Green, Judge:
. The clearest mode of determining the numerous legal questions necessary to he decided in order to determine the decree, which should be entered by this Court in this cause, it seems to me, is to consider in their order the legal errors, which have been committed by James F. Watts and John D. Kincaid as executors of Michael Hunger and as trustees of William D. Littlepage, and also those committed by James F. Watts as committee of William I). Littlepage, and the effect, which such errors ought to have produced in the settlement of the accounts of these executors and trustees and of the said committee.
The first error committed by these executors was made on December 5, 1859, within less than three months after they qualified as such executors, in that they improperly sold to James F. Watts, one of the executors of Michael B linger, deceased, a tract of land of 774 acres in Greenbrier county for the sum of $18,854.60. By the will the executors were directed to sell this tract of land. But they committed an obvious breach of their trust as executors, when they sold it to one of themselves. Ko person can consistently occupy the two positions of seller and purchaser. Of course the fact that they as executors of Michael B unger conveyed this tract of land to one Samuel B. McOlintic, who on the same day conveyed it to James F. Watts, one of the executors, does not in the least degree change the case. For it is admitted that James F.Watts, one of the executors, was the purchaser, and that it was conveyed to Samuel D. McOlintic and by him to James F. Watts as a mode of transferring the title from the executors to James F. Watts one of the executors. Their mode of transacting this- business only shows, that they were unconscious that they were doing any wrong or committing any breach of trust in selling a farm of their intestate to one of their own number. But that it was a breach of trust is indisputable. In the case of Newcomb, et al v. Brooks, et al, 16 W. Va. 83 point 7 of syllabus, this Court decided: “When there are several fiduciaries one can not purchase of [203]*203the others, hut such a purchase can be avoided at the option of the parties to whom such fiduciary relation is held. Any one of the persons, to whom such fiduciary relation is held may avoid such a purchase so far as his interest is concerned, though all the others standing in the same relation to the fiduciaries are content that the same shall stand.” On pages 70 and 71 very many authorities are cited to sustain this proposition, and i't must be regarded as unquestionably law.
Any one of the children of Michael Bunger had a perfect right, had he or she chosen, to have this sale set aside, so far ás his or her interest in the land was concerned, and so had Wm. I). Littlepage his grandson or his committee; but none of them have chosen to do so, and the sale was not void but only voidable. The bill in this cause does not ask to have this sale, so far as the interest of Wm. D. Littlepage in the land is concerned, set aside, but on the contrary it is throughout the pleadings and all the proceedings in this cause treated as a valid sale. It must therefore be regarded as such; and this error of the executors of Michael Bunger can therefore have no effect upon any of the settlements of the accounts of any of the fiduciaries in this cause. The next error committed by the executors of Michael Bunger is, that they did not comply with the law which required them “to furnish a statement of all the money, which they had received or become chargeable with or had disbursed within one year from the date of the order conferring their authority or within any succeeding year together with the vouchers for such disbursements within six months after the end of every such year to a commissioner of the court wherein the order was made conferring their authority.” (Code of Virginia ch. 132 sec. 7.) And the law fixed a penalty for a failure to perform their duty in this respect, the penalty being if they “should wholly fail to lay before such commissioner a statement of receipts for any year within six months after its expiration, they should have no compensation whatever for their services during said year” with certain exceptions not necessary to be stated, as they have no application to the case we are considering. (Code of Virginia ch. 132 sec. 8.)
It is claimed however by the appellee’s counsel that the [204]*204executors of Michael B unger did not fail for eighteen months, after they qualified as such, that is after the September term. 1859 "of the county court of Greenbrier, to produce their vouchers before a commissioner of said court for a settlement of their executorial accounts; and this is supposed to be shown first by the fact, that about thirteen months after they qualified these executors caused on their motion the county court of Greenbrier to make the order of October 22, 1860, directing their executorial accounts to be referred to James Withrow commissioner for settlement, and that it is reasonable to suppose, that they produced their vouchers before him for settlement within five months thereafter, especially as he testified that he was in the habit, even when-the vouchers of a personal representative were produced before him within six months after the expiration of the first year, of postponing the settlement for two years after the qualification of the personal representative, if he thought a full and final settlement .could then be made — and he was inclined to think that was done in this case, butthis opinion was based on no recollection of this as a fact but simply on his habit in such cases and on the fact, that one of the executors, he remembers, frequently consulted him about the estate.
