, and it turns out, that he is unable to do so, though the executor be not guilty of culpable negligence with reference to the debt, and is therefore not chargeable with the whole amount of the debt; yet if under his misapprehension with reference to the debt he pays any legatee more than he should pay, he cannot recover any part of what he has paid him, but such over-payment in this State and in Yirginia will not be regarded as an admission of assets in his hands, so as to require him to pay to others more than what is coming to them of the amount actually received by him. This was the conclusion reached in Davis and others v. Newman, 2 Rob. 664, after a review of the English and all the Yirginia decisions in any way bearing on the subject.
In the subsequent case of Nelson, ex’or, v. Page et als., 7 Gratt. 160, it appears from the statement of the case, that the executor had voluntarily operpaid certain legatees, and the court below decreed a refunding by them of the amount overpaid; and th'e executor took an appeal, principally because he claimed, he had been improperly charged with a certain debt, which he never collected, and with which he was charged, though he claimed, that it had not been lost by his negligence. The appellate court reversed the decree, because it held, that the executor had been improperly charged with the debt, and expressly waiving any consideration of any other errors alleged to have been made by the [329]*329circuit court it reversed with costs the decree below and remanded the cause with instructions to recommit the account to a commissioner to restate the same, in which restatement tlio executor was directed not to be charged with the debt held to he improperly charged to him, and to correct any other errors apparent on the tace of the account, for the proper enquiries in reference to the specific legacies, and for further proceedings. Because in this opinion and decree nothing was said by the court in reference to the over-payment made by the executor to certain legatees, it is insisted, that the action of the appellate court is to be regarded as an approval of the action of the court below in directing such over-payment to be refunded, and therefore to be an overruling of the principles laid down in Davis v. Newman, 2 Rob. 664. An examination of the latter law'will show clearly thatitv’asnotthepurposeof the court to overrule it. It is true this case is referred to in the argument in Nelson v. Page, yet no sort of reference was made to it by the court in their opinion, and they in express language waive the consideration of all questions in the case except the one question, whether the executor ought to be charged with a particular debt. It is obvious, that they did not - to any extent consider the question, whether an executor can recover of a legatee for a surplus paid him on his legacy, when such refunding is not necessary in order to pay debts. And whatever effect the decree of the appellate court might possibly have in that case in the court, below, it obviously cannot be regarded as an authority overruling the case Davis v. Newman, which was the unanimous opinion of the court after a careful consideration of the questions.
We will now apply these principles to the cause now before us for our consideration. And first, the circuit court in its decree of June 18, 1879, held, that the executor- of John Piercy sr. should not be charged with the debt-on Hinson of twenty-three dollars, debt on Jacob Argabritfe of three hundred and fifty-eight dollars and sixty-two cents. ■ There were bonds which Mary Piercy in the first chancery suit brought against her and others claimed were given for eggs, butter, &c., which under an arrangement with her husband, John Piercy sr., were to belong to her for her supervision as the [330]*330proceeds of her care and labor; and these bonds were m her lifetime collected by her, and as under the agreement executed by all the parties interested the whole of her estate, excepting one thousand dollars is to be distributed and administered by the executor of her husband, as if it wore a part of his estate, and her estate has been settled in this suit with George Piercy, his executor, as her executor de son tort, it was right for the court to hold, that these debts collected by her should not be charged to the executor of John Piercy sr. in the settlement of his accounts as such executor.
The circuit court in said decree also held, that the executor of John Piercy sr. should not be charged with the debt due from John Piercy jr. of seven hundred and eight dollars and forty cents. This debt had its origin in five hundred and sixty dollars money loaned by the testator to John Piercy jr. February 6, 1856. In December, 1860, more than three years after his qualification as executor of John Piercy sr., George Piercy as such executor brought an action of assmnpsit for this debt. When this suit was brought, nearly five years had elapsed since the cause of action occurred, and it would have become barred by the statute of limitations in less than two months. When the executor of John Piercy sr. qualified, more than three years before that time, he knew, that this was a disputed debt, and that it could not be collected except by suit; and he also knew, that John Piercy jr. owned but a small amount of personal property, and that the real estate owned by him was claimed by the executor to be liable to the payment of the Deckett debt, the principal of which was claimed to be two thousand seven hundred and twenty-seven dollars and eight cents. lie also believed, as he admits, that the entire estate of John Piercy jr. would not pay his debts, if these two claims were held valid. It was therefore his duty to institute this suit for this five hundred and sixty dollars loaned promptly, as it was obvious, that its payment would be endangered, if suit was delayed; but instead of so doing he delayed instituting the suit for more than three years. Had he brought this suit promptly, he would have obtained a judgment on it in the lifetime of John Piercy sr. in all probability, as he did not die till December, [331]*3311865. ITad lie olitained sueli judgment in his lifetime, it would Lave been a lien on tlie factory-property owned by him; and as it has been hold, that this property was not liable to the payment ol the Beckett debt of two thousand seven hundred and twenty-seven dollars and eight cents of principal, it is certain, that the debt of seven hundred and eight dollars and forty cents could have been made out of this property, though John Pieeery sr. left but a small personal estate.
