to a creditor upon his costs; although the trustee of the court always has a due proportion of interest awarded to him on the

on either side, and he is called upon to determine on the papers which had before been filed.

With respect to the first charge in the account, viz: for the annual profits of the claimant's part of the estate, the Chancellor does not perceive the proof by which the precise amount is ascertained. But supposing it ascertained; it is then to be considered, whether or not the annual profits of the six years, between the death of Alexander Frazier and the sale of the land, during which it was enjoyed by the claimant, may be charged against him.

The act which gives to this court authority to sell, &c., leaves the debts to be satisfied entirely to the discretion of the Chancellor. He has, indeed, established, that all just debts, except those which were a lien on the lands during the life of the deceased, shall be on an equal footing. But this does not prevent him from rejecting a claim, if any circumstance has taken place since the death of the deceased, which renders it unconscientious or unfair to prefer the claim. It is certain, that if John A. Frazier did not come in as a creditor, the other creditors would not be entitled to an account from him of the profits since his brother's death; but when he prefers a claim against his brother's estate, nothing appears more reasonable, than that he should give credit for the profits he has received from that estate. In short, it is the opinion of the Chancellor, that the claimant is entitled to an account of profits for only about three years; the difference between the time of Alexander's holding John's part, and the time of John's holding Alexander's part. It is worthy of remark, that the act for the amendment of the law, 1785, ch. 80, s. 7, obliges heirs to apply the real estate agreeably to the rules prescribed for executors and administrators. In a contest, then, between the creditors in general, as in the present case, and the heir of the deceased claiming as a creditor, how is it possible to say otherwise than that his just claim is no more than the balance remaining, after giving credit for the profits of that real estate ?

The second charge may be right. The third charge is for the deficiency of money expended in the claimant's education. By the bye, if Alexander was chargeable with his education, he ought to have charged the full amount, and to have given credit for the actual expenditure, instead of charging only deficiency and giving credit besides. This charge is founded on the complainant's construetion of his father's will.

Now, supposing it be the intent of the will to charge Alexander with his brother's education and maintenance, the strangest words imaginable are used. It is not, I give Alexander one-half of my estate on condition, that he lays out the sum of — in the complete education and maintenance of his brother, at some approved school,' or, ‘I will, that the part of my estate devised to Alexander be charged with the expense of providing a good education to his brother, and likewise completely maintaining him at some approved school.' No! it is, my will and desire is, that my son Alexander do, out of his part of the estate, expend so much money as will be sufficient to give my son John Alexander a good education.' It is apparent, from the whole will, setting aside this disputed part, that the testator contemplated perfect equality between his two sons; except, that he gave Alexander, the eldest, choice of two equal parts, and makes him executor; which is just what was reasonable, &c. Now, by changing the disposition of the words, and putting ‘out of his part of the estate,' at the end of the clause, it stands perfectly consistent with that intended equality; and it is well observed by the counsel, that transpositions are frequently made for the purpose of supporting a rational construction of the whole.

amount allowed to him as commission by the order confirming the auditor's report. (h)

It may be observed, that there are few men, who, in speaking or writing, do not express themselves in such a manner that, if you understand them according to the strict rules of grammar, you make them speak contrary to their intention.

It is alleged, without proof, that Alexander was burthened with the education of his brother on account of his, the said Alexander's, having already received a good education; and that by so charging him, equality was preserved. But it is not so. In such a case, the eldest son would be educated at the charge of the whole estate, and the younger at the charge of the elder's part. For illustration, suppose the whole estate to be £4,000; and that £500 had been expended in educating Alexander more than had been expended on John. To make them equal, it ought to be directed that £500 shall be expended on John, and the residue divided between them. In that case, they will have been educated at equal expense, and the share of each will be £1,750. But, according to the construction contended for, they will have been educated at equal expense, and John will get £500 more than his brother; that is, they each share £2,000 out of the £4,000. John has his part clear; but £500 is taken from Alexander to educate and maintain John. When the contemplation of equality is so apparent; when an easy, obvious transposition will support that equality; and when, without the transposition, such inequality takes place, it is impossible to admit the claimant's construction of the will. My will and desire is, that my son Alexander, out of his part of the estate, shall expend so much money,' &c., as already has been observed, is strange language to constitute a charge on Alexander's part. My will and desire,' are words very significant; to expend so much money,' are equally so. In short, the meaning of the whole clause was, that Alexander, the executor, should be authorized to lay out as much of John's part of the personal estate as would suffice to give him a liberal education. Without this provision in the will, John's education might be defective. The guardian, whom he might choose, or who might be appointed, without the provision, might not think proper to expend so much money as might suffice; particularly, if the annual profits should not correspond with the proofs in the cause, or might happen, in some years, to fall short.

