Sanderson v. Sanderson's Administrators (20 Fla. 292, 1883)

Mr. Justice Westoott

delivered the opinion of the court.

This case is here upon appeals hy plaintiffs and defendants from the action of the Circuit Court had subsequent to a determination of a prior appeal by each of the parties, and the remanding of the cause. A full statement of the case, and the action ot this court upon those appeals up to the remanding of the cause, will be found in a previous volume of the reports of the decisions of this court. Sanderson’s Admr’s. vs. Marion H. Sanderson, 17 Fla., 820; and it is not deemed necessary here to encumber the reports with a second statement. After this case was remanded the parties entered into the following agreement:

First. That the testimony taken before the master, J. H. Durkee, with exhibits, shall be admitted for the purpose of the further hearing, reserving to the complainants the right to insist on the lavs' of res adjudicata as.to all of the accounts or any part thereof, and to the defendants the right to introduce new and further testimony as to any of the issues of fact involved. It being understood, however, 'that- in case the defendants introduce new testimony, the complainants shall have the right to introduce testimony on their part in rebuttal.

Second. This head of the agreement refers to the method of general accounting and does not concern the exceptions brought here upon these appeals.

Third. The complainants agree not to dispute, but will admit-all credits claimed by defendant, L’Engle, in his accounts as administrator paid on account of said estate, excepting only the Baxter claim, and such as arise from the investments of the assets of said estate other than those which have been accepted by the complainant, Marion 'H. Sanderson, on account of her distributive interest in said estate, except also any-matter of law7 which may arise upon the voucher $2,064.00 paid to R. S. Grant & Co. or R. S. Grant.

Fourth. The following points are designated for further examination before the master :

1st. The Ambler interest account.

2d. The allowance to the administrators severally for and on account of the administration of said estate.

3d. The attorney’s fees paid and to he paid by the administrators and each of them.

4th. The costs and disbursements of every kind in this suit.

5th. The item on partnership account of $4,166.66, entered as June 30, 1871, appearing on page 75 of Exhibit No. 43, as reported by the master, J. H. Durkee.

6th. The question of commissions received by John P. Sanderson for the sale of Tallahassee Railroad stock belonging to Call, Baker and Niblack in relation to the rule laid down by the Supreme Court.

Fifth. Errors and omissions oí' fact, when discovered and pointed out by cither party, shall be subject to correction.

Sixth. Notwithstanding the foregoing points oí' agreement each party reserves the right to urge any and all matters of law which may.he necessary to the proper presentation of the case. .■

An examination of the opinion rendered upon the previous appeals in this case will show' that many of the mattei’s therein considered and determined with reference to the record then before this court arc under this agreement made the subject of rehearing and re-investigation by the Circuit Conrt and are now here to he re-invostigated by us. This objection has been made here by neither of the'parties and silence by all of them was the response to repeated questions by the court calling their attention to the matter. We shall, therefore, treat this agreement as the rule determining the extent to which these second appeals bring the various questions discussed to our attention. Upon the general subject of the extent to which a case is to be reviewed upon a second appeal or writ of error, see Tyler vs. Magwire, 17 Wall., 283; Roberts vs. Cooper, 20 How., 481; Corning vs. Troy Iron Factory, 15 ib., 466; Ex parte Sibbald, 12 Pet., 492; Martin vs. Hunter’s Lessees, 1 Wheat., 355; Himly vs. Rose, 5 Cranch, 317; Rœmer vs. Simon et al., 91 U. S., 149; Russell vs. Southard, 12 How., 159; Carter vs. The American and Ocean Insurance Company, 3 Pet., 319. The principles clearly announced in these cases may not perhaps be applicable lo the present case, because, as we said in the preceding appeals, the strict rule required their dismissal without prejudice, and the infant not being a party or concluded thereby, was expressly given the right to introduce new testimony upon all subjects and to contest all matters involved therein. The right in which the widow sued also was of such character as gave her no equity. She sued as heir when her only claim was as widow electing a child’s part. We accept, therefore, this agreement as the* law of thds case to the extent that the subsequent proceedings come within its terms.

AVc first consider the several grounds upon which a reversal of the decree is sought by the plaintiffs in the Circuit Court, the widow and child of John P. Sanderson.

The first ground of appeal by plaintiffs is because the Circuit Court allowed a credit of four hundred and fifty-three dollars and fifty-five cents, amount paid in settlement of the Baxter claim.

By reference to the opinion rendered upon the former appeal it will be seen that the court allowed an exception to the credit for this sum, not because it appeared that nothing was due, but because the testimony did not establish “ that the amount paid was due.” In other words, it was too indefinite to fix the amount of the debt due. The testimony upon which the plaintiffs now insist in their argument that nothing is shown to be due the Baxter estate was that taken before the mandate in the first appeal, and which was then considered. We shall not review our conclusion as, to the result of that testimony. By reference to the opinion it will be seen that our conclusion was that it did appear that something was due but that the amount paid was due was not then established. We are entirely satisfied that that conclusion was correct. The question here now is, does the new testimony, together with that here upon the first appeal, establish the amount due to be as much or more than was paid. We think the testimony of J. J. Daniel does establish that the sum paid was due. He states substantially that after an examination of the whole matter with the papers and other proofs ot the claim and its amount, he “ was thoroughly satisfied ” that this sum was due. In this examination “ the memoranda prepared during the latter month of Colonel Sanderson’s life in a partial settlement made between him and parties representing the Baxter estate,” to which much of the testimony upon the previous hearing was directed, was before him. The papers then before him and from which he came to this conclusion, he states he has made diligent search and inquiry for and cannot find. Mr. Bell, who represented the Baxter claim in the negotiation, and who this witness states it is probable has possession of the memoranda referred to, the witness understands lives in Texas, but where he resides or how to reach him the witness does not know. We see no legal objection to this testimony. The plaintiffs urge none. It is the positive statement of the knowledge of a party having no interest in the claim itself, and who, if he had any interest or duty in the premises, it was against the admission of any debt, as he represented the estate as an attorney at law in the settlement. For the reasons stated we think the voucher under the agreement to introduce new testimony was properly allowed.