. On the other hand it appears, that commissioner' Withrow’s first report was not made till after January 1, 1862, that is, till more than twenty-seven months after these executors qualified, and in his report it does not appear, when he commenced the settlement of this account, or when the executors first laid before him their vouchers for such settlement. Under these circumstances under the statute-law above referred to these executors would be entitled to no compensation for any services rendered during the first year after they qualified, that is, before some time probably about September 22, 1860.
The account shows, that the whole amount received by the executors during this first year was $6,271.61, the commission on which at five per cent, ivas $313.58 which ought not to have been allowed these executors, it having been forfeited under the statute above quoted. But commissioner Withrow properly allowed the executors their commissions for the second year and for three months thereafter up to January 1, 1862, as their vouchers, on which this first settlement was [205]*205based, must have been filed with the commissioner within less than six months after the close of the second year, for the settlement was completed before thattime. Commissioner McWhorter in the settlement made in this cause allowed these executors commission not only for the second year but for the first year also; because, he says, “ it was probably more the fault of commissioner Withrow than of the execu-toi’s, that the annual settlements were not made. The executors stated the matter in time by having the same referred to a commissioner for settlement. The commissioner can not now say but that their papers were placed in the hands of commissioner Withrow at the proper time to save their commissions, and the executors are both dead, so that they can make no statement in regard to it.”
In this he erred. It was the object of secs. 7 and 8 of ch. 182 of the Code of Virginia to have an ex parte settlement of the accounts of fiduciaries made once a year. It such settlement once a year was not made, and it resulted from the failure of the fiduciary “to furnish a commissioner with a statement of all the money, which he had received or become chargeable with or had disbursed within one year from the date of the order confirming his authority, within six months after the end of the year, then he is to have no compensation whatever for his services during this past year.” If no such settlement is made as required, the presumption must be, that it arose from the failure of the fiduciary to tur-nish in proper time this statement and his vouchers, and he must show satisfactorily, that he did in fact furnish such statement and vouchers to the commissioner. If he shows this, the failure of the commissioner to make up and return his settlement till after the expiration of the second year would under these sections of the Code of Virginia not forfeit his commission. But unless he does show, that he furnished this statement and his vouchers within eighteen months, then he forfeits his commissions on the amounts received during the past year.
Did the executors of Michael Bunger show satisfactorily, that they furnished this statement and their vouchers to commissioner Withrow within eighteen months after they qualified ? It seems to me they did not. It is true, they had [206]*206had an order made by the county court of Greenbrier county, at the October term, 1864, directing them to settle their accounts before commissioner Withrow. This order was made only thirteen months after they qualified. But it seems to meto furnish but'very weak evidence, that they submitted their vouchers to commissioner Withrow within eighteen months after they qualified. There was no sort of necessity for the making of any such order. They could as well have submitted their vouchers to commissioner Withrow for settlement without having such an order made as after the making of it; and the obtaining of this unless order can have certainly very little weight in deciding, when in point of fact they did submit their vouchors to commissioner Withrow. The only other evidence tending in any degree to show, that in point of fact they submitted their vouchers to commissioner Withrow within eighteen months after their qualification as such executors, is that of commissioner Withrow, who testifies, that he has no recollection, when it was done, but thinks it probable, it was done in proper time, as one of them frequently' asked his advice, and he was in the habit, when vouchers were submitted to him in proper time, to put ofi the settling of the accounts until the expiration of the second year, if by so doing he could make one final settlement instead of two settlements. This, it seems to me, is insufficient to prove, that these vouchers were produced before him within eighteen months after the qualification of these executors. All that it proves is, that perhaps they were and perhaps they were not; and as the burden of proving, that they were, was on the executors, they have failed to meet this burden, and the commissions on their receipts for the first year wére forfeited and ought not to have been allowed to them.
Under the circumstances of this case I attach but little importance in reaching a conclusion on this point to the fact, that this suit was not instituted till more than twenty years after the settlement of the exporte, account by the executors and until after the death of both of the executors. Itis true that delay in the assertion of a right, unless satisfactorily explained, operates in equity as evidence of assent, acquiescence or waiver; and laches and neglect are always discountenanced [207]*207by a court of equity. (Trader v. Jarvis, 23 W. Va. 108; Pusey v. Gardner, 21 W. Va. 469; Doggett v. Helmn, 17 Grat. 96.) How, while it is true, that a suit could have been brought at any time by the next friend of Lit-tlepage to surcharge and falsify this ex parte settlement of the executors because of the allowance of this commission, (Bird’s Committee v. Bird, 21 Grat. 712,) yet an infant or lunatic ought not to be prejudiced because of the failure of a next friend to institute'such a suit, if such suit is brought promptly after there is some one, upon whom the law imposes the obligation to guard the interest of the infant or lunatic. In this cause the suit was brought promptly after the appointment of the plaintiff as committee of William D. Littlepage. These facts account satisfactorily for the delay in ttie institution of this suit.
