Page:Federal Reporter, 1st Series, Volume 10.djvu/81

 PDLLIAM V. PCLLIAM. 69 �from the time he should have paid the money, from its receipt, oi from the date of conversion, according to circumstances ; but will sometimes be excused, where the other side is in fault, until demanrt made or bill filed. If, however, he is, on prinoiple, iiot chargeablo with interest, it will not be reckoned against him until, by a decree confirming the report, bis accounts have been settled and the aniount he is to pay ascertained. �I feel constrained, therefore, to hold, that, notwithstanding I be- lieve from the facts of this case the executor here has deserted his trust by turning it over to bis brother, in whose sole interest he seems to be acting even now by taking his part in this litigation, and that they both have persistently determined to se conduct this ad- ministration that the plaintiff should be defeated of her legacy, actuated, nb doubt, by a belief that she got more of their father's money than she should have had, he is not, in strict law, liable to pay interest, for the reason that he has made no profit, and has funds to pay her now only because he is to be charged with money saved by the statute of limitations on the one hand and an increase over actual results on the other. To charge him with more than the principal sum would be inflicting a penalty rather on sentimental grounds, than giving compensation for injuryactuallyreceived. The principal sum, for which the executor is liable, is 116,538.4:5, and for this the plaintiff is clearly entitled to a personal decree against him. �LIABILITT OF JOEIi 1. PDLLIAM. �In the opinion given at the hearing I indicated that Joel L. Pul- liam was not liable to the plaintiff for the $9,246.02 paid to him by the executor after the bar of the statute of limitations in favor of dead men's estates. The executor was not then, nor is he now, seeking any recovery of this sum, and I do not eonsider whether he could recover it. And this is one of the strongest features of this case, and shows how entirely this executor has submiLted himself to the domination of his brother's interest as against his own. Ordinarily, as soon as it appeared that an executor was sought to be charged with a wrongful payment to a supposed creditor, he would take steps to recover the money back for the benefit of those to whom it belonged ; but, so far as it appears here, this executor has not done this, certainly neither by cross-bill nor otherwise in this case, but on the contrary stands jointly with his brother, and, by the same counsel, insists that he is not liable for it, at least not to the plaintiff. Perhaps this may be ��� �