The second ground of appeal by plaintiffs is because the court allowed the administrator credit for $2,064 paid by him May 30, 1874, on account of the “ alleged liability” of Sanderson as an indorser of a promissory note made by the Florida, Atlantic and Gulf Central Railroad Company, September 20, 1860, payable five months after date. The ground of objection is “ that there is no evidence whatever that Sanderson had notice of the protest of this note, and that therefore he never became liable as endorser.”

The note is as follws:

$2,064. New York, September 20,1860.

Five months after date the Florida, -Atlantic and Gulf Central Railroad Company promise to pay J. P. Sanderson or order at the office of Joseph Gun, 94 Wall Street, New York, two thousand and sixty-four dollars for value received, and have pledged three thousand dollars of the Freeland bonds of said company to secure the payment of this note at maturity, numbered as follows: Nos. 1, 2, 3 and 4 of $250 each, and numbers 129 and 130 of $500 each, and numbers 101 to 110, inclusive, of $100 each. Total, $3,000. Tó be surrendered on payment of this note.

Florida, Atlantic & Gulf C. R. R. Co.,

By J. P. Sanderson, President.

The note is endorsed in blank: “ J. P. Sanderson.”

The legal presumption is that such an endorsement was made before the note was due. This we do not understand to be denied. Before the master upon the first reference and before the first appeal herein the original protest and certificate of notice thereof were placed in evidence without objection by plaintiffs. The protest is in proper form, and while it is without date, the Notary recites that on the 23d of February, A. D. 1861, he did present the original noteat the office at which it was payable and demanded payment, which was refused. Following the protest is'a certificate of the Notary, who states that on the 25th of February, A. D. 1861, due notice of the protest was served upon the endorser by depositing the same in the post-office in the- City of New York, and prepaying postage thereon, said notice being addressed, J. P. Sanderson, Jacksonville, Florida.

E. M. L’Engle, the administrator, says in his testimony that he “ had knowledge of the debt against J. P. Sander-son, from conversations with him, during his last illness, in which conversation he sought -to make me attainted with the general condition of his affairs. lie told me of this note endorsed by him and acknowledged it as a claim against him. Tie spoke of the bonds which were hypothecated with the note, (Freeland bonds,) and of other bonds of the same class which had been hypothecated with one Davis in North Oai’olina by the Florida, Atlantic and Gulf Central R. R. Company for a debt due said Davis by the-company, and which, the debt being paid, Davis had returned to him, Sanderson. lie said that said bonds so returned were in his .safe, and that he meant to hold on to them for his protection, which bonds so in his safe, together with the bonds which were hypothecated with said note I, as admininistrator, filed with James M. Baker, Master in Chancery in the suit of Tj. I. Fleming and Green II. Hunter, Trustees against the Florida, Atlantic and Gnlf Central Railroad Company, to close the trust concerning all the bonds of that class. The bonds so filed Ity me are still with James M. Baker.”

When exhibit C, which was the original protest and certificate before alluded to, and a copy of the note was originally introduced in evidence before the first appeal, L’Engle in his testimony stated that “the demand was presented for payment in the early part of February, 1872. The demand was made in writing by letters addreesed to me which I here produce and offer in evidence, contained in seven sheets of paper.” Plaintiffs’ attorney objected to the introduction of the papers because, as he contended, they constituted “ no evidence of legal presentation of the claim referred to therein against the estate of John P. Sanderson,” and also “ for want of proof of their authenticity.” L’Engle, after stating that Sanderson, during his last illness, sought to make him acquainted, with such of his business affairs as were unsettled, says that Sanderson spoke to him about this note. The witness says: “.This debt was one of the matters he talked to infe about. I endeavored to effect a settlement of Sanderson’s liability at a heavy discount. The negotiations extended through 1872 and 1873. .[finally succeeded in effecting a compromise of the whole debt for the amount of -the principal. The bonds mentioned in Mr. Grant’s letters, as being placed with him as collateral security for the (§2,061) two thousand and sixty-four dollar note were delivered to me as administrator by the holder of the note through Ambler’s bank. Said bonds were by me filed with James M. Baker, Master in Chancery, appointed in a proceeding instituted to close the trust under which said bonds were issued. They were filed that the estate might receive its distributive share from these bonds.” The letters, to which allusion is here- made, are in the record, but beyond the fact that they show confidence in the liability and solvency of the estate, it is not seen that they have any bearing upon the question raised as to this payment upon this appeal.

The note, protest and certificate must be treated as properly in evidence here, and must be given the same effect as they would be entitled to it they were accompanied by the deposition of the notary. Nicholls vs. Webb, 8 Wheat., 332; Spann vs. Baltzell, 1 Fla., 322.

No such objection was taken to them when introduced upgn the first appeal, and it is too late now to urge the ground that an original protest and certificate are not cvideuce of the facts which they narrate. It appears here, therefore, that this note was presented for payment and payment demanded and protest made on the 23d of February, A. D. 1861, and that notice of such demand and dishonor was mailed to Sanderson, the indorser, on the 25th of February, A. D. 1861. The question which the plaintiff's raise here now, is whether upon these facts, the indorser, Sanderson, was bound, and this is a question of law, which under the third stipulation of the agreement, they have a clear right to raise and insist upon. The indorser here resided in Jacksonville. The note was payable in New York City.

Chief-Justice Marshall, in Lenox vs. Roberts, 2 Wheaton, 373, says it is the opinion of the court that notice of the default of the maker should be put into the postofE.ce early enough to be sent by the mail of the day succeeding the last day of grace. In the case of the Bank of Alexandria vs. Swann, 9 Pet., 33, Mr. Justice Thompson approved of the general rule announced in Lenox vs. Roberts. The same rule was adopted by Mr. Justice Washington in the case of the United States vs. Parker’s Admr’s., 4 Wash., 465, and that decision was affirmed on error by the Supreme Court in 12 Wheat., 559.

