Moore, Judge,
delivered the opinion of the Court:
It is urged by tbe appellants, that tbe court erred in tbe order of September 17, 1869, by instructing tbe commissioner, that in settling John H. Campbell’s administration account, “the settlement heretofore made before commissioner Stone, and approved by tbe county court of Jefferson, is to be taken as correct, except so far as the same, or any of the items therein, shall be 'proven to be other-wiseFirst — “ because tbe allegations of the bill, if true, deprived that document of all weight and credit as a fiduciary account, and as that bill was not answered, and was taken for confessed, tbe statute of our State imperatively required that all those allegations were deemed true, and dispensed with all proof of the same;” Secondly — “ Because when that interlocutory decree was so entered, the administrator was in contempt of the court, had refused to exhibit his vouchers befo re commissioner Cooke, and had refused to give any account of his agency.”
The order of September 17, 1869, is the one known as the consolidation order, in which the two suits: the injunction suit and the suit for surcharging and falsifying the ex parte account of Campbell, settled by commissioner Stone, were heard together ; the injunction suit was heard, as the order states, “upon the papers previously read in the cause, and the report of master commissioner James D. Fayman, returned and filed July 26, 1869, with the exceptions to said report;” and the other suit was heard “ upon the bill filed by the distributees of Thomas Campbell, deceased, to surcharge and falsify the account by John H. Campbell, administrator of said Thomas Campbell, deceased, and upon the orders of the 15th day of January, 1858, and 3d day of November, 1858.”
It appears from the order of January 15, 1858, that leavé was given to the defendants, on their own motion, to file their answers in the suit for surcharging &c., within sixty days from the rising of the court, such an[136]*136swers to be subject to all proper exceptions; and the supplemental record, brought up in obedience to the certior-ari from this court, shows, that John II. Campbell did, 'on the 30th day of May, 1859, file his answer to the bill, and that the plaintiffs replied generally thereto. Hence it is not true, that the order of September 17, 1869, waK made upon the bill taken for confessed, nor does it claim to be. In fact, as the two suits were then heard together, as the order states, all the parties were before' the court, when the order was made, John IT. Campbell by his bill of injunction, and by his answer to the other suit, and the other parties by their bill in the cause to surcharge and falsify, and by their answer to the injunction bill."
It is true, that the order of the court, made September 17, .1869, docs not intimate, that the surcharging and falsifying cause was heard also upon the answer filed by John II. Campbell; nor does the record disclose, what the answer was.
The writ of certiorari has failed to bring up the answer, and no attempt has been made to account for its absence from the record; but whether it was before the court, or not, at the time the order of September 17, 1869, was made, the court was certainly justified under the circuí instances, and by the state of the pleadings in the two causes, to make such an order. Nothing had been done in the surcharging and falsifying cause since the order of November 3, 1858, when the court, acting upon the report of commissioner Cooke, made under the order of January 15, 1858, overruled the rulings of said Cooke, and virtually recommitted the cause.
The plaintiffs remained idle and the suit remained non-prosecuted until August 4, 1867, when John II. Campbell himself urged [it up by filing his injunction bill, involving the same issues and connecting his suit with the original suit by direct allegation of the institution, pendency and non-prosoention thereof, and prayed a reference to a commissioner to settle his account nearly [137]*137nine years after the November order had been made. No explanation is made for this long failure to prosecute; but so far as the plaintiffs in the original suit were concerned, they seemed to have abandoned it; but by1 r answering the injunction bill in the manner they did, the two causes wore blended by the concurring action of the parties, and presented anew for the consideration of the court the pretensions of the parties respectively; and therefore even had there been no answer to the original bill by Campbell, the filing of the injunction bill by him, syiiainmi. under the circumstances, might, as in Kyle’s ex’or v. Kyle, 1 Gratt. 526, serve the double purpose of an answer and cross-bill in the first suit, and justify the court in proceeding to consider and decide the cause upon its merits, and consequently the court had the right to recommit, or refer the cause, as it did, to commissioner Fayman, to state fully the administration account of John H. Campbell, although the former order remained unexecuted.
But it is argued, that it was error to enter the order of September 17, 1869, because at that time John'H. Campbell “was in contempt of the court, had refused to exhibit his vouchers before commissioner Cooke, and had refused to give any account of his agency.”
