Page:Federal Reporter, 1st Series, Volume 10.djvu/78

 66 FBDEBAL BBFOBXSB. �fidelity and integrity. The court states the rule as to interest to be that "he bas the right to continue to hold the residue of the funds for the purpose of paying other debts, and that be could not be chargeable witb interest unless it should be shown affirmatively that be converted it to bis own use, or that he made interest upon it, or that he faiied through negligence to apply it in payment of debts." He was not charged with interest. In Harrison v. Henderson, 1 Heisk. 315, the question of interest was not discussed, but the exec- utors, under circ^^Instances sbowing fraud upon the legatees in the collusive sale of a tract of land for less than its value, which one of them who had resigned bougbt, and immediately resold for |1,000 profit, were charged with the priee of the land, witb interest, and the $1,000 profit, I infer, without interest; they were also charged witb "all the assets received or that might have been received with proper diligence, " but, I infer, without interest, except as to the land above mentioned. In Morris v. Morris, 9 Heisk. 815, the war prevented the administrator from collecting the assets, but he was charged after the close of the war with all debts lost to the estate through the fault of the administrator in not exercising a rcasonable diligence in their collection, but interest was refused. In German v, German, 7 Cold. 180, the executer had a balance of $353.80, out of a fund disbursed amounting to over $3,000, and the court reversed the chancellor, who charged him with interest, on the ground that he might retain it to pay reasonable expanses of administration. In Williford v. Watson, 14 Heisk. 476, no question of interest arose, but the court refused to charge the loss of the fund, by the breaking of a bank, on the admin- istrator, although he retained it after the time for distribution arrived, because the distributees bad not tendered refunding bonds under the Code. �Of these casas Jones v. Ward and Torbett v. McReynolds, and per- baps others, are very strongly against the executor in this case, and would probably justify us in charging him with interest on this whole sum. But I think they are exceptional cases, outside the current of authority in Tennessee and elsewhere, and they have not been, so far as I can find, followed in their barsh application of the rule of inter- est against executors. They are neither of them, strictly speaking, precedents for this case; and, acting on the conceded principle that each case is governed by its own circumstanees, there are such essential differences of fact that I am of opinion that even a court, authoritatively bound by them, would not apply them to a case like this. There is one consideration of this subject which seems to me ��� �