The amount of the commissions improperly allowed the executors was $313.58, and the interest on this from the close of the first year, October 27, 1860 till January 1,1862, when the executorial account was finally closed, is $12.75, making the error in this first account of commissions in favor of the executors $326.33. And as William D. Littlepage was entitled to one sixth of this amount, the true amount due him on January 1, 1862, by these executors principal and interest was $3,442.82 instead of $3,388.43, according to the account of the commissioner. Trom this is to be deducted the amount paid out for the tuition and other expenses of Littlepage up to January 1, 1862, amounting to $162.46, leaving a balance of $3,280.36 as the true amount, which on January 1, 1862 went in to the hands of James IP. Watts and J. D. Kincaid as trustees of W. D. .Littlepage..
In making this statement I have corrected no error in commissioner Withrow’s account except the improper allowance of commissions to the executors, as no other error was insisted on in the argument of counsel. The other errors claimed in the petition were trifling in amount, (if they really were errors, which they were not.. It was no error in commissioner Withrow not to charge these executors with the beds, bedsteads,-bedding and library mentioned in the will.) They were bequeathed by the will to testator’s daughters and William D. Littlepage; and the evidence shows, that Wil[208]*208liam D. Littlepage received in kind his one sixth of these articles. These trustees of Littlepage having in their hands this sum of $3,280.36 on January 1, 1862, instead of making annual settlement before a commissioner, as required by law, made no settlement at all till August 4, 1868, when Little-page arrived at the age of twenty-one years. On the principles we have laid down they were entitled tono commissions in this settlement made before commissioner Walker, except a commission of 5 per cent, on the interest received by them shortly prior to August 4,1868. This amount does not distinctly appear, but we may assume it to have been interest on the sum of $3,280.36, which was in their hands, for the year 1867 and up to August 4,1868, a little over nineteen months, or $14.02 instead of $65.12, the amount of commissions allowed them by commissioner Walker. In allowing this commission for receipt of interest from January 1, 1877,1 assume that these trustees presented their vouchers to the commissioner within eighteen months after January 1,1867, that is before July 1, 1868, which is in a high degree probable, as the account was closed about a month after that time.
This account shows, that these trustees between January 1, 1862, and August 4, 1868, that is, for five years and seven months, spent for the education and maintainance of William D. Littlepage including commissioner’s fees for settling the accounts $13.75 and' taxes, which amounted to $58.22, $1,208.22. Theinterestonthefundsinthehandsofthetrustees amounted during this time to $1,286.82. So thatthe intereston the funds in the hands ofthetrusteesjust about compensates the trustees and pays for the tuition and maintenance of Little-page leaving his principal undiminished. The true balance in the hands of these trustees on August 4, 1868 was the original principal sum, which came into their hands January 1, 1862, that is, $3,280.36 and $93.64 of interest. Commissioner Walker reports the amount in their hands at that time as $26.00. The difference is to be accounted for by the fact that commissioner Walker allowed, as I have shown-, too much commission to the trustees by $40.20, and did- not charge them with sufficient interest, having charged them with the interest on $3,182.91 only, which was the principal in the hands of the executors for Littlepage, when their exe-[209]*209cutorial accounts were closed, January 1, 1862. But there was in the hands of these executors for Littlepage $48.06 interest, and when it passed from these executors to them as' trustees, all of it should be regarded as principal; and therefore the true amount of principal in their hands was even according to commissioner Withrow’s account $43.00 more than commissioner Walker calculated interest upon. But I have shown, that there was an error in commissioner With-row’s account arising from allowing the executors too much commission, and that the true balance against them in favor of Littlepage was $3,280.36. Calculating the interest on this instead of on $3,182.91, as commissioner Walker did, would make a difference in the interest charged against these trustees of $27.44.