As it was, this action of asmmpdt brought in December, 1860, just before the Avar, was undecided at the death of John Piercy sr., in December, 1865, shortly after the close of the Avar; it was not revived against his administrator for nearly three years in September, 1868, and as he left but a small personal estate, the judgement against the administrator of John Piercy for five hundred and sixty dollars with interest from April 1,1856, remained unpaid, and but a small portion of it, if any, can uoav be made; for of course this judgment does not bind his real estate, and it cannot now be rendered liable for this debt, as it was barred as to the heirs, Avhen this judgement Avas rendered. It is true, the counsel of the executor of John Piercy sr., in this writ says, that he believed, if he obtained this judgment against the administrator of John Piercy sr., it would, bind his real estate and could then be made. But there was no basis for such an opinion; for it had been the settled law of the State of Virginia and of this State for more than half a century, that as there is no privity between an administrator and an heir, a judgment against tlxe former does not hind lands in the hands of the heir, and is not even evidence of the existence of the debt against the heir. See Shields v. Anderson, 3 Leigh 736; Laidley v. Kline, 8 W. Va. 218.
It follows therefore, that this debt against John Piercy jr. avus really lost to the estate by the failure of the executor of John Piercy sr. to institute a suit on it promptly after his qualification as executor; and according to the principles, which wo liaA'e stated, he ought to be charged Avith this debt, unless he can sIioav a satisfactory reason, why under the circumstances, which we have stated, he did not act, as a prudent man should have acted, and institute promptly a suit for this [332]*332debt. He failed to give any satisfactory reason for this unreasonable delay, which, resulted in loss to the estate. His excuse for his delay was, that he thought he did not have proof enough, which he could readily get, to sustain his action as one of his witnesses, A. J. Piercy, was absent from the State. But he fails .to show, that there was any difficulty in either obtaining his presence at the trial or in taking his deposition. On the contrary the evidence shows, that he could readily at any time have ascertained his residence, and even probably have obtained, his attendance at the trial; and the only excuse offered for not so doing is, that they were expecting him to return to Greenbrier county, "West Virginia, to reside. This would have been perhaps a sufficient excuse for delaying the institution of the suit for a brief time; but certainty no prudent man would have delayed the suit for such a reason more than three years. We can therefore attribute this -long, delay only to gross negligence of l;is duty by the executor; and as it resulted in a large loss to the estate, the.executor should be held responsible for the debt; and if any portion of it should hereafter be made out of the personal estate of John Piercy jr., such portion of it should go to the executor to indemnify him, as far as it will go, for the loss he will sustain in favor of this debt charged to him.
But while the executor should have been charged with this debt, ho ought to be allowed as a credit the costs of the suit, which he brought for its recovery, which he has paid, as well as the reasonable fees, which he has paid counsel in this suit; for though he did not bring this suit till December, 1860, yet even then the debt was not desperate, and it was even then his duty to endeavor to have it collected by suit; and if John Piercy sr. had lived till the judgment was rendered, the debt might still have been made.
The circuit court therefore erred in directing in its decree of June 18, 1879, that this debt should not be charged to the executor.
In this decree the court also directed that the debt on John Williams and George Knight should not be charged to the executor. In this it did not err. This was a bond for five hundred and eighty-four dollars which was dueUovember 12,1849. The obligor, John Williams, was solvent; and the debt could [333]*333have been collected. The other obligor, George Knight, was at the time of his death insolvent, his estate paying but about one-third of his debts. This debt is still perfectly good; and it has been placed in the hands of a commissioner to collect. No suit was brought for a long time on this bond; but as it was one of the bonds claimed by the widow, Mary Piercy, as belonging to her as her separate estate, this furnished some excuse for the delay in the collection of the debt, a delay, which was rendered less negligent by the fact, that it was perfeetN good, and that it could be regarded as a debt not endangered by delay in its collection. A prudent man'could therefore not improperly delay the collection of this debt, till the dispute was settled about where its proceeds were to go, and this was not determined till the death of Mary Piercy in 1868.