It is unnecessary to repeat authorities to this general proposition. The rule where the indorser resides in another State or place is, that the notice must be deposited in the postoffice in time to be sent by the mail of the day succeeding the day of the dishonor provided the mail of that day be not closed at an unreasonably early hour or before early and convenient business hours in which ease it must be sent by the next mail thereafter. “ In other words,” as remarked by Mr. Daniel, “ the notice must be sent by the first mail which leaves after the day of dishonor is past and does not close before early and convenient business hours of the day succeeding the day of dishonor.” See the case of Lawrence vs. Farmer’s Bank, 1 Ohio State, 206, a case which this able text writer justly calls “a most learned and instructive case on the subject of notice.”

[n this case the notice was not mailed until the second day after the dishonor of the note. No circumstance extending the time to that day is shown. The notice therefore was not sufficient to hind the indorser.

Ft is insisted, however, that the indorser here received security and indemnity of such character and from such party as excuses notice by the holder of the demand and dishonor. We do not think that the facts of this case call for a discussion of this doctrine. As indorser, Sanderson had nothing in his hands to secure him against his contract as indorser. The bonds which went to the holder of the note, his indorsee, were for his, the holder’s, security. They were not iu the - possession of Sanderson to secure him as indorser, and L’Engle, Sanderson’s administrator, received them from the agent of the holder, when he paid the principal of the note. The bonds were received by - L’Engle, the administrator, after maturity of the note and its dishonor and after Sanderson’s death. The indorser here never did have them as security for his contract as indorser. As to the other bonds of which the indorser spoke in his conversation with F/Engle the time dr circumstances under which he, Sanderson, received them, so far as disclosed, would give him no right by virtue of any contract shown, to hoid them as indemnity. He states that they were hypothecated “ with one .Davis, in North Carolina, by the Florida, Atlantic and Gulf Central Railroad Company tor a debt due said Davis by the compauy, and which (the debt) being paid, Davis had returned to him, Sanderson, He said that said bonds so returned were in his safe and that he meant to hold on to them for his protection.” This does not prove any possession of these hoods by Sanderson uuder a contract made with him as indorser by any party to secure him. In his last illness he simply states that these bonds are in his safe.- He received them from Davis when the company paid Davis what it owed him. Sander-son had possession oí' the bonds, and affirmed that- he would hold them for his protection, and we think the presumption here is that Sanderson received these bonds after the dishonor of the note by virtue of some understanding with the company. What that understanding was, however, as far as it adhered the-nature of the liability of Sanderson is concerned, is not disclosed. The rule as stated by Mr. Justice Story upon this subject is that “ if there has not been any due presentment and notice of dishonor of the note and the indorser, after the maturing of the note, supposing himself liable to pay the same, takes security therefor from the maker, that will not alone amount to a waiver of'the objection of the want of due presentment and due notice, since it cannot justly be inferred that he means at all events to make himself liable for the payment of the note ; but he takes the security merely as contingent security in case of his liability.” Story on Promissory Rotes, 278. Here there is no proof that Sanderson took these bonds under any contract with the maker of the note, and so far as the act of Sanderson’s administrator was concerned he simply received the bonds from the holder of the note (Sanderson’s indorsee) when he, the administrator, paid the note. See also upon this subject 2 Daniel negotiable Instruments, second edition, pages 164,165,166, 167, 168.

If, however, it be true that the Davis bonds were placed in Sanderson’s hands under a contract of indemnity with the company before the note became due, after indorsement and before dishonor, the simple fact of receiving such security unacompanied by other circumstances which indicate an intention of the indorser to dispense with demand and notice would not excuse notice. An indorser’s contract is one of contingent liability. To make it absolute the circumstances must show such to be the intention and the taking of security as shown in this case is not sufficient, to change the nature of the liability from conditional to absolute. Kramer vs. Saudford, 4 Watts & Sargeant, 328. Where, however, it is distinctly-shown that the indorser, with knowledge of the facts attending the protest and notice, and with knowledge as in this case that he had received no sufficient notice to bind him as indorser, takes a security, “itis a circumstance of evidence to show a waiver of objection, though not conclusive or perhaps even presumptive proof of that (act.’’ 2 Daniel Negotiable Instruments, 166. For, as remarked by an able text writer, (1 Parson’s N. & B., 619) “why should a person take these steps to secure himself unless his liability actually existed.” This brings us to the consideration of the proposition of the administrator here that Sanderson acknowledged the debt, and with a full knowledge of all the facts directed its payment as his debt, and did such acts as amount- to a waiver of the objection that the proper steps -had not been taken to bind him as indorser. We cannot- presume that an attorney connected with such varied and important commercial transactions as this record shows Sanderson was, was not aware that under the law the notice here was insufficient to bind him. But whether he knew this to be the law or not is not material. He received the protest and notice and had actual knowledge of the facts concerning them. Want of actual knowledge of the law in this as in many other cases is no excuse. Whether he knew that this fact constituted a legal defence to the note is not material. Third National Bank of Boston vs. Ashworth et al., 105 Mass., 508; Hughes vs. Bowen, 15 Iowa, 446; Richter vs. Selin, 8 Sergt. & Rawle, 425; Kennon vs. McRea, 7 Port., 175; Tibbets vs. Dowd, 23 Wend., 386. We think that the admissions and directions of Sanderson to L’Engle in respect to this note are inconsistent with any other theory than that Sanderson acknowledged that he was legally bound to pay the note. lie spoke of it as a debt and gave directions which are consistent only with an admitted liability, and that liability could not. have been such as resulted from notice of demand and dishonor. Tie knew the fads as to the nature of the demand and the character of notice he received, and was chargeable with knowledge that the law applicable to such facts was that he was excused. TTe had full knowledge of the laches. This admission and direction to L’Engle was made, too, under circumstances of more than usual solemnity. It was during Sanderson’s “ last illness.” “ This debt was one of the matters he talked to me about,” says L’Engle in his' first examination, and in the examination since the case was remanded, he says “ that Sanderson acknowledged it as a claim against him,” and advised him, L’Engle, that he (Sanderson) held certain bonds for his protection. The cases apon this subject are collected in 2 Daniel on Negotiable Instruments, pages 186, 187 and 188. These acts and declarations to L’Engle were of such character as to show that Sanderson admitted his liability here, and we think the law justified his acting upon such declarations and acts. Certainly as to L’Engle any party claiming through Sanderson should be'estopped from denying the liability which Sanderson admitted to him. It may be insisted rhafc there is here no direct evidence of any admission of liability or promise to pay to the holder of this note by Sanderson. This is true. Rut his admissions to L’Etigle are only consistent with such admitted liability to such holder. If it is established that Sanderson during his lifetime admitted his liability for this claim to the person who became subsequently his administrator, we think the administrator is not called upon to resist it, for the necessary presumption is that the holder of the claim is entitled.