On September 6, 1869, these trustees and William D. Lit-tlepage and his father L. B. Littlepage executed an agreement under their hands and seals, which was regarded by commissioner Withrow as binding on the parties in the next settlement of James F. Watts as trustee and committee of William D. Littlepage, of date January 28, 1876. Did he err in treating this agreement as binding? On July 13, 1863, James F. Watts and James I). Kincaid, executors of Michael Bunger, presented an ex parte petition to Robert Hudson, the judge of Greenbrier county, Virginia. In this petition they simply set out that Michael Bunger by his will had appointed them executors pf his will and also trustees for Wm. D. Lit-tlepage “ to hold the fund given him, until he should attain the age of twenty-five years, the interest to be expended upon his education; that he was, they thought, about fourteen years of age, and they found it impossible to make any productive investment of the capital coming to him upon good security except in government stocks; that they had on hand $3,100.00 or $3,200.00 to be invested; and they asked an order authorizing them to invest said runds in Confederate stocks or such other public stock as the judge might prefer.” The judge in vacation entered an order on July 13, 1863, whereby he gave them leave “ to invest the money in their hands in their fiduciary character in interest-bearing bonds or certificates of the Confederate States or of the State of Virginia.” There is no proof that any such investment in [210]*210their fiduciary character was ever made; but if there had been it would not have varied the case.
In the case of Crickard, Executor v. Crickard’s Legatees, 25 Grat. 410, approved by this Court in Mc Clure, Administrator v. Johnson et al., 14 W. Va. 448 it w'as decided, “ that to authorize an investment by a fiduciary under an order of a judge in Confederate bonds, the act of the Virginia Legislature of March 5, 1868, required that these three conditions should concur: First. The money must be in the hands of the fiduciary. Second. It must have been received in the due exercise of his trust. Third. For some cause he must be unable to pay it over to the party entitled to it; and if they do not all exist, the order of the court or judge is null, and the fiduciary is responsible for the money.”
In this case it is clear that neither condition one nor condition two existed; and this ex parte order of Judge Hudson was null and void. First, there were no Confederate notes or any other money in the hands of these fiduciaries belonging to Wm. D. Littlepage. And second, if it is possible to regard any Confederate notes or other money which they then had as having been received by them as executors of Michael Bunger or as trustees of W. D. Littlepage, then such Confederate notes were clearly received not in the due exercise of their trust but in clear violation of their duty as trustees. To show that this must be so, it is only necessary to state the facts briefly. These trustees were James F. Watts and James D. Kincaid; if they ever did receive this money at all, they received it from James F. Watts as the price of a tract of land, which was improperly sold by them to him. And the account, which they settled, showed that they received the whole of this money on or prior to October 27, 1861. It is not even pretended that the identical money received by them had been kept on hand, some of it for more than two years, and all of it for nearly two years, when they applied for leave to invest it in Confederate bonds. I presume the truth is that in point of fact this money was not collected by these trustees of James F. Watts either in Confederate notes or in any other sort of money. It was due from him to the trustees, no sort of money having been paid. It -was simply charged up to the trustees, as if it had been [211]*211paid, one of them being responsible for it. But clearly so much of this money as belonged to William H. Littlepage ought not to have been collected by these trustees; for when collected it was the duty of the trustees to at once lend it out; and if, as they say in this petition, they could not safely lend it out, why did they collect it, when it was already in the hands of James F. Watts and most amply secured by being a lieu on a tract of 774 acres of land worth more than $13,000.00 ? If any money was ever invested by these trustees in their name as trustees of William I). Littlepage, of which there is no proof, the investment must have been of Confederate notes of James F. Watts individually, audit was only a means of saving himself from loss by reason of the depreciation of Confederate money of his own in his hands, and imposing this loss upon William I). Littlepage.