The order of November 3, 1858, was made upon consideration of commissioner Cooke’s report, showing that John IT. Campbell “refused to produce the vouchers, which were before commissioner Stone, when he made the exparta settlement,” and the court adjudicated, that Campbell was “ bound, on the requisition of the plaintiffs, to produce the vouchers,” and “ to produce a detailed statement of his agency account.” No opportunity was over afforded John IT. Campbell, after the making of that order, to produce the vouchors, nor to produce a detailed statement of his agency account, as the order of reference was never attempted to be executed until after Campbell put the whole matter again in motion by filing the injunction bill, and the court by the order of April, [138]*1381868, upon the bill being taken for confessed, referred that cause to a commissioner to take and settle the administration account of Campbell, &c., and by the order of Setempber 15, 1869, recommitted that suit and referred the cause for sureharging and falsifying, &c., to commissioner Fayman. Up to this last order Campbell was not in contempt, but on the contrary was aiming to have the matters in controversy settled; and under this last order the court did all it could do under the circumstances, and that was, to recommit and refer the cause to commissioner Fayman, to execute the orders of the court, which, it seems, the other commissioner had failed to|do.
Obedient to the requisitions made by the September order, Campbell answered under oath, November 1,
1869, that the vouchers had been destroyed by a fire, which destroyed his house, July 27, 1869; and that he was unable to give a detailed statement of his agency account, except as to the $1,000.00 bond, “because ho never kept such a statement, and was never required or requested by his father so to do.”
Soon thereafter, John H. Campbell died, and his death was suggested to the court at the April term, 1870; and upon the 20th day of September, 1871, upon an affidavit filed, of one Henry Dunncr, tending to show that the vouchers might yet be accessible in the settlement of Campbell’s administration account, commissioner Fay-man was directed “to summon the personal representative of John H. Campbell, deceased, before him, and otherwise ascertain, if said vouchers are in existence and are now accessibleand that he revise and correct his former report by any proper and legal evidence produced before him. Acting upon this order, Fayman, still failing to discover the vouchers, made his report upon the evidence before him, with the alternate statement, which forms the basis of the decree of September 30, 1871.
The instruction given by the court to the commissioner, Syllabus^2. “that the settlement heretofore made before commis[139]*139sioner Stone, and approved by the county court of Jefferson, is to be taken as correct, except so far as the same or any of the items therein, shall be proven to be otherwise” is what the statute, Code 1849, p. 552, chap. 123, § 23, itself declared, viz : “.The report, to the extent to which it may be so confirmed, shall be taken to be correct, except so far as the'same may, in a suit in proper time, be surcharged or falsified.” And the same provision was retained in the Code of 1860, chap. 132, § 23, and in the Code of West Va. chap. 87, § 22, and has been the rule announced by the courts not only of this country but of England also.
But it is argued, that the court erred in instructing the commissioner, that “the alleged indebtedness of John H. Campbell to the estate, prior to the death of his father, the intestate, if any such exist, will be embraced by said commissioner, the same being regarded by the court as necessarily involved in said settlement made by Syllabus 3. commissioner Stone, but the presumption in favor of the correctness of said account is in like manner to apply to it.”
The counsel for appellants designate that provision as “singular.” It certainly is vague. I can give no other interpretation to it, than that the court intended the commissioner to settle, in connection with the administration account, the agency account of John H. Campbell, it being necessarily involved in :the settlement made by commissioner Stone of the administration account; and that so far as Stone’s settlement had stated the agency account between John H. Campbell and his father, it should be taken as prima facie correct, until surcharged or falsified. It could not have meant the settlement of an account merely of the indebtedness of John H. Campbell to the estate prior to the death of his father. If it did mean that, - then the instruction would have been adverse to Campbell and favorable to the appellants, and could not be an error, for which appellants could áppeal. Obviously it applied to the whole agency account; and the presumption of correctness was to apply to only so much [140]*140thereof as had been stated in the account as settled by Stone and appiovcd by the county court, whilst the items extra the Stone settlement should be governed by proper proof; and that was as far as the court could go. It could not decree that an account, not yet taken, should be presumed to bo correct prima facie ; and an Appellate Court will not presume that such was the decree, unless the language thereof plainly shows, that such was the intention of the court.
