Page:Federal Reporter, 1st Series, Volume 10.djvu/73

 PULLIAM V. PnLLIAM. 61 �charged with a balance in his hands, or that should have been in his hands on the theory of the report, amounting to $16,538.45. If in- terest were charged on this sum from the date of the executor's settle- ment in the county court to the date of the master's report at 6 per cent., the usual rate in this state, it would be $7,905.37, making altogether, without the lands, $24,443.82, — sufficient to pay the plain- tiff and leave a surplus for the residuary legatees of $3,962.44; and if interest were charged only from the filing of the bill to the date of the master's report, it would be $3,969.23, making altogether, without the lands, $20,507.68, — sufficient to pay the plaintili and leave a balance of $26.30. �Analyzing this principal sum of $16,538.45 charged against the executer it will be found partly made up of the $9,246.02 paid to his brother, Joel L. Pulliam, or, as the proof shows, collected on the notes given in the will to the plaintiff by Joel L, Pulliam himself in his capacity of attorney for the executor, and by him retained, with the consent of the executor, and applied to the payment of his claims against the testator before that time barred by the statute of limita- tions in favor of dead men's estates. It never actually came into the hands of the executor. He was not a trustee for investment ; he never used it as his own, or mingled it with his own funds, or made any inter- est or profit with it in trade or otherwise; neither did he keep it idle, nor refuse to account for it. He carried it into his accounts, and by his vouchers showed what had become of it when he settled with the county court. He paid it on a debt already determined in this case to have been valid, except that it was barred as presented too late under the statute; but he and the crediter had sought to save this bar by pursuing a statutory mode of saving it, whioh failed because they did not strictly follow the statute. The payment must, therefore, be held to have been made in good faith and under a mistaken view of his liability to make it. �Another part of the principal sum is the $6,730.35, losses on cotton. It never came into his hands at all, and it is apparent he bas never used it or kept it idle or mingled it with his own funds. Briefly, it may be stated that these losess consist of increased value charged against the executor because of delay in selling the cotton, and failure to col- lect for sales made by Trotter, the commission merchant, who became bankrupt. It cannot be said that there was any concealment about this cotton. The settlement with the county court does not deal with the subjectwith that fullness and candor that should have been used ��� �