Under these circumstances according to the principles, which we have laid down, the court properly held, that this debt ought not to be charged to the executor, as no part of it had been received by him, and no part of it has been lost by his negligence.
In this decree the court also directed, that the debt of P. Sammons should not be charged to the executor. In this the court erred. This was a bond of one hundred and nineteen dollars and thirty-five cents aird the executor in his deposition states, that in 1859 or 1860 he exchanged this bond for one on A. J. Piercy for about the same amount; and this last named bond had not been paid. This exchanging of this bond is, as we have seen, a conversion of it to his own use; and the executor ought therefore to have been charged -with it and the interest on it as of the time he thus exchanged it for another bond. This second bond is not the property of the estate but the individual property of the executor.
The court also directed, that the executor should not be charged with the debt of one hundred and ten dollars and seventy-one cents on C. B. Martin. The counsel by an agreement filed in this Court have requested us not to act on the question, whether this debt ought to have been charged to the executor or not, and have desired us, when this cause is recommitted to the circuit court, to direct a further [334]*334enquiry to be made as to the propriety or impropriety of this debt being charged to the executor; and this course will be taken.
The court also directed, that the executor should not be charged with the price of either of two slaves, each appraised at eight hundred dollars. This was a proper direction on the part of the court. One of these slaves was claimed by Mary Piercy, the widow, who held it; and that slave never came under the control or into the possession of the executor but died, while claimed and held by Mary Piercy as a part of her estate. The other slave was hired out for several jmars by the executor and was lost during the war through the interposition of the Federal soldiery. As this slave was by this will disposed of to some legatees by the residuary clauses it was not the duty of the executor to sell it, there being no debts or monied legacies, which rendered the sale of this slave necessary. There is no evidence, that there was any agreement among these seven legatees, that any one of them should take this slave at any named price; and the executor therefore performed his duty in hiring it out till there wras a .final distribution of the estate, and before this the slave was lost by causes, over which the executor had no control.
Finally the court directed, that the executor should not be charged with the Beckett debt or with the one thousand nine hundred and sixty-three dollars and eighty-two cents, the first thing with which the commissioner had charged the executor. The court did not err in this direction to the commissioner. The facts with reference to this debt have been briefly stated in the statement of this case, which precedes this opinion. I do not regard it necessary to state them in greater detail, as tire question for our consideration in this cause now is, not whether this debt had a real existence at the time of the death of the testator, or whether, it it had, it was a lien on the factory-property or not, or whether it was a mere claim against John Piercy jr. by reason of a promise-by him to the testator, John Piercy sr., to pay it, for which an action of assumpsit would lie. The second of these questions has been decided by this Court in Piercy’s ex’or v. Beckett et als., 5 W. Va. 199, when it was held, that if this debt had an existence at the death of John Piercy sr., [335]*335it was not a lien- on tlie factory-property, for though thebond of Beckett, which represented it, was secured by a deed of trust on this factory-property, yet this bond had been canceled and surrendered in the lifetime of John Piercy; and if the debt had any existence, it was only by virtue of a promise by John Piercy jr. to pay it to his father. It is useless now to enquire, whether such a promise was ever really made, on which an action of assumpsit or of debt would lie, as such action was never instituted and this action has now been long since barred by the statute of limitations.
The only question for us now to decide is, whether on the facts appearing in this record the executor as a prudent business-man in the exercise ot proper diligence was bound to promptly institute an action of assumpsit against John Piercy jr. for this debt.