It is insisted that the length of time which elapsed during Sanderson’s life should create a presumption of knowledge upon the part of the holder that some defect existed which would defeat a recovery. We must recollect that the war here intervened. And besides, the evidence when it relates to this subject shows that the delay to press Sanderson was occasioned by the expectation that he might in some way get the money from the railroad company. The holder seems to have acted under the impression that Sanderson “ was a man of large means,” and “ he had no question but that it,” (the claim).“ could be collected by due course of law.” The conclusion we reach here is, that the facts that Sanderson after the maturity of the note took security after his knowledge of want of due notice of demand and dishonor, and his admission and declaration after such knowledge, to L’Engle, who was then his partner and to whom he (Sanderson) was then giving directions generally as to his business and for the purpose of making L’Engle acquainted with the situation and nature of this claim, that the note was a debt for. which he was liable, is sufficient to at least make a prima facie, case of liability of the estate for this debt, upon which the administrator was authorized to act. What might be the case if the distributees here proved that Sanderson had done no act, nor made any agreement or promise to pay with his indorsee which waived want of notice of demand and dishonor which would negative such primó facie case (such, for instance, as evidence of the indorsee to that effect,) and thatL’Engle could by reasonable .diligence have ascertained this fact, we do not say. We simply say, prima facie the administrator was not guilty oí' a devastavit-in paying this debt under the facts• in evidence here. Sanderson’s acts and declarations here show that he owed the debt and there is no doubt that L’Engle, under the statute, is a competent witness in this behalf. As to whether he ought to be, that is a matter of legislative discretion which we propose not to criticise.

It is not necessary in this case to decide the question, but we are inclined to the view that Sanderson here was not entitled to any notice; that he was so chargeable in law with knowledge of demand and dishonor that he was not entitled to notice. The demand for payment here was at the time and place appointed in the note and by a party entitled to payment. It was good against the company. Sanderson, here the indorser, was the representative of the company, and as its president drew the note. He was the president of the company when it became due. (We have not examined the record carefully as to this fact, as the decision is not controlled by our views based upon it). lie was the payee of the note and was a director and a sfo clcholderin the corporation. A corporation has only an artificial existence. Its acts, its knowledge, its resposibilities, the exercise of its powers and the discharge of its duties result from the acts and knowledge of its representatives, who are natural persons, and we think if the, demand here was legal and proper, and of that there is no doubt, that Sanderson, by virtue of the relations stated, was chargeable with knowledge of demand and dishonor, and fhat that knowledge being derived from act of a party entitled to payment, excused any further notice to him. If Sanderson was chargeable with knowledge as such officer and representative of the corporation it would bind him individually as endorser. In the case of Caunt vs. Thompson, 62 Eng. Cora. Law, 400, “ at the trial, it was proved that the bill was presented on the day it became due, at the house of the acceptor; and the defendant, to whom it was then shown, said that the acceptor was' dead, and that he was his executor, adding a request that it might be allowed to stand for a few days, and he would see it paid.” The executor was the drawer of the bill, and it was held “ that there, was sufficient evidence of notice of dishonor,” and that “ knowledge that the bill has been dishonored where the drawer is himself the party who is to pay the bill (as executor of the acceptor), amounts to notice.” As a matter of course the knowledge in this case was derived from a person entitled to payment. So in the case now- before the court, the demand was made by the agent of the indorsee of Sanderson, who had the right to demand payment of the company.

The third ground of appeal by plaintiffs, is because of the allowance of a charge against intestate, Sanderson, of $1,200 in the accouut between him and respondent, E. M. L’Engle, as .surviving partner of the firm of Sanderson & L’Engle, received by the intestate as epmmissions for the sale of stock of the Jacksonville, Pensacola and Mobile Railroad Company from Messrs. Call, Niblack and Baker.

When this case was here upon the former appeal we held that this sale of stocks was the business of a broker ; that it did not belong to the ordinary business of attorneys at law, and that in the absence of proof of an express contract, making such sales a part of the business of the firm as attorneys, or that such acts were embraced in the ordinary usages and customs of this business in the locality where it was carried on, or that this transaction was one which the firm was employed to effect, or that the ordinary exigencies and objects of the partnership embraced sales of stock, L’Engle was not entitled to a share in the commissions paid. 17 Fla., 845. The matter, is now presented with additional testimony and it is insisted that the proof sustains the proposition that such a sale of stocks was embraced in the ordinary usages and customs of the business of attorneys at law in Jacksonville, Florida. The Judge of the Circuit Court so found. Some of the testimony here looks to cases of special contz’act where such sales are had through correspondence with a firm of attorneys. We do not think this reaches the question, because it is not contended here that Sanderson himself proposed to be acting as a member of' the fizm. FTo act of the firm is shown in cozmection with the matter. The proposition is that while Sanderson may not have supposed that his sale was as a member of the firm and therefore did not charge himself with it, still, that it was an act like the pi-eparing and filing an ordiziary declaration, the compensation for which enured to the pai'tnership by virtue of the fact that the service was such as pertained to the business of attorneys at law, according to the ordinary usages and customs of their business in Jacksonville. We have "read the testimony upon this subject cai’efully and the ruling of the court is certainly aznply sustained by the evidence. Under these circumstances, however strange the fact that the oz’dizzary business of an attorney embz’aees in the locality a simple sale of stock, aiz act which clearly belongs to the avocation of a broker, may appear to us, still, under the rules controlling this court in the contingency presented, we az*e obliged to affirm the ruling.