As to the decree of December 30, 1871, it is argued? that the court erred: First — In allowing the $1,000.00 bond of January 1, 1846, alleged to have been given to John H. Campbell by his father for services, &e.; Second' — -In allowing the $300.00 per annum to said Campbell for personal services from January 1,1846, for seven years and seven months, with interest; Third — In allowing the amount of the Fry & Co. debt of $3,437.81; Fourth — In confirming the commissioner’s report, in which John H. Campbell is not charged as administrator, nor is Orra S. Janney allowed as a credit the amount of a Virginia State bond for $4,700.00; and Fifth — In making any final decree, without requiring an account to be settled by John II. Campbell of his agency, &c.
As argued by counsel for the appellee, the real question before -the court Avas, whether the ex parte settlement of John .H. Campbell, as administrator of his fathers’s estate, made before commissioner Stone had been successfully surcharged or falsified ? ”
In the ex parte settlement commissioner Stone allowed John H. Campbell credit for the $1,000.00 bond of January 1,1846, with interest on same to November, 1855, $590.00. He allowed said Campbell $300.00 per annum, for his services rendered to his father, from January 1, 1846, to August 1, 1853, seven years and seven months, amounting to $2,275.00. He allowed Campbell credit for cash paid Lewis Fry & Co., February 10, 1854, $3,437.81.
The bill attempts to surcharge and falsify those items, [141]*141under the statute, before cited, Code 1849, ch. 132, §23, and Codes subsequent, those items shall be taken as cor-' rect until surcharged or falsified.
Have they been surcharged or falsified, by proper proof?
By the several references of the matter to commissioners, every opportunity was afforded the parties, to sustain the allegations of their bill, as to the incorrectness of those items, by surcharging and falsifying them. Upon examination of the exceptions made to Fayman’s report of September 14, 1871, by both parties, it is noticeable, that but one item of the account was excepted to by the plaintiffs in the surcharging and falsifying suit, viz: the allowanee as a credit of the Lewis Fry & Co’s debt of $3,437.81; andón the part of the administrator of John H. Campbell, deceased, the disallowance of the $ 1,000.00 bond was excepted to by his counsel.
The court, acting upon that report and the exceptions thereto, on the 20th day of September, 1871, recommitted the report to the commissioner with instruction, that he proceed to revise and correct it “by any proper and legal evidence, that may be produced before him.” Thus again was an opportunity afforded the parties to surcharge and falsify.
Fayman filed his revised and corrected report November 24, 1871, wherein he had made alternate statements of the disputed items or credits, thus casting upon “the court the burden of deciding as to the admission” of those items of the administration account. No exceptions were filed to this report, aud the court was thus permitted to confirm it, in the manner stated in the decree, without objection.
In the case of Reitz & Co. v. Bennett et al., 6 W. Va. Syllabus 4. 418, this court held : “As a general rule, though perhaps not universal, when there are no exceptions filed to a commissioner’s report, and the report is confirmed by decree of the court below, an Appellate Court will not look into the report. The parties in interest will be [142]*142taken to have acquiesced in the report.” * * * “But ' this rule does not apply where the decree rendered upon * * the report is materially contrariant thereto,” >'qAj£h0Ugh n0 exceptions are filed to a commissioner’s rc-port, and the report is confirmed, if the decree of confirmation upon its face shows material error as to matter of law, prej udical to the appellant, for such error the decree should be reversed.”
Applying that rule to this case, there being no exceptions to the report, the parties in interest will be taken to have acquiesced in it; and this court will not look into it, unless the decree is materially contrariant thereto, or shows material error as to matter of law prejudicial to the appellants.
The appellants do not claim, that the decree is at all contrariant to the report, nor does the decree show upon its face material error as to matter of law prejudicial to the appellants. The report oí Fayman, as to the items complained oí, virtually accepted Stone’s report thereto as correct, there being, in his opinion as stated in a former report, nothing in the depositions “falsifying, or surcharging, one item as charged therein.” The only difference in his report irom that of Stone’s is the alternate statements of these three items: the $1,000.00 Syllabus 5. bond, the $300:00 per annum and the Lewis Fry & Co. debt. These alternate statements were necessary, because, as these items were disputed, the account would vary according to the allowance, or disallowance, ot them; and therefore “the attention of the court was necessarily directed to them,” in order to decide, which statement should be confirmed ; and that decision would depend upon the weight of evidence upon surcharging, or falsifying, them, which of course necessitated the court to inspect that evidence closely. That the court weighed that evidence is manifest, as the decree states the opinion oí the court to be “ that none of the items contained in the ex parte settlement made by master commissioner Stone, have been successfully surcharged and falsified.”