The commissioner on April 20,1874, reported: “To ascertain whether John Piercy jr. undertook to pay the Beckett debt mentioned in the bill, and, if so, whether by bond or parol the testimony of quite a number of witnesses was taken. From this testimony your commissioner had no difficulty in deciding, that John Piercy jr. did not undertake to pay said debt, but to determine whether he executed his bond for the same was quite difficult.” lie then reviews the testimony at considerable length and concludes: “The above is the substance of the testimony taken before your commissioner. While he cannot say, that he is entirely satisfied, that the execution and delivery of the bond by John Piercy jr. to John Piercy sr. is clearly established, still he is of opinion, that the weight of the testimony goes to prove, that it was; and he therefore reports accordingly.” This bond he reports, if executed, was executed in the year 1856, or in 1857, or in 1858, and therefore was not then barred by the statute of limitations. It is therefore obvious, that if the same conclusion had been reached as to the facts by the executor of John Piercy sr., as was reached by the commissioner, he ought not as a prudent man to have brought an action of assumpsit against John Piercy jr. for-this debt, for he must according to this view of the facts have failed in such a suit, though he might perhaps have successfully brought a suit in chancery against John Piercy jr. to set up this supposed lost [336]*336bond, which the commissioner thought he had given in lieu of this Beckett bond, which had been surrendered and canceled ; but unfortunately for the appellants the circuit court of Greenbrier in its decree of June 22, 1876, in the chancery cause brought to enforce this debt by the executor as a lien on the factory-property adjudged: “that the plaintiff has not established by proofs in the cause his right to recover from the estate of John Piercy jr. the claim of two thousand seven hundred and twenty-seven dollars and eight cents (the Beckett debt) or any part thereof; that the evidence is insufficient under the circumstances to satisfy the court the said John Piercy jr., ever executed his bond to his father for said debt. Uor is there sufficient evidence to charge said John Piercy jr’s. estate by simple contract for said debt. If such ever had any existence it is now barred by the statute of limitations.” It is therefore obvious, that if the executor of John Piercy sr., had reached the conclusion as to the facts, which the circuit court reached, which we must suppose, he might have done as a prudent man, he could not prudently have instituted either an action of assumpsit or a chancery suit to enforce the supposed lost bond against John Piercy jr., the probabilities being, that he would have been defeated in either suit.
These seem to have been also his views and those of his counsel; and he accordingly in 1868 instituted a chancery suit to establish and enforce this Beckett debt as a lien on the factory-property; and the circuit court was of opinion, that he established by the proofs, that it was such lien and was proceeding to enforce it, when an appeal was taken to this Court, and the decree of the circuit court was reversed, and it was declared, that this debt was no lien on the factory-property. The mere fact, that the circuit court of Green-brier sustained the executor’s bill in this case, is abundantly sufficient to justify the executor in the institution of this chancery suit. To hold otherwise would be to make an executor an insurer of his ultimate success in every suit brought by him, no matter what his reasons may have been for supposing he could successfully maintain the suit, when it was brought. If these views of the circuit court and this Court are correct, it is obvious, that this Beckett debt never [337]*337eoulcl after file death of John Piercy sr., have been recovered either by using common law suit or by using chancery suit, and therefore no loss could have resulted to the estate from the failure of the executor to sue promptly. The delay in bringing the suit before the war was probably produced by the difficulty of proving these facts and the uncertainty, which after careful examination still existed as to what were the real facts. The war delayed the institution of the suit for another four years; and the inherent difficulty in determining what course ought to be pursued in this ease probably produced the further delay after the Avar. Put though the executor may not be excused by these circumstances in delaying the institution of any suit for so long a time and might be responsible for this debt, if it had been lost by such delay, yet he can not he held responsible under the existing facts, because it is ob\dous, that had he instituted the suit, Aidiich he did institute, probably on his qualifying as executor, and the circuit court had, as it did, decided the case in his favor, an appeal could have been taken to this Court five years after the rendition of the decree, and it would have been reAmrsed by this Court, and being before such reversal au action of assumpsit, Aidiich on the eiddence might possibly haAm been sustained, Avould have been barred by the statute of limitations.
So that in no Anew, Aidiich Ave can take of the case, has any loss been sustained by the estate by the delay of the executor in the institution of the chancery suit, which he brought in 1868, to make this debt; and he ivas AAdien he brought this suit, fully justified in bringing it, and had in the judgment of a prudent man and even of the circuit court reasonable ground to suppose, that ho would succeed in making the debt. Upon the principle AATe have stated therefore the circuit court did not err in holding, that he ought not to be charged AA’itli this debt or any part thereof, and ought to be credited AA'itli the costs and reasonable attorney’s fees paid by him in this suit.
The circuit court in its decree of June 18,1879, decide that the executor should be allowed no commission, the testator hav-ihg deAdsed him a tract of land for his services as executor. This action of the court A\ras obviously right. It also decided, [338]*338that he should not he credited with one thousand two hundred dollars funded by him in a Confederate certificate. This too was obviously right; for the executor was under the circumstances totally unjustifiable in so investing the money of the estate. In fact he had no right to invest it at all, but should have paid any money which he had no use tor, to the legatees.