The fourth ground of appeal by plaintiffs is because sums paid for taxes on the property of the estate from 1875 to 1880 were allowed the administrator. The first objection to the allowance is because he was not assessed for the “ personal property held by him in such represezztative capacity, his representative capacity being placed opposite his name.” The assessment here was entered : Sanderson, J. P., Est. There are cases which hold that a Collector could not maintain an action against the administrator of an estate for the amount of the tax on personal property assessed to “ the estate of ” the deceased after the date of •an administrator’s appointment. They have no application-here. An administrator cannot be charged either in a court of equity or law with a devastavit for the payment of taxes to which the property of the estate in his hands of under his control was subject. The only question which the distributee can here ask is, was the property subject to taxation, and did yon. by your payment discharge-a tax to which it was subject? The administrator is no more obliged to take advantage of an assessment of personal property illegal in the manner here disclosed where such property exists and is subject 10 the tax than an individual is. We do not propose to follow the argument of plaintiffs when they deny that the estate had personal property to the extent to which the administrator paid the tax. It is enough to say that personal property of the estate to the amount for which the tax was paid had come to the hands of the administrator, and that it was then in his hands and that such moneys or personal property were subject to the tax. The position that the act of illegal investment without the dissent of the distributee changed the nature of the asset to a claim against L’Engle amounts to nothing, for if it be correct, which it is not, then the claim against L’Engle, itself was subject to tax as the property of the estate. The administrator here, however, had a right to treat the securities in his hands as the property of the estate. It is nowhere shown that his purpose was to convert them to his own use, nor were they in contemplation of law his property until the distributee rejected the investment. The, equitable right of the distributee to the funds invested and the legal title of L’Engle as administrator existed until the distributee rejected the investment.

As we understand the fifteenth ground of appeal of. plaintiffs, which is an order for the payment of the taxes on assessment of $20,000 of personal property of the estate for the assessment of 1881, what has been said covers the question involved, and for the reasons stated we think it correct.

The fifth, sixth, seventh, eighth, .ninth, twelfth, thirteenth and fourteenth grounds of appeal by plaintiffs relate to costs of the suit and allowance to the administrator for his services. Their consideration is postponed until other matters not involving so general a discussion of the nature of the case are disposed of.

The tenth ground of appeal of plaintiffs is because L’Engle, the administrator, is not charged with moneys which plaintiffs allege he had collected on a claim of the estate against the firm of Smallwood, Hodgkiss & Co. Upon these moneys plaintiffs claim compound interest from the time that the moneys came into L’Engle’s hands as administrator.

The facts here are as stated by the Judge of the Circuit Court. These moneys were moneys collected by L’Engle as surviving partner of the firm of Sanderson & L’Engle upon a claim of J. L. Smallwood or Smallwood, Hodgkiss & Co. against Thomas Livingston & Co. The funds were in his hands as attorney and surviving partner of the law7 firm. His clients, although frequently requested to give him instructions as to the application of the funds, declined to do so. Other creditors of his clients were insisting that they had a better right to all or to a part of the funds than Sanderson’s administrators had. L’Engle himself was not familiar with all the facts concerning the transíactions between Sanderson and. Smallwood. Eor his- protection he files a bill of interpleader, produces the money and it is placed in a bank in Jacksonville by order of the court to abide a determination of the pending interpleader suit. The claim of the estate was sustained. The plaintiffs, the distributees, are entitled to the money. It is in the registry .of the court and should be thus applied. During the pendency of the suit and before L’Engle has possession he is not chargeable with it or interest upon it unless he neglects to collect it for an unreasonable length of time and it is lost. So far as the estate is concerned the record does not disclose that this money was ever in L’Engle’s hands as administrator, and it does disclose that before the claim of Sanderson against Smallwood, Hodgkiss & Co. came to L’Engle’s hands, such firm was so notoriously insolvent that it would not give any direction as to an application of its assets, but left L’Engle not only to protect the estate, but to contend with all the other creditors of the estate. Again, how can L’Engle be charged with the debt as if lost, when the court has decided that the estate is entitled to the fund now in its registry.

So far as the matter of charging compound interest upon this claim is concerned, this court has frequently held that an administrator is only chargeable with such compound interest upon moneys received and L’Engle has not received anything here as administrator. There is no claim on account of unreasonable.delay in collection after judgment of the court. So far as the objections to the allowances for costs in the interpleader suit is concerned we cannot collaterally question the judgment in that case. These allowances are directed by the court in that suit to be paid from a fund in its own custody. The administrator, however, is the party to act and to place the money subject to the orders of the court in this case or he will be responsible for delay.

The next ground of appeal of plaintiffs, which does not concern general costs of the case and the allowances to the administrator, is the sixteenth, which is an order of the court directing the master to take testimony and report the amount due E. E. L’Engle for professional services rendered the administrators. The ground upon which the exception is based is that a creditor and an administrator cannot thus settle their differences in this case, which is a suit by heirs and distributees for an account and distribution ; that the creditor should bring his independent suit at law, or the administrator pay the amount due and ask credit for the voucher.

Upou an examination of the record we find that the exception taken to the master’s report upon the subjects embraced in this ground of appeal were taken subsequent to plaintiffs’ appeal herein entered, and that the order of the court made thereon was made subsequent to the entry of appeal by the plaintiffs. The entry of the appeal here was filed May 18,1883, and the appeal is from orders of the court made on the 29th of March, A. D. 1883, and the 17th of May, 1883, while the report of the master as to this matter was in pursuance of an order of May 28, 1881. The exceptions to this report was filed after the entry of the appeal and after the order of the court thereon was made. There are a considerable number of irregularities in this proceeding, which the court, because no objection was made, has not alluded to. This, however, cannot be overlooked as it is a matter of jurisdiction. No appeal in this case brings the matter of the action of the court upon these exceptions to our attention. What has been said embraces all the grounds of appeal urged by plaintiffs, except those referring to costs and allowances, which we consider hereafter.