[143]*143The court therefore starting with the presumption, that the ex parte settlement made by Stone was prima facie correct, and guided also by the principle as laid down in McCall v. Peachy’s adm’r, 3 Munf. 288, and Tabb v. Boyd, 4 Call. 453, that vouchers, which cannot bo produced on the new settlement, upon a bill to surcharge and falsify a former settlement, may be presumed to have existed, and in every such case the onus probandi is thrown on the adverse party, and that this rule should be strictly adhered to, when there has been a great lapse of time, (2 Matthew’s Dig. 184, note, and Burwell v. Anderson, 3 Leigh 353), had but little evidence to consider as to the $1,000.00 bond. An attempt was made to show, that the bond was made without consideration. On direct examination Mrs. Wysong deposed as follows, March 12, 1869 ■:
“ Question by defendants — In the administration account of Mr. J.ohn II. Campbell there is charged as due him, John H. Campbell, a bond of one thousand dollars ($1,000.00), dated January 1,1846, and drawn by Thomas Campbell. Have you any knowledge of this bond ? And if so, state all you know about it, especially the object- for which it was given.
“ Answer — It was given him as a pocket bond to give him credit in the bank, and to indemnify his indorsers, William Ferguson and James Gunnell. He said, they would not go on his note, unless. such a bond was given by my father. Father gave him the bond with the understanding, that it was to be returned when the bank debt was paid.
“ Question by same — Please state the transaction in which Mr. Ferguson and James Gunnell became endorsers on a note in bank of your brother, John H. Campbell ?
“ Answer — It was to borrow some money out of the bank. I think it was in Winchester — the Valley Bank.
“Question by same — Do you know how that note was paid ?
[144]*144“ Answer — I suppose it was from the crops from the farm.
“ Question by same — Were you present, when any con-VGrsaqjon too¡c p}ace between Mr. John H. Campbell and your father in reference to the bond, which you call a pocket bond? And if so, state‘what that conversation was?
“Answer — My father asked him for the bond, he said, without being in my presence; and I heard my father ask him, my brother, for the bond a number of times. My brother never made him any reply — would hurry out of his presence and leave him and hoot at him.”
On cross-examination she deposes as follows :
“ Question by plaintiff — In your answer to the. loth question, you state, that a certain $1,000.00 bond, dated January 1, 1846, executed by Thomas Campbell to John H. Campbell, was given as a pocket bond. Were you present when this bond was executed ?
“Answer- — -I was not present, when the bond was executed ; but I was present, when my brother returned from consultation with William Ferguson and James J. Gunnell, his endorsers, and said it was necessary that he should have a pocket bond.
“ Question by same — To whom did he say this ?
“ Answer — John H. Campbell said it to my father.
“ Question by same — What did your father say in reply ?
“ Answer — I do not remember.
“ Question — Do you remember, whether your father made any objection to executing this bond or not- ?
“ Answer — If ho had made objection, he would not have given the bond.
“ Question by same — Can you state, why it wras the bond wras not given at the time John H. Campbell returned from the consultation and said to your father in your presence, it was necessary to give the bond, if he did not object?
[145]*145“ Answer — He was not ready to give it, I suppose.
“ Question by same — Do you not know the fact, that ' your father was the first endorser on all moneys borrowed by John H. Campbell out of bank ?
“Answer — I know, that he sometimes endorsed John’s notes in bank — whethei first endorser, or not, I do not know.
“ Question by same — If lie was in the habit of endorsing John H. Campbell’s paper, can you explain, why it ivas imagined, that tbis bond could give J. II. Campbell any further credit in bank ?
“ AnsAver — It Avas to give him credit, and to indemnify his endorsers, William G. Ferguson and James Gunnell. My brother stated so to father in my presence.
“ Question by same — Do you knoAV, Avhcther your father was, or was not, an"endorser on this Ferguson and Gunnell note, of Avliich you have spoken ?
“ Ansiver — I do not knoAV it.
“Question by same- — -Did you understand from your father, whether he was on that note, or not ?
“Answer — I did not.
“Question by same — State at Avhat time of the year it was, that you heard John H. Campbell, after consultation Avith Ferguson and Gunnell, tell your father, it Avas necessary for him to give this $1,000.00 bond.
“AnsAver — I do not recollect Avhat time of the year it Aims.
“Question by same — You say,, you have heard your father ask John H. Campbell to give up this bond. I AAdsh you to state in detail, Avhen and Adhere it Avas, you first heard your father ask him tq give up this bond, \vho Was present, Avhat your father said, and Avhat reply A?as made by your brother. State all that occurred in detail.