The third instruction given the commissioner in this decree of June 18,1877, is in proper accordance with the principle, which we have laid down, except that under the circumstances of this case the legatee’s account should have been opened at the end of the first year instead of at the end of the second year. The only debt due from the testator was one of some four hundred dollars due to Henry Iledripk. The exact amount of this debt was known; it was controverted; and it was some ten years before the controversy was ended. But the debt being small and the amount of the claim known, there was on the principles, which we have stated, no propriety in keeping open the executorial account because of the existence of this small claim. The executorial accoimt as to mode of stating should have been promptly closed at the end of the first year; and the legatee’s account opened. With this modification this third instruction given by the court was correct.
The fourth instruction in this decree to the commissioner is, as we have seen, in all respects correct. The fifth instruction in said report is also as we have seen correct. And the sixth, seventh, eighth and ninth instructions to the commissioner are also, irom what we have already said, correct.
The several exceptions by the executor George Piercy to the commissioner’s report named in the said decree and in it sustained by the court were properly sustained, as appeared from the principles we have stated and what has been already said, excepting only the 10th of these exceptions, which was to the executor being charged with the debt of John Piercy sr. of seven hundred and eight dollars and forty cents, and that part of the 6th exception, which applied to the debt of Richard Sammons. This debt, we have seen, was properly chargeable to the executor; and so much of this 6th exception, as refer to it, should have been overruled as well as the [339]*33910th exception. The 12th exception with reference to the debt of C. B. Martin we do not act upon and do not decide, whether it ought or ought not to be sustained, as this debt for reasons, which we have stated, is left open for further enquiries, when this cause is recommitted. As to the 14th of these exceptions, which is, “that in the matter of the special legacies the executor is charged with too much interest,” from the imperfection of the record as sent up I am not certain what interest on these special legacies were allowed; but I can hardly suppose, that the executor was charged with too much interest on these legacies. It is more probable that enough interest was not allowed to the special legatees. The special legatees, who were children of the testator, were entitled to interest on their legacies, as we have seen, from the death of the testator. The bond of John Piercy sr. of three hundred and fifty-eight dollars and sixty-two cents, named in the 5th exception by the executor, was claimed and held by Mary Piercy as her separate estate; and for reasons, which we have given, the court properly sustained this exception.
Upon the principles which we have stated, and what has been heretofore said the additional exceptions signed by the counsel Price and Preston for the executor, which were sustained by the court in its decree of June 18, 1879, were all properly sustained excepting the fourth in reference to the debt of five hundred dollars due frorn John Piercy jr;, which which should have been overruled, and excepting perhaps the seventh referring to the C. B. Martin debt, which is left open by request of parties for further enquiry, when this cause is recommitted to the circuit court of Greenbrier for further proceedings.
So far as we can ascertain from the record before us, the exceptions of the defendant, the executor of John Piercy, which were overruled by the circuit court in its decree of June 18, 1879, were properly overruled.
The court in its decree of June 18, 1879, properly sustained the first and second of the plaintiff’s exceptions to the executorial account and the second of his exceptions to the legatees’ account for the reasons and on the authorities set out in these exceptions, The court should also, for the rea[340]*340sons we have stated have sustained the plaintiff’s first exception to the executorial account and so far as it complained, that the legatees’ account was not correct, it should have directed the legatee account to he opened at the close of the first year; but the mode of continuing the executorial accounts after that time, which was adopted by the commissioner, was not erroneous after the close of the second year, as it was not after that time stated upon the principles of an executorial account in effect. The other exceptions of the plaintiff’were by’this decree of June 18, 1879, properly overruled on the principles we have stated and the facts proven in the case.
It remains now to enquire, what errors, it any, were committed by the circuit court in its final decree of November 12, 1879. The court in this decree overruled all the exceptions, which had been filed to the commissioner’s report dated October 24, 1879 ; and the first statement of said report was confirmed except as to the matter of the costs of this suit, which the court was of opinion should be paid out of the common fund. The court did not err in this opinion. The original suit, which was brought by the executor very shortly after lie qualified as executor of John Piercy sr., had for one of its objects the settlement of his executorial accounts and the distribution of the estate under the order of the court; though this was notits main object. The main object of this suit having become unnecessary to be determined by the court, it having been settled by the parties, the court heard this cause with the last’ cause. If it had been convenient to the parties to settle the executorial accounts and make the distribution of the estate in this first suit only the court might have directed the costs to be paid out of the estate; and it seems to me, as the settlement of the execu-torial accounts, which had been made in this first suit, were used as the basis of the settlement of these accounts in this last suit, the fact, that it was found to the convenience of parties to abandon the first suit and settle these executorial accounts in this cause, ought not to affect the fund, out of which the costs attending this settlement and suit should be paid, especially as both causes were heard together. Had this first suit with this object not been instituted by the [341]*341executor, it would in this suit brought against him by the legatees of the estate have, been proper to make him personally pay the costs. It is also proper that the costs incurred in this Court on this appeal should be paid out of the common fund, that is, by the testator de bonis testatoris. Regarding, these two chancery suits as substantially the saíne, it was proper, that all the costs paid by the executor of John Piercy as well as his reasonable attorney fees should be paid out of the common fund, which, it is not disputed, must have been done in the first cause.