We now1 examine the grounds of appeal by defendants.

The first- ground alleged is charging the administrator, L’Engle, with any part of the interest on the amount deposited at Ambler’s bank up to the time of his administration.

What are the facts ? Sanderson died intestate about the 29th of June, 1871, leaving a considerable cash deposit in Ambler’s hank. L’Engle was appointed administrator of Sanderson’s estate on the 7th of November, 1871. Before his appointment, but in anticipation of it, he made a contract with the banker by which the hanker agreed to pay interest on the moneys belonging 1o the estate which were then in his hands, or which should afterwards come to his hands, on condition that L’Engle would leave the funds there during the winter, or the greater portion of it of 1871-2,” or for such time as he should want such funds, not extending beyond such wintei’. L’Engle, under the contract, was to have the right “ to withdraw the funds as the necessities of tlie estate might demand and in such sums as might be necessary.” On the 5th of March, 1872, L’Engle, in his account with the bank, is credited for interest to July 1, 1871, $89.44. ■ This interest accrued anterior to L’Engle’s contract. On the same date he is given a credit for interest from July 1, 1871, to date of entry, March 5,1872, for $1,968. L’Engle’s first return extending from the date of his letters, November 7, 1871, to May 31, 1872, (a period of less than seven months) has no reference to the credit for this interest in his account with his depositary, the banker. In his account from the first of June, 1872, to and including May 31st, 1873, he charges himself with it as of the date of June 6, 1872. L’Engle has filed in this case a statement of his investments or loans of the funds of the estate in which the amount left o'n deposit with Ambler is not treated by him as an investment or loan of money. It is not pretended that any part of the sum left on deposit, principal or interest, was lost. The moneys remained with the banker to the credit of the administrator and were drawn out for investment or disbursement at the discretion of the administrator. The Judge of the Circuit Court directed that the administrator be charged with the amount he realized for interest, $1,968. If we understand the matter, the administrator insists that his transaction with the banker constituted an unauthorized investment of the money ; that it was similar to a loan of money of the estate upon a mortgage not approved by the court, and that he was not chargeable with the interest credited to him by the bank. He insists further that he is chargeable with no interest upon the deposit during the time this interest accrued. Even if this is to be treated as an unauthorized loan, the administrator should be charged with some interest at least. "We do not see, therefore, auj7 foundation at all for the position that he is chargeable with no interest on the money. But we think it clear that this is not an unauthorized investment or loan for which the administrator is chargeable. In the first place, even if it be a loan, the administrator’s account with the banker shows no loss. It shows that it has been paid 'by the banker. It was the money left by the intestate on deposit in the bank against, which the administrator drew, in the general management of the estate. If an unauthorized investment is made during an administration and such investment is satisfied In-payment, principal and interest, to the administrator, it ceases to he an investment and becomes-moneys of the estate, realized from such investment, and the administrator is thus chargeable if the distributee so desires. As a matter ol course, there may he circumstances connected with the investment or loan of the fund which would give the parties interested as distributees a right to object to the whole transaction and claim more than what was realized from the use of the fund. Here, however, there is no loss. The money resulting from the contract has been realized ; there is no existing investment or security to be rejected ; no objection by distributees; and hence the fact of “ risk,” or the extent or nature of the “ risk,” which the administrator insists he assumed by leaving the money on deposit, are entirely immaterial.

The second ground of appeal of defendants. The Chancellor allowed L’Engle $4,000 compensation for his services as administrator. The administrator objects to this allowance, and claims six thousand dollars. This sum was fixed by the Chancellor after hearing evidence as to the character of the services, and as to what would be a fair compensation. We have read the testimony and cannot say that there is any error in the action of the Chancellor. In this connection it is proper to refer to the objection that the administrator in this case invested the moneys of the estate in personal securities and where there was a mortgage security taken it was not approved by the Judge of the County Court. The result under the statute, as to .this money, is simply that, the administrator is chargeable as we have stated upon the former appeal. We do not understand the statute to provide for any forfeiture except in the case of the neglect of the administrator “ to render ” his annual account to the County Court, and the forfeiture there does not extend beyond commissions on amounts collected or disbursed and approved and allowed. In this case the administrator has been held to a strict account for all the moneys which came to his hands, as the statute required. If a distributee, upon the rejection of' investments not authorized by law, but made in good faith by an administrator, succeeds upon a simple accounting in a master’s office in recovering all that he is entitled, to with compound interest at eight per cent, per annum, we think he has no cause to complain, and that the administrator should be allowed, in the language of the statute, “ a fair and j.ust compensation” for his services not embraced in the terms, commissions on amounts collected or disbursed, or under the heads of compensation. The evidence discloses that settlements very favorable to the e'state were made of claims due by the estate. ITis accounts, while they were not marked hied, were in the office where the law required them to be. All the information which the distributees could obtain with the tile mark on them they could obtain from them without the file mark. There is no loss. ' For this care, attention and nmngement he is entitled to compensation. This allowance, however, embraces all that should be allowed to the administrator for care and attention. Any allowance made as an annual allowance, so lar as plaintiffs have excepted, should be disallowed, as the stature does not authorize both.

The defendant’s third ground of appeal relates to a charge against L’Engle for attorney’s fees in this suit. Its consideration is postponed until we reach the general subject of costs.