His counsel does not contend, that under the authorities we have citted James F. Watts and James D. Kincaid had any authority by virtue of this order of Judge Hudson to make any investment in Confederate bonds, and admits that they would despite this order be bound to account for all the money of Wm. H. Littlepage that might come into their hands. But it is claimed that this was a subject of controversy in 1869, and that Wm. D. Littlepage, on September 6, 1869, when he was more than twenty-two years- of age, agreed, as a compromise, that because of this loss by reason of the depreciation of Confederate bonds and their ultimately becoming valueless, Wm. D. Littlepage would abate of the principal one-third of his demand against his trustees, Watts and Kincaid, and that they should pay interest on the full amount of what was due only up to October 3,1869, at which time the principal was to be thus abated. Was this a valid contract ? There was certainly no consideration to sustain such an agreement, unless we are to regard this abatement as a compromise between Wm. L. Littlepage and his trustees of a controversy existing between them and him at that time. They claimed, that they were under no obligation to pay to him any part of the funds, which had come into their hands as trustees under the will of Michael Bunger, and it was, their counsel claimed, agreed, that they would pay two thirds of the principal which had come into their hands, and all [212]*212the interest, if he would surrender his claim to any more, and by this agreement he assented to this proposition. Now what were the relations of the parties to each other, when this compromise is claimed to have been made ? They occupied towards him the relation of trustees and had charge and control of all of his property, and they refused to pay anything to him for his support. In this agreement it is recited, that they as executors of Michael Bunger and as his trustees had invested about the amount they owed him in a bond of the Confederate States for Wm. D. Littlepage. There is no proof that any such investment was ever made by them as trustees of Wm. I). Littlepage, or even in their own names, except that contained on the face of this agreement, which was of course information given by them. Now in point of fact all the funds of Wm. D. Littlepage were safely invested on an indebtedness of Jamos I). Watts, perfectly secured on a farm of 744 acres, worth twice the amount of the fund due to W. L. Littlepage. This indebtedness of Watts had been simply charged up as an indebtedness of these -trustees, which they claimed they had discharged by this investment, which they made in a Confederate bond long afterwards, when a Confederate bond could have been procured at a very small fraction of its nominal value, they having greatly depreciated before the investment is pretended to have been made.
It is very questionable upon the principles laid down in Newcomb et al. v. Brooks et al., 16 W. Va. 32, whether such an agreement as that between these trustees and their cestui que trust, made while this relation existed between them, could be sustained, even had the cestui que trust been one who was in all respects capable to enter into any sort of contract with third persons. It certainly could not be unheld, unless he was made perfectly aware of all the facts by his trustees, before he made the contract with them. Such dealings between trustees and their cestuique would certainly be scrutinized by a court of equity and could not be sustained unless it was accompanied with uberrima fides. But in this case, it seems to me, a court of equity would not hesitate to regard this agreement as voidable at the pleasure of William D. Little-page. His grandfather by his will, written when William D. [213]*213Litllepage was about nine years old, provided, that all his property should be uuder the control and management of trustees, till he should attain the age of twenty-five years. This provision was made, because the boy was weak of mind. The will provided, that the interest of what was in their’ hands, or so much thereof as was necessary, should be paid out by his trustees for his support and education annually. The will further provided, “ that in case he should turn out a promising and sprightly youth, then he should be given a liberal education out of his portion of the estate.” This shows, that, though the child was of weak mind, his grandfather had hopes, that he would improve and become a 'promising and. sprightly youth, and if this should fortunately be the case he wished him to be liberally educated, even though a portion of the principal of his estate had to be expended in giving him this liberal education. But it turned out, that his mind remained always weak, and he remained a remarkably dull and weak boy incapable of learning even geography, and his education was necessarily confined to reading, writing and arithmetic, which he learned with difficulty. While not an idiot ho was very weak minded, and, when ho grew up, was incapable oí understanding or attending to any business of importance, or which was at all complicated. This agreement of September 6, 1869, I am satisfied from the evidence, was a character of business far too complicated and important for him to understand; and that this was the view of these trustees is obvious on the face of the agreement. It was obviously for this reason, that they made not only him but his father a party to this agreement. He was then twenty-two years old,- and his father would have had nothing more to do wdth this agreement than any other stranger, had not these trustees felt, that William D. Littlepage had not himself sufficient mind to render him capable of understanding this agreement and was mentally incapable of executing it. This was obviously the reason for making his father a party and procuring his approval. But his approval could give no validity to the agreement, which the trustees felt would otherwise be invalid.
After making this agreement these trustees continued to manage the estate of William D. Littlepage because of [214]*214his imbecility, till he arrived at the age of twenty-five years, that is, till August 4, 1872, and in less than a year thereafter at the April term, 1873, the count}' court of Green-brier being satisfied upon evidence, that William D. Lit-tlepage was non compos mentis, James F. Watts one of these trustees was appointed his committee to take charge of Ins person and estate, and he accepted the position. As the evidence is clear, that his mind did not grow either better or worse, what stronger evidence of his incapacity to make this agreement could he furnished than this act of one of his trustees, a party to this agreement. This agreement, was I think, clearly not binding upon him; and commissioner Withrow, who was a witness to it and knew the circumstances, under which it was executed, erred when in his settlement of January 28, 1870, of the accounts of James F. Watts, trustee and committee of Wm. D. Littlepage, he treated this agreement as binding on him. This account should have been settled just as though this agreement had never been executed by Wm. D. Littlepage. The accounts were settled with Watts alone as trustee, because, the commissioner states in this report, Watts admitted that all the funds of Wm. I). Littlepage were at all times in his hands,' and he did not claim that his intestate, James D. Kincaid, was responsible for any portion of the estate of Wm. 1). Littlepage, unless it was as his security because of his having been co-trustee with him, Watts.