“Answer — My mother and sister, Mrs. Hammond, were present at our house, the first time I heard him — -for it Avas in the dining-room • the day and year I do not remember; but I heard — ask for it a number of’times.
“Question by same — On the occasion, to Avliich you re[146]*146fer in last answer, state at what season of the year it was. Was it in the summer or winter time?
“Answer — -I do not remember, at what season of the year it was.
“Question by same — Do you remember, what your father said, and how the matter came up, and what reply John II. Campbell made at this interview in the dining-room ?
“Answer — I do not remember how it came up. He asked John for the pocket bond; he said he wanted it. John said, “Boo !” and walked out of the dining-room-
“Question by same' — How often have you heard Thomas Campbell ask John H. Campbell for this bond?
“Answer — I did not set the number of times down.
“Question by same — Do yon think you have heard your father ask for this bond as often as ten times?
“Answer — Do not remember how many times.
“Question by same — Please repeat above question.
“Answer — I did not count the number of times.
“Question by same — Have you heard your father ask for this bond more than twice?
“Answer — Yes; I have heard him ask for it more than twice.
“Question by same — Can you state any particular occasion, when you heard him ask for it, except the one in the dining-room, of which yon have spoken?
“Answer — I have told you all 1 know.
“Question by same — Do you remember any occasion, when this bond was asked for, when anybody but you and your mother and sister were present ?
“Answer — I do not.
“Question by same — On these variou soccasions, when you say you heard your father ask John H. Campbell to give up this bond, and he would not do it, can you state whether John H. Campbell on any of these occasions gave any reason,- why he would not give up this bond ? If so, what reason did he state ?
[147]*147“Answer — I did not hear him give any reason upon any of these occasions.”
The purpose assigned by the witness for the execution of the bond is, at least, singular. “It was given him as a pocket bond to give him credit in the bank, and to in-demniiy his endorsers, ¥m. Ferguson and James Gun-noil. He said they would not go on his note, unless such a bond was given by my father. Father gave him the bond with the understanding, that it was to be returned, when the bank debt was paid.”
How7 did she know it was given for that purpose ? She says, “I was not present, when the bond was executed; but I vras present, when my brother returned from the consultation with Wm. Ferguson and James J. Gunnell, his endorsers, .and said it was necessary that he should have a pocket bond.” She remembered, that John IT. Campbell said that to his father, but did not remember, what his father said in íeply. She did not remember the time of year, nor season, she heard Campbell tell his father, it was necessary for him to give this $1,000.00 bond.
She says, that her mother and sister, Mrs. Hammond, were present in the dining room, when she heard her father ask John the first time to give up the bond. She heard him ask John “ a number of times ” to give up the bond, but did not know how7 many times; heard him ask for it more than twice. When asked if she could state any particular occasion when she heard the bond asked for, except the once in the dining room, replies: “I have told you all I know7.” She has never seen the bond, nor does she in any way identify it. The first eatecliiscr, being on her side of the cause, propounded his question to her by first giving her a description of the bond, giving obligor, obligee, amount and date, and from that, as her 'postulatum, she starts, taking it for granted that this is the same bond, which John had asked his father to give “as a pocket bond,” “to indemnify endorsers.” When John asked his father to give him such a bond, according to her own statement, it was not then given; [148]*148nor docs it appear from ber testimony, that the father 'ever did give such a bond; whilst, on the other hand, the testimony of the other witnesses tends strongly to 1 show, that the bond, stated in the account, was for services rendered.
She says: “ Father gave him the bond with the understanding, that it was to be returned, when the bank debt was paid.” How did she know, that was the understanding ? Her testimony does, not disclose how she learned what was the understanding.
The counsel for appellee has well said: “How could a bond of this sort, given by the father to the son, possibly operate to indemnify the endorsers of the latter ? The father’s own prior endorsement of the note in bank would give them the benefit of his personal credit; or an indemnifying bond with a penalty, in the usual form, would do the same thing ; but how could a simple bond to John H. Campbell, payable to him, and held by him for his own use, operate as any kind of indemnity to his endorsers? “And how does the mere demand by the father affect the case ? Was not the demand * . * met with a refusal?” The mere demand is nothing, unless mot by some admission on the part of the obligee. And the refusal to surrender it, upon a demand made not as a matter of right, not claiming that it was a “pooled bond,” nor claiming that it had been satisfied, in fact, without making known any cause, or foundation for the demand, is no admission on the part of the obli-gee, that it should be delivered up; but on the contrary, the presumption is, that the obligee claimed, that the bond was justly due him; and therefore, as there was a dispute about it, the possession of the bond threw the burden of proof on the obligor to show, that he did not owe the amount of the bond.