The next grou d ol appeal, the fourth, of defendant is because the master failed to credit the administrator with interest “on payments and disbursements.” We do not think that the administrator is entitled to commissions on moneys collected or disbursed in this case. Such commissions are to be allowed only on returns made as required by law. Moore and Montford vs. Felkel and wife, 7 Fla., 73, and then they are restricted to accounts embraced therein for amounts collected or disbursed to the extent that they are approved by the Judge of the County Court. Thomp. Dig., 207, Chap. 1013, Laws; MeC. Dig., 97 and 98. This forfeiture, however, does not embrace “compensation” on money arising from the sale of personal property or land authorized by the statute. Under the decision of Moore and Montford vs. Felkel, 7 Fla., 63, 64 and 73,I understand the forfeiture under the statute extends only to commissions on amounts collected or disbursed and does not embrace “ compensation ” for 'sums realized from the sale of personal property or land or allowances for “care and attention to, and management of the property of the estate from year to year.” Thomp. Dig., 207 and 208; McC. Dig., 98; Moore and Montford vs. Felkel and wife, 7 Fla., 63, 64, 73. We have several times alluded to the “annual returns” of an administrator, and “the returns made as required by law.” While no objection is made here by either party to the date of the returns made by the administrator here, still the question of the forfeiture of the commissions on amounts collected or disbursed depends in part upon whether these returns are annual in the meaning of the statute and made at the time required by law, as if not so made this commission is forfeited. In this case the intestate died about the 29th of June, 1871, the ad-ministrator was appointed on the 7th of November, 1871, aud his first return includes and ends with the 31st of May, 1872. This return is made eleven months after the death of the intestate, and six mouths and some days after the qualification of the administrator. It is, therefore, in no sense an annual return, unless the beginning of the year is to be fixed before the death of the intestate. This, we presume, no one w7ill contend for. Under the act .of 1859, Chapter 1013, Laws, it is provided that “ administrators * * may make their annual returns at an}7 time before the first day of June in each and every year.” This statute should not be so construed as to repeal that portion of the law which requires annual returns when its language does not require such construction, -and when looking to the almost uniform policy of all the other States an administrator’s first return commences from the time of his appointment and extends for such length of time as will enable him to get the estate in hand and make some comprehensive and full return of its condition, its liabilities and its assets. 3 Williams on Executors, 6 Amer. Ed., b. p. 1845 and 1846. Suppose the death of the intestate occurs on the 30th of April, does the law contemplate a monthly return for May? Is this an annual return within the meaning of the law? Again, the law does not provide that the fiscal year for administrators’ accounts shall end on and with the thirty-first of May.' On the contrary the law in express terms provides that such “annual returns” may be made “ at 'my time before the first day of June.” If it can be made at “ any time ” before the first day of June, why say that it can be made to close only on the 31st of May. In this case the administrator was appointed November 7, 1871. Ills annual account should have embraced the period from the 7th November, 1871, to 7th November,'1872, and his return for that year was required by law to be made “ at any time ” between the 7th of November, 1872, and the first day of June, 1873. A return is not required to be filed by the first of June, unless between that date and the date ot the letters of administration a year has elapsed so that an “ annual return ” can be made. It is true the words of the statute are “ by the first day of June in each antUevery year.” This means in each year in which an annual return can be made. No return for a part of a year is authorized unless it is the last return which may necessarily be for less than a year.

Before leaving the subject of returns and allowances by way of commissions and compensations, we wish to say generally that the exercise of discretion by the Circuit Court upon these subjects, commissions and compensations within the fixed legal limits, should not he interfered with by an. appellate'tribunal except in a plain case of an allowance too large or too small approved by that court.