This account was erroneous not only in this and in assuming the settlement made by Commissioner Walker to be correct, but also in allowing James F. Watts, trustee and committee, a commission on all moneys received by him, which had not been allowed in previous accounts, though he had settled no account for eight years. The account is brought up to October 24, 1875. The report having been made January 28, 1876. But before returning this report it was continued till February 21, 1876; and in this additional report he allowed to James F. Watts commission on the principal sum, $2,000.00, under this agreement, that is to say $100.00. There should have been, upon the principles we have laid down, no commission allowed to James F. Watts, except on his receipts during a period of not more than eighteen months [215]*215prior to October 24,1875. The commission on these receipts would have been only $9.00. All the rest of his commissions are forfeited, because of his utter failure without excuse to present liis vouchers to a commissioner for settlement once a year. The commissions actually allowed him in this account amounted to $140.77.
But there were other and more serious errors in this report. It allows to James F. Watts, as committee of W. D. Little-page, a credit of $1,550.00 cash paid to James I). Kincaid for a ti'act of land bought of him for W. D. Littlepage, and conveyed October 20, 1873, to James F. Watts, committee of W. D. Littlepage. How as there was no authority ever obtained of any court for this committee to make this investment of the funds of W. D. Littlepage, an idiot, in real estate, Watts as such committee had no authority to purchase this tract of land. It can not be regarded therefore as a purchase by him as committee of W. D. Littlepage, but must bo regarded as a purchase by him individually; and he ought not to have been allowed this credit of $1,550.00. I deem it unnecessary to make further comment on this ex parte report. The purchase of this land by James F. Watts, as committee of W. D. Littlepage, of his former co-trustee for $1,550.00, without any authority from any court to make such purchase and his subsequent sale and conveyance of this tract of land without any authority from any court to Mary- 0. Gabbertfor $1,212.00 taken in connection with his, Watts’s purchase of his testator’s tract of land of 774 acres of his co-executor said J. D. Kincaid, indicate a total disregard of his duties as a fiduciary, while his purchase of this 774 acres was, as we have seen,not absolutely void, but only voidable, his purchase of this tract of Kincaid in his capacity of committee of W. D. Littlepage was absolutely void, so far as it purported to invest the funds of W. I). Littlepage in this laud; and it could only be operative as a purchase by himself as an individual. This tract of land being thus his individually, upon the re-sale of it to Mary C. Gabbert he became entitled to the whole of the purchase-money individually, and whatever part he did not collect, his personal representatives on his death became entitled to and are still entitled to, if it has not been paid.
We have seen, that the true balance in the hands of James [216]*216F. Watts and James D. Kineaid, trustees for Wm. I). Little-page, on August 4, 1868, was $3,280.31, of principal, and $93.64, of interest, the principal being the same as on Jánuary 1, 1862, and that they expended in his support and education somewhat less than the interest on his capital in their hands. The report of commissioner McWhorter in this cause shows, that between August 4, 1868, and the time when James F. Watts qualified as committee of W. D. Little-page, the April term of the county court of Greenbrier county, 1873, there was paid out by the trustees to and for W. L. Littlepage, $725.89. The interest on the principal in their hands, $3,280.36 during that time, from August 4,1868, to say April 4,1873, would be $918.50, to which add the interest in their hands, August4,1868, $93.64, and the total amount which went into the hands of James F. Watts, committee, would be $4,292.50, less $725.89, or $3,566.61, all of which must of course be treated as principal. It is admitted, that whatever was coming to W. L. Littlepage at any time was in the hands of James F. Watts; none of it being at any time in the hands of his co-trustee, Kincaid, and hence the balance due from these trustees April, 1873, $3,566.61, was the true amount, which then came into the hands of James F. Watts, committee, shortly after said Watts had sold to Mary C. Gab-bert the tract of 115 acres, which he as such committee had purchased as a residence for W. D. Littlepage and his family, without authority he purchased as such committee of Joseph F. Holcomb another small farm in Greenbrier county containing 93-f acres for the residence of Littlepage and his family. He paid for this farm $612.00 ; and a deed was made to him as such committee for said farm on November 8,1881. He had no authority from any court to invest any money in his hands as such committee in this or in any other land; and in the settlement of his accounts as such committee he can be allowed no credit for this $612.00 so paid. But he should be allowed a credit for the amount of a fair rent of both the farms while they were occupied by Littlepage.