The deposition of Mrs. Hammond was taken November 7, 1868, which was excepted to, on the ground that she was incompetent'to testify in behalf of her husband. The debt reported in her favor is really payable to her [149]*149husband. It is not a separate estate ; nor does she claim it as such. Allen C. Hammond, her husband, united with her in the suit, and as argued, his receipt would be a discharge. It is a chose in action, which he had the right to reduce into possession, therefore, as held in Rose & Co. et al. v. Brown et ux, 11 W. Va. 122, and Hill et ux. v. Proctor, 10 W. Va. 59, her evidence could not be received. But even if it could be received, it certainly failed to show, that the bond herein considered was the same she testified to ; and even the bond she speaks of as being given in a bank transaction, she says she was not present when-it was given; that she heard her father say, for what it was given (whether in her brother’s presence or not does not appear). But when asked: “State as well as you can now recollect, what your father did say this bond was given for?” answered : “I do not remember ; I cannot recollect the words he said.” “State the substance oí what he said.” Answered : “ I cannot state the substance of -what he said, except that he asked for the bond, and said it was not a debt he owed my brother John.” “ What did John H. Campbell reply to this statement of your father ?” Answered, “I don’t recollect.”
Certainly such testimony is loo weak to falsify the ex parte settlement. But John H. Campbell’s statement under oath, not excepted to, contradicts directly the statements of both Mrs. Wysong and Mrs. Hammond. And John J. Monroe was of “the impression,” that he was present, when the note was given, and says: “I cannot state the particulars now; but my understanding was, that it was given by Thomas Campbell for compensation for services of John H. Campbell up to that time.” In another deposition, he says: “I don’t think I was told, what the bond was given particularly for.”
The evidence is full and strong, that John H. Campbell’s services to his father were worth from $300.00 to $500.00per annum; and that those services were rendered from 1836, Mrs. Wysong says, 1840. The bond was [150]*150111 ade January 1,1846; and upon the evidence, it would seem to be small , pay for the many years of care and vexation, that such kind of service, as he rendered, necessarily threw upon him.
Thus impressed, I am of opinion, that the decree is right in allowing the credit of the $1,000.00 bond and the interest duo thereon.
As to the $300.00par annum, allowed for services from January 1, 1846. It is not necessary to encumber this opinion with citation of the full and weighty evidence showing, that the services were worth from $300.00 to $500.00 per annum, when no evidence is offered to falsify it.
It is claimed, that a part of this account was barred by the statute of limitations, and a portion of it was subsequent to the death of Thomas Campbell, who died in the autumn of 1852. Commissioner Stone in the err parte settlement report, on that point says: “I have had testimony before me as to the value of his said services during the time mentioned, and a number of disinterested persons, who know the nature of the services rendered by the said administrator, testified that $300.00 per an-num, was but a poor compensation for the services performed by him during said time.”
What was the nature of the testimony, the commissioner had before him on that-point, other than the oral testimony of the “disinterested persons,” can not now be known; the vouchers, then before the commissioner, have, like the commissioner and administrator themselves, by the lapse of time passed away. Those vouchers may have been of such a nature as to repel the statute of limitations, for aught we know; and now, after the lapse of over twenty years, it would be preposterous in us to lay aside the rule’ laid down for our guidance by the authorities cited, that we shall presume such vouchers did exist, and no change shall be made in the accounts, except such changes be established by satisfactory evidence.”