The only exceptions filed by the executor to this report dated October 24, 1879, were exceptions to his being charged with the judgment against Madison McClung and the debt on Hannah, Elizabeth and John Piercy; and they were but a repetition of exceptions, which,had been filed to the former report of the commissioner, which by the decree of. June 18, 1879, had been overruled properly by the court, the.evidence in the cause showing, that these debts were properly charged to the executor. The plaintiffs renewed some of their exceptions to the first report, which had been already acted upon by the court; and the directions of the court in its decree of June 18, 1879, had been followed by the commis^ sioner; and they filed numerous exceptions, which on examination will be found, except three of them, to be exceptions based on the commissioners having followed the directions of the court given in its decree of June 28, 1879. These directions we have fully considered. Most of them we have found Avero proper directions, though some of them were erroneous, and of course led to erroneous results in this report of October 24, 1879.
Three new exceptions only were filed by the plaintiff. One of these ivas “Ho. 10” which was, that Martha Masters was improperly charged with three beds valued at twenty-five dollars each. These beds the exception claims were her own; and she should not have been charged with them, and examination of the evidence shows, that this exception is not sustained by the proof; and it was properly overruled by the court. The exception “Ho. 11” is, that the interest on the pecuniary legacies is not calculated from the proper time. The report shows that the commissioner did not begin the charge of [342]*342interest on the legacies to the children for more than two years after the death of the testator. We have seen, that interest on their legacies should have been allowed from the death of the testator. This exception ought therefore to have been sustained instead of overruled by the court. The exception “No. 13” was to an alternate statement made by the commissioner at the instance of the executor. This alternate statement was not acted upon or considered by the court below and we need express no opinion in reference to it.
This decree of November 12, 1879, also proceeds as follows : “And it appearing from said report, that some of the legatees haVe been overpaid, and that the said executor of John Piercy sr., deceased, is entitled to recover against them respectively for the said excess, to-wit, Peter L. Anderson the sum of one thousand and sixty-two dollars and eighty-seven cents, Newton Hedrick and Cynthia, his wife, one hundred and ninety-two dollars and nine cents, Rachel Piercy five hundred and eighty-six dollars and ninety-nine cents, Rebecca Reed’s heirs one thousaud one hundred and sixty-nine dollars and sixty-two cents, all of which sums bear interest from the first day of December, 1879, until paid. But this court is not in a position to enforce said liability against the heirs of Rebecca Reed; it is therefore adjudged, ordered and decreed, that said George Piercy, executor of John Piercy, deceased, recover against said Peter L. Anderson, Rachel Piercy and Newton Hedrick and Cynthia his wife the sums respectively aforesaid with interest on the respective sums from the said 1st day of September, 1879, until paid.”
As these payments were made by the executor to these legatees voluntarily, and the refunding of these sums were not necessary for the discharge of debts, on the principle, which we have laid down and the authority of Davis et al. v. Newman, 2 Rob. R. 664, it was error for the court to decree the repayment to the executor by the legatees of the sums, which they had received in excess of what was coming to them. We are therefore of opinion, that the decrees of June 18, 1879, and November 12, 1879, were both erroneous and must be reversed, and that the appellants must recover [343]*343of the appellee, George Piercy, executor of John Piercy, deceased, their costs expended in this Court to be paid out of the assets of his testator in his hands to be expended; and this cause is remanded to the circuit court of Greenbrier county to be further proceeded with according to the principles laid down in this opinion and further according to the principles governing courts of equity. And the said circuit court is directed to recommit this cause to the commissioner of said court to settle the accounts heretofore directed to be settled in the decrees, which have been heretofore made in this case, with instructions to proceed and settle said accounts in accordance with the principles set out in this opinion, and further according to the principles governing courts of equity, and with special directions to take any other testimony, that may be offered on the question, whether the executor of John Piercy sr. should be charged with the C. B. Martin debt, and make his report to said circuit court.
Judges JIaymokd ahd Johnson ConcuRREd.
Decrees Reversed. Cause Remanded.