The changes, which according to the views I have expressed must be made in the report of commissioner McWhorter, ar'e so numerous and fundamental, that I deem it much better to set aside all his reports and reverse the decree of April [217]*21726,1883, based upon them, and remand the cause to the circuit court of Greenbrier with directions to proceed with it according to the principles laid down in this opinion, and instead of expressing an opinion and acting on each of the exceptions to his account to give some additional instructions to be followed in settling the accounts of James F. Watts committee of William D. Littlepage, when the case shall be again in the circuit court of Greenbrier to be further proceeded with.
This account of said Watts, committee of Littlepage, should not be mixed up with the accounts of said Watts and and J. D. Kincaid, executors of Michael Bunger, nor with the accounts of said Watts and Kincaid, trustees of Littlepage; but the account of Watts, committee of Littlepage should commence on the day he qualified as such committee, and on that day he should be charged with $3,566.61 received from the trustees of Littlepage, or more correctly speaking with the amount, which was in his hands or came into his hands at the time he qualified as such committee. This amount when calculated on the principles we have laid down, as it must be, is believed to be $3,566.61 but it may be that some error may on the principles on which we have laid down hp,ve been made in these figures, and if so, and it can be pointed out to the court below, it should be corrected, but the principles we have laid down must be strictly followed in ascertaining this amount. In making this settlement the committee is not to be allowed or credited with any commission or compensation of any sort for any services rendered by him except a commission on moneys received by him as such committee between. July 28,1875, and January 28,1876, when he settled the only account he ever settled as such committee, all his other commissions being forfeited. The committee should be allowed no credit for the $1,550.00 paid to James I). Kincaid for the 115 acres purchased for William X>. Littlepage or for the $612.00 paid to Holcomb for the 93f acres of land purchased of him for William 1). Littlepage, these purchases having been unauthorized. But these two tracts of land must be treated as bought and sold by James F. Watts individually, and therefore, they being his lands, he is to be credited with the reasonable rent of said lands during the time [218]*218they wei’e occupied and used by said William D. Littlepage. As from the report of commissioner McWhorter in this cause it is obvious, that James F. Watts as committee of William D. Littlepage never made any legal investment of any of the funds of William £>. Littlepage in his hands, and that after crediting him with the rents of the lands of James F. Watts during the time Littlepage had the use of them and also with all payments made to Littlepage or to others for the support and maintenance of him and his family the funds in his hands increased, he spending including these reasonable rents less than the interest on the capital of William D. Littlepage, in the settlement oftlieaccountsof JamesF. Watts as committee they should be settled on the principles of a guardian’s account. The accounts are not always to be settled -on the principles on which a guardian’s account is to be settled ; but under the circumstances shown to exist in this case they ought to be so settled.
Under the circumstances which actually existed in the case of Bird’s Com. v. Bird, 21 Grat. 712, the Court properly decided, that the accounts of the committee were not to be settled on the principles of a guardian’s account. The Court in that case expressly based, its action in this respect on the particular circumstances of that .case.
In the case of Crigler’s Committee v. Alexander’s Executor, 38 Grat. 681, et seq., Judge Staples discusses the manner, in which the accounts of committees should be settled. He says :
“ The next question is, whether in stating and settling the accounts of the intestate as committee he is to be charged with compound interest upon the balance in his hands. -It is insisted this ought to be done by analogy to the rule governing in the settlement of guardians’ accounts. It is sufficient to say that the liability of guardians for compound interest grows out of the peculiar provisions of our statutes on that subject. See Code of 1873, § 10, ch. 124, and Garrett v. Carr, 1 Rob. R. 196.
“ These provisions have never been considered as applying to other trustees.
“ The accounts of a committee of an insane person are to be settled upon principles governing in the settlement of accounts of other fiduciaries having the control of trust-funds. [219]*219They are not chargeable with compound interest except under very peculiar circumstances. When there is an express trust for accumulating, and the trustee instead of investing retains the funds in his own hands, or when he employs the money in his own business and refuses to account for the profits, he may be charged with compound interest or as a measure of damages for undiscovered profits. See 1 Perry on Trusts, secs. 470-474; Barney v. Sanders, 16 How. 535; Hill on Trustees 571, note.