[151]*151The last altérnalo statement considered by the court is the Lewis Fry & Co.’s debt. The administrator was allowed a credit of that debt, §3,437.81. The bill charges that this amount was due on nóte given by John H. Campbell personally to Lewis Fry & Co. What Campbell’s answer on that point was, cannot now be known, as the answer is not produced before us; but from the statement made in the ex parte settlement, and the subsequent reports- of settlement, and the action of the court in forwarding the proceedings, it is reasonable to presume, that on this point the answer denied the. allegation, and put the parties upon proof of falsification. No proof is offered to falsify the item; whilst commissioner Stone’s report shows, that the administrator “in many instances gave his own notes for settlement of debts due from his father. These notes given by him for debts due from his father, and for money borrowed for his use previous to his death, and some, that were given soon after the death of his father and before he qualified as administrator, have been paid by the said John H. Campbell, and he has produced them among his other vouchers for disbursements made by him on account of said estate. Your commissioner has had evidence before him of manypersons livingin the neighborhood of the intestate and his administrator, who testified to the fact of having had dealings, with the intestate for several years previous to his death ; and that in making settlements the said John H. Campbell gave his own note in place of his father for the account due in said settlement in making purchases at public sales for the use of his said father. The said administrator also gave his own note, with security ; for, as before stated, his father attended to no business whatever for several years preceding his death ; of this your commissioner has been fully satisfied.”
Among the items allowed by commissioner Stone of that character is this Lewis Fry & Co.’s note. Now the same presumption of correctness of the settle[152]*152ment as conceded applied to the other items of the account, certainly should apply to this item, in the absence of any evidence tending to falsify it.
Commissioner Dayman in his report oí September 14, 1871, says, that “he submits the testimony relative to the sale of some negro slaves some time during the war (say 1862) by the administrator, John H. Campbell, through one Dr. Hammond, which amount of sale, 14.700.00, under direction of said administrator, said Hammond invested in bond, as will be seen by testimony herewith sent, No. 1,148. Numerous depositions taken by both sides are herewith respcctiully submitted.”
“Whore it is referred to a master to examine and report as to particular facts, or as to any’other matter, it is his duty to draw the conclusions from the evidence before him, and to report such conclusions only ; and it is irregular and improper to set forth the evidence in his report, without the special direction of the court,” 2 Dan’l Ch. PI. & Pr. 1299, n. 7, ed4th. “When a Master isdh’ectedto ascertain a fact, he must not content himself with stating these circumstances and leaving the court to draw its own conclusion, but he must draw the conclusion himself; and if he does not do so, either party is at liberty to except to the report for not having stated that conclusion, for which the party objecting contends,” Id. 1298, notes 4, 5.
The same author states, “that, even when .the evidence is such, that it is impossible to arrive at any degree of certainty upon it, yet, if it is sufficient to afford a reasonable ground of presumption one way, or the other, the master is bound to find in favor of such presumption. The master however is not bound to state inferences of law arising from the facts before him; and where facts are so clearly stated in a reportas necessarily to involve a particular consequence, it is for the court to act upon the facts so reported; and it would not be a proper ground of exceptions, that the master had omitted to [153]*153point out the consequence.”- Id. pp. 1298, 1299 and notes.
The order of reference made at the April term, 1868; by the court, in Campbell v. White, trustee, &c., rooted the commissioner to “take and settle the administration account of complainant as administrator of Thomas Campbell, deceased, that he ascertain and report the amounts advanced by complainant for the discharge of the liabilities of said estate beyond the personal assets that came into his hands, and whether the personalty has been fully administered, and if not, what amount available remains unadministered; that he ascertain and report the amount due to the defendants, respectively, on account of the trust claim in the bill named, if anything, charging the defendants with their proper proportion of any amounts found to have been advanced by complainant in discharge of liabilities of the estate beyond the personal assets administered, and any other matter by the commissioner deemed pertinent, or required by any of the parties.”
In regard to the negroes, as to whether they wore to be deemed personal assets in the hands of Campbell as administrator of the estate of Thomas Campbell, deceased, or the absolute property of Janney under the partition and assignment made by the commissioner, the commissioner fails to give his conclusion, as would have been proper for him to have done, but submits the testimony on that point to the court for it to draw the conclusion. The court might well have recommitted the report to the master commissioner on that point to have drawn his conclusion from the testimony and facts before him. But as Campbell alleges in his bill “that the slaves were'divided among the distributees, under an arrangement entered into by all of them, that each should pay his or her respective portion of the debts, over and above what the assets would cover,” which distribution of the slaves the Hammonds and Wysongs admit in their answer to the bill (Janney not answering, the bill was taken [154]*154for confessed as to her), the question involved is fairly-raised by the pleadings, and as Campbell’s testimony is somewhat variant from the written proof as to the char-’acterin which he took, and held, and finally disposed of the slaves, I deem this submission of the evidence and facts, in this instance, to the court, of that character deemed not improper, it being considered by the commissioner pertinent, and of that nature, which would enable the court readily to draw the conclusion.