The next ground of appeal, the fifth, of defendant, L’Engle, is to the action of the court in not allowing L’Engle an item of $4,166.66, which he charged to himself in his partnership accounts, but for which he claims he is not liable, and that his charge was a simple gratuity. The testimony of L’Engle and Littlefield and the exhibits give the history of the transaction out of which this debit arises. L’Engle says, “ as to the amount of $4,166.66, I say that between the loth of April and the end of May, 1871, j. P. Sander-son informed me that he had made a contract for the employment of the firm of Sanderson & L’Eugle and the survivor of said firm, by the Florida Central Railroad Company and the Jacksonville, Pensacola and Mobile Railroad Company for the term of three years, commencing on the loth of April, 1871, at the compensation of $20,000 per annum, payable monthly. At his request I reduced the said agreement to writing and he signed it, but no other party signed it. Afterwards, on the 22d of May. 1871, J. P. Sanderson executed an indenture, whereby be transferred and conveyed to myself all of his interest in the capital stock and propertjr of the Jacksonville, Pensacola and Mobile Railroad Company. The object of such indenture being to secure the carrying out of tbe agreement I have j ust testified to by M. S. Littlefield, and also to guard against the nonpayment of the drafts which T have testified to as having been given on the 15th of April, 1871, it being provided in said indenture that when said drafts should be paid and when all moneys due by said railroad companies or by said M. S. Littlefield to Sanderson & L’Engle, or either member of said firm, shall be fully paid and satisfied, that then I should assign and convey to M. S. Littlefield, or to his orders, all of the said shares of capital stock and interest in said railroad. Subsequently^ on the 15th of February, A. D. 1872,1 made a contract with M. S. Littlefield cancel-ling all engagements for professional services. I had received no payment under the contract which I have testified to as having been signed by J. P. Sanderson. I mean the memorandum of ,a contract which be had told me he had made, and no compensation whatever for servicés rendered said railroad companies or M. S. Littlefield since the 15th of April, 1871. In cancelling my engagements with Lit- ‘ tlefield and said companies 1 did, not jeel at liberty to give up the amount which he and the railroad companies were due to the firm of Sanderson cf IJ Engle, nor to cancel any engagement which had existed so far as the firm was concerned without indemnifying the firm for the. claim so surrendered, therefore assuming that the memorandum of a contract given me by J. P. Sanderson was correct, and without inquiry whether or not it was correct, I charged myself with $1,166.66, that being the proportionate amount of $80,000 a year for the time the firm of Sanderson If Engle continued after the 16th of April, 1871. J. P. Sand,erson lived two months and a half after the 6th day of April, A. E. 1871, and, I charged myself with the amount that loould have belonged to the firm under the memorandum of contract referred to if the payments had been actually made and received by me.” (Italics are by the court.) “ That amount being assumed by me I felt at liberty under the indenture of the 22d of January, 1871, above referred to, to make the contract I did make with M. S. Littlefield, above referred to, dated 16th of February, 1872. I have never received any money under the contract, a memorandum of which, signed by J. P. Sanderson, I have above referred to, nor under the Contract of 16th of February, 1872, with M. S. Littlefield, above referred to, but as I have stated I became responsible for and a,ssumed all that the firm of Sanderson & L’Engle would have been entitled to under any. circumstances, and in my accounts and. dealings with the firm’s, business treated myself as having received the said sum of $4,166.66 in money. The shares of capital stock in the Jacksonville, Pensacola and Mobile Railroad Company mentioned in the indenture of J. P. Sanderson to myself, dated May 22d, 1871, were four thousand shares in said railroad company. The con tract above referred to between M. S. Littlefield and myself, dated February 16th, 1872, which contemplated a transfer to him of the said shares of stock in consideration of an abandonment of my interest as a survivor in any contract for professional services and for the other consideration stated in said contract, was not carried out and performed on the part of Littlefield. I have the four thousand shares of stock still, and will very cheerfully turn them into the estate of J. P. Sanderson in consideration of the amount I have charged myself, as above stated. I mean that if I am repaid the $4,166.66 I have charged myself with on the firm books I will gladly assign the certificate of said stock. Said certificate and stock were among those, all of M. S. Littlefield’s interests in which were sold under the proceeding in chancery I have above testified to. As a result of said sale whatever equity M. S. Little-field may have had in said stock was extinguished and I hold and control them and am willing to transfer them as T have above offered to do. I had no personal knowledge of the terms .of contract memorandum of which, signed by J. P. Sanderson, I have above testified concerning; I mean that I had no knowledge other than that derived from J. P. Sanderson until after Sanderson’s death, when M. S. Littlefield informed me that the memorandum of contract was correct exceptas to the amount of condensation. He stated that the amount should have been stated in said memorandum at fifteen thousand dollars.” It is thus seen that according to L’Engle’s understanding, there was due under the contract of April 15, 1871, to Sanderson & L'Engle, at Sanderson’s death,-this sum of $4,166.66. This indebtedness it is seen was a part of the consideration of the .contract of February 16, 1872, between Littlefield and L’Engle, enuring from L’Engle to Littlefield. This contract upon its face, (the contract, of February 16,1872,) shows its purpose to be to close all the matters existing between the parties. This is L’Engle’s view of the matter. What does Little-field say of this contract of the 16th of February, 1872 ? He says: “ The contract of the 16th day of February, A. I). 1872, between E. M. L’Engle and myself, was a full, final settlement of all matters between myself and the railroad companies on the one part, and E. M. L’Engle and Sanderson & L’Engle on the other párt, and of all and of every contract between us. This of course includes the contract of April 15th,' 1871,” (the contract, under which 'the $4,166.66 enured to Sanderson & L’Engle, and with which' L’Engle charged himself or credited the firm,) “'and of all moneys due under it.” In the contract of February 16, 1872, there was this covenant: “ It is farther understood , and agreed that uo claim or demand shall ever be made by the said Littlefield, or the said Swepson,” (whose agent Littlefield was,) “ or by any of the said railroad corporations, or by any creditor thereof, or by any stockholder therein against the said Sanderson & L’Engle, or the survivor thereof, or against the legal representatives of the said J. P. Sanderson,” (one of whose administrators the-said E. M. L’Engle is,) “ for any money so received by the said J. P. Sanderson in his life time, or by his legal representatives after his death, or by the said Sanderson & L’Engle, or the survivor thereof.” Littlefield says this contract was inserted at the instance of L’Engle, and while Little-field, in his testimony, restricts its operation to a payment of $15,000 made to Sanderson in his life time, which sum Littlefield did not owe, and which Sanderson refused to account for except as a sum to be credited for future services by Sanderson & L’Engle, still it is apparent upon the face of the instrument that the covenant covers “any money” received by Sanderson in his life time, by his legal representatives after his death, or by Sanderson & L’Engle, or the survivor thereof, and while the terms of the covenant are restricted to “ money,” still to give it any effect as to the survivor, L’Engle, it must embrace any money due by Littlefield to Sanderson & L’Eugle up to Sander-son’s death, and which, according to the testimony of both L’Engle and Littlefield, was a part of the consideration of this contract of February 16, 1872. As to the matter of ■the adjustment of the account between Sanderson & L’Engle and Littlefield, arising out of the contract of April 15, 1871, Littlefield says “ that he exhibited to L’Engle, ' sometime in the summer or fall of 1871, a statement in writing showing the sums of money I had paid to J. P. Sanderson and the firm of Sanderson & L’Engle, and the dates at which the moneys were paid, and tbe interest upon each item with a view of having a settlement made according to the understanding, as I understand it, of a contract to be made between Sanderson, L’Eugle and myself shortly after the 15th day of April, 1871. I cannot say whether L’Engle took the paper in his hauds or not. He was not inclined to consider the paper. The subject matter of it was discussed between us and postponed for consideration at some future day. It never was referred to again to the best of my recollection until the contract was made on the 16th of February, 1872,” (the contract under which L’Engle charges himself with the $4,166.66, which sum he then claimed for Sanderson & L’Engle, and Littlefield allowed, and which was part of the consideration enuriug from L’Engle to Liftlefied.) “ The contract that I refer to was the one in which Sanderson was to account for moneys in his hands which I have already testified to.” This attempt of Littlefield’s at a settlement was effective for nothing. As further explanatory of the circumstances under which the contract of February 16, 1872, was made, Littlefield says: “In the summer of 1871, when E. M. L’Engle went Rforth, our relations were friendly. During his absence and without consulting him, I conveyed the J. P. & M. Railroad Company to three trustees. This offended him very much, and when he returned late in the fa