“Much of the reasoning of Judge Allen in Garrett v. Carr, (1 Rob. 196) will apply as well to committees of insane persons as to guardians, and would seem to indicate that in some instances all classes of trustees, except executors and administrators, may be chargeable with compound interest even upon a mere failure to invest. See page 215.
“All that can be said therefore is, that no inflexible nile .can belaid down on the subject which would apply to all eases. Generally it is conceded that a trustee and other fiduciaries, except a guardian, are liable for single interest only. This doctrine seems to be settled by a great variety of authorities English and American. 1 Perry on Trusts, secs. 470-474; Barney v. Saunders, 16 How. 535 ; Hill on Trustees 571, note.”
In that case, as the unexpended balances in the hands of the trustee were generally small sums; and it did not appear, that he derived any profit from them, and it was regarded as a case of mere neglect to invest the money, he was therefore held under these circumstances chargeable only with single interest.
In this case the ex parte reports in the record and the report of commissioner McWhorter together with the evidence show, that William I). Littlepage and his family needed all the interest on his capital to support himself and his family, and that it was not all expended in such support by a good deal. The whole amount of expenditures by James E. Watts while acting as committee in the support of William I). Littlepage and his family was less than $350.00 in cash in ten years. This with the use of a very small quantity of land was all that was furnished by said Watts to said Littlepage and his family for their support. Something over $70.00 was [220]*220credited for taxes paid. Most of this was, I presume, paid for taxes on land not owned hy Littlepage, hut which really, as we have seen, belonged to James F. Watts individually. Whatever taxes were paid on these two tracts of land should not be allowed as credits to James F. Watts, committee,in the settling of his accounts; nor should any credits he allowed him for cash paid for the drawing of the deeds for said land or for recording them. I can not of course say what the rents of lands were worth, the use of which was furnished by Watts to Littlepage and his family; hut it is evident from the prices paid for them that such rents and the average of some $35.00 ayear paid in cash was a very meagre support of Little-page and his family; and as there was interest in the hands of the committee to have furnished them a better 'support; and as the whole of this interest after retaining for himself a fair reiit for the lands, the use of which he furnished to Little-page, ought to have been expended in the support of Little-page and his family; and as this was not done, but a portion of the interest was retained in the hands of the committee, it seems to me clear, that on this state of facts he ought to be charged with interest on the balance of interest, which was in his hands from year to year, that is, .with compound interest, as in the settlement of a guardian’s account, if we regard the law governing the subject as correctly laid down in the above quotation from Judge Staple’s opinion. lain not prepared to say, that he has stated the law in- all respects correctly ; but I am prepared to say, that the law can not he regarded as more liberal to committees in their settlements than it is stated by him; and indeed my impression is, that the law as he states it, is too liberal to committees, and that there is a difference in some instances between the principles, on which their settlement should be made and that of some other trustees, and that in some cases committees would be charged with compound interest, as a guardian would be, when under similar circumstances some other trustees would not he so charged. But I do not deem it necessary in this case to express any opinion as to how the accounts of committees of lunatics should generally be settled, whether on the principles governing the settlement of guardians’ accounts or not The circumstances we have pointed out in this case justify [221]*221and require us even on the law as laid down by Judge Staples above to direct that the accounts oí James F. Watts, as committee, should he settled upon the piúnciples ot a guardian’s account. Oí course no commissions should be allowed Watts as committee, they having been forfeited by his failure to settle his accounts as such committee.
As it is obvious that his estate will upon the settlement to he made under the principles laid down in this opinion he indebted to the present committee of William D. Littlepage in an amount considerably greater than that ascertained by the decree of the circuit court of Greenbrier, it is obvious, that this decree was prejudicial to the appellant, $nd that he is entitled to his costs in this Court.
The decree of the circuit court of Greenbrier county of April 26, 1883, must be set aside, reversed and annulled, and the appellant must recover ofthe appellees, A. B. Watts and R. W. Hill, administrators of James F. Watts deceased, his costs in this Court expended ; and this case must be remanded to the circuit court of Greenbrier county to have taken all the proper accounts in this cause, and to proceed further with this cause according to the principles laid down in'this opinion and further according to the principles governing courts of equity.
EeveRsbd. Remanded.