From Campbell’s own showing by the allegata of his bill, “it was well understood, that the debts of the estate would largely exceed the personal assets other than the slaves left by the intestate, the slaves were divided among the distributees, under an arrangement,” &c., “that each should pay his or her respective portion of the debts, over and above what the assets would cover.” The commissioner shows by his report “the respective portion of each distributee of the debts, over and above what the assets would cover,” as follows: Amount due Campbell per account at July 1, 1871, $2,068.68f-. Amount due Campbell for one-fourth services rendered, 7 years. 7 months, at $300.00 per year, and interest $1,-180.15£. Amount due Campbell, per one-fourth note $1,000.00 and interest, $527.50. Total, $3,776.34$, which is the amount of indebtedness decreed in favor of Potterfield as administrator of John H. Campbell', deceased, against Mrs. O. S. Janney.
All the other distributees were permitted to hold the slaves assigned to them in the distribution made by the commissioners; and of course it was equal justice, that Mrs Janney should have her share of the slaves, or have credit allowed her for their actual value; yet the commissioner has allowed her nothing for them, whilst he holds her responsible for her proportion of the excess of indebtedness of Thomas Campbell’s estate to his administrator, and the court has decreed accordingly by its decree of December 30,1871.
John H. Campbell in his deposition tries to show, that [155]*155he took the slaves and disposed of them on account of debts due him personally from Dr. Janney, and inferentially for debts due the estate of Thomas Campbell. There is nothing in the record showing such debts due Thomas Campbell’s estate. But there is a receipt, dated January 18, 1860, given to Mrs. Orra S. Janney by said John H. Campbell as administrator of Thomas Campbell, deceased, for the following negroes : Harriet and her three children ; also negro girl Charity. In that receipt, Campbell says : “ I have this day received said negroes, as the surviving administrator, and upon a full settlement of the estate of Thomas Campbell, deceased, I will pass over to Orra S. Janney, as distributee of said estate, such negroes of hers as may not be required to pay the debts of the estate of Thomas Campbell, deceased.”
It appears further, that, as such administrator, he did sell the negroes at Richmond by Hammond, in 1862, for confederate money, which was invested in a registered bond of the State of Virginia (No. 1,148) by his instruction to Hammond, October 2, 1862, and Campbell received said bond from Hammond, October 21, 1862, for which he gave Hammond his own bond, to indemnify him, as the bond states.
Now in the face of all these facts it seems to me contrary to the principles of equity, to have confirmed the commissioner’s report as to its finding against Mrs. Jan-ney, without allowing her credit for the actual value of the slaves at the time they were sold, to-wit, October 2, 1862, by direction of John H. Campbell as administrator of the estate of Thomas Campbell, deceased.
I am therefore of opinion, that the court should have directed a recommittal of said report to the commissioner, as to Mrs. Janney, with instruction to him to ascertain the actual value of said slaves, at the time they were sold, to-wit, October 2, 1862, and to restate the account of John H. Campbell as administrator of the estate of Thomas Campbell, deceased, with Mrs. Orra S. Janney, [156]*156on the basis adopted by the commissioner, Fay man, in his report and confirmed by the decree of December 30, 1871, and now approved by this court, giving to said Orra S. Janney credit for the actual value of said slaves, as of October 2, 1862.
I am further of opinion, that the report of commissioner Fayman should have been confirmed, as the court did, in all other respects ; and that there is no error in the decree of December 30, 1871, as to those matters: but in so far as said decree confirmed said report as to Mrs. O. S. Janney, and decrees, that Truman W. Pot-terfield as administrator of J. H. Campbell, deceased, recover against O. S. Janney the sum of $3,776.34 with interest on $1,985.53, a part thereof, from July 1, 1871, until paid, and one-third the costs of these suits incurred by J. H. Campbell and his administrator, should be reversed ; and the said matter of costs as to her should be left open, until the final decree in these causes, as to her, is pronounced; and the appellee, O. S. Janney, must recover her costs in this' court against the said Truman W. Potterfield as administrator of said J. JT. Campbell, deceased, to be levied of the assets in his hands, or which may come into his hands as such administrator; and the canse must be remanded to the circuit court for the county of Jefferson, for such further proceedings therein there to be had, according to the principles settled in this opinion, and further according to the principles and rules governing.courts of equity.
Judges Raymond and Johnson concurred.
Decree Affirmed in Part and Eeversed in Part Cause KemaNded.