Page:Federal Reporter, 1st Series, Volume 10.djvu/65

 PULLIAU V. FULLIAM. 53 �PuLLUM V. PuLLiAM, Ex'r, and others. (Cireuit Court, W. D. Tennessee. February 12, 1881.) �1. Pkacticb— Reheaking — Intbrlocutort Decree. �A petition for rehearing is not necessary where there has been only an inter- locutory decree ordering an account ; nor ia it irregular to consider at the hear- ing, on exceptions to the master's report, all questions determined in the former decree. �2. Same— Bill bt Legatee fob ak Aocountino. �A specifie legatee, flling a bill for a general account of the administration, is not conflned to the particular errors alleged in the bill, as she might be if she were surcharging and falsifying a stated account. �S. EXBCUTOB — LiABLB for LoSS BY DEPRECIATION IN PlilCB FROM DeLAT OF �Sai,e— Estent of Ltabilitt. �An executor who delays for 14 and 20 months to sell cotton of the estate, for no other reason than a belief that it will advance in price, will be held for all losses by depreciation in price, although he may have dealt with his own cot- ton in the same way. He thereby become3 liable absolutely for the value of the cotton at the time he should have sold it, and will not be credited with a loss incurred by the failure of his factor, although the factor at the time was of good credit. �4. Bame— Liable for Intbrest on Specific Legacies. �Specifie legacies bear interest from the death of the testator. Therefore, where certain notes belonging to a wif e before her marriage were bequeathed spcciflcaDy to her by the husband's will, and certain other property was also given to her speciflcally, she is entitled to interest although the property was used by the executor for the pajTnent of debts which would have been lawful if there had been a deficiency of other assets. �5. Bame— Principles of Equity Governing the Liabilitt of Executor fob �Ikterest. �Upon an examination of the cases, the principles upon which a court of equity will charge an executor with interest on balances found against him are stated to be : (1) Where he keeps in his hands moneys which it is his duty to invest or pay to the persons entitled, he will be chargeable with interest when he makes interest, or is presumed to have done so, because he has used the fiind for himself, or mingled it with his own funds, or kept it idle during an unnccessary delay in settling his accounts. (2) He will not be chargeable with interest on the theory of a quasi criminal penalty for a breach of trust. (3) The presumption that lie lias made interest does not arise where no funds, as a fact, come into his hands, or were inimediately paid out in good faith for a purpose erroneously supposed to be lawful. (4) What is to be deemed an un- necessary retention of funds is a question of fact, depending upon the circum- stances of each case ; but the court will not act on mere inferences, and the balances retained must be to a considerable or substantial amount compared with the whole estate. Ileld, therefore, where the executor was chargea by the mas- tcr with losses on sales of cotton incurred by his negligent delay in selling it, and for money paid to a crediter after the claim was barred by the special stat- ute of limitations in favor of decedcnt's estates, that he was not, on the facts of thci case, chargeable with interest on these sums. Ueld, also, that he was not chargeable with interest on a small balance of $500 used by him in paying his own debts, the estate amounting to as much as $30,000, and it appearing that ��� �