In addition to all this; supposing us compelled to take his for Alexander's, it may be asked whether good education must comprehend maintenance; or whether, to prevent the great inequality in favour of a younger son, education might not mean barely the price of tuition, books, &c. lodging, food, and clothing, must be had whether at school or at home; and, therefore, it might be said, that he who is charged with education is not, of course, charged with those articles of necessity. In construing a will, it is notorious, that the judges have never considered the question as a mere point of grammar. The question ever is, 'what was the intent of the testator,' to be collected from the whole of his words. Amongst grammarians, there is no doubt, that his is considered, in propriety, as referring to the antecedent, if there be one, and not to a subsequent. It may, indeed, in this case, be contended, that the testator was not aware of any antecedent, or any rule of grammar. It is probable, that he was no grammarian. Let it just be supposed, that he had appointed two executors; and had said 'my will and desire is, that my executors, instead of saying my son Alexander, do, out of his part of my estate, expend, &c. &c. Is there even a rigid grammarian, who would say, that the testator violated the rules of grammar.

(h) Brown v. Wallace, 29th February, 1816, post.

This judicial conversion of the interest into principal, has, in some respects, the appearance of allowing compound interest,

No! he would say 'his' refers the antecedent, if there be one; but the word his may well be placed so as to refer to a subsequent, as in the case of Mr. Frazier's direct. ing his two executors out of his part of the estate, to educate his son John Alexander. From the proofs in the cause, and from reasonable suppositions, the account may stand as follows:

A. Frazier, deceased, to John A. Frazier,

To one-half of the gross profits of the estate, from 9th May, 1779,
to June 1790, 11 years 1 month, at £129 per ann.
To timber from my part, or one-half of the timber sold,

Dr.

£1,429 15s. Od. 50 0s. Od. £1,479 158. 04.

Contra.

By one-half of the gross profits of the estate for 6 years, at the rate aforesaid,

.

£774 0s. Od.

By one-half of taxes, medicines, repairs, &c. &c. for 5 years, 1
month; that being the difference between the time of Alexan-
der's holding the estate, and John's holding the estate, the re-
pairs, being made chiefly by Alexander, at £24 per ann.
By board, clothing, education, pocket money, physic, &c. for 8
years, at £45 per ann.

122 0s. Od.

360 Os. Od.

By one-half of the gross profits of the estate, from the arrival at age of John to Alexander's death. It is not to be supposed, that if Alexander held the estate, after his brother's full age, he had less than one-half. The defect of proof must again be remarked. But say only £75 per ann. for 3 years, after John arrived at age, and was entitled to his estate,

By balance in favour of Alexander,

225 Os. Od. £1,481 Os. Od. 1 5s. Od.

On the whole, from the fullest investigation of this case; and on full deliberation, it does not appear to the Chancellor, that John A. Frazier's legal representatives have any just claim against the estate of Alexander Frazier The Chancellor hath declared himself thus fully; because the grounds of his decision could not be obvious; and because he wishes, on every occasion, if possible, to reconcile to the losing party his determinations. There are, indeed, circumstances in this case, which required that he should explain himself; in order that one principle, at least, should be known to be established; (3 H. & J. 144, note.)

On the 2d of October, 1799, the auditor reported, that he had stated the claims exhibited against the estate of Alexander Frazier, deceased, amounting, on the 12th day of April, 1796, to £5,274 18s. Od. including the claims of James Pattison, as heretofore stated and returned as account No. 1. And on those claims, he remarks, that Nos. 11, 13 and 15, are not proved; that Nos. 16 and 17 are proved, with an exception to allow any account standing against them on the deceased's books; that No. 12 is only a copy of a receipt exhibited as money paid to the said Alexander Frazier as attorney; but not proved by the claimant; and that No. 14 is a note of hand, given to Richard Ward, and proved by Zachariah Ward, who does not even state, that he is executor or administrator of Richard; the probate is also deficient The purchaser, Charles Williamson, by his petition, stated, that, under a persua

and of being in fact usurious; but it is not so. (i) Compound interest is the annual or periodical conversion of interest into prin

sion that John A. Frazier was entitled to half the purchase money, he had accordingly paid him that amount, and obtained his receipt; whereupon, he prayed that he might be allowed a credit for so much upon his bond.

After which, and upon all the foregoing matters, the case was again brought before the Chancellor for further and general directions.

23d May, 1800.-HANSON, Chancellor.-Let the auditor, at the request of the purchaser, state the proportion of each creditor, reserving the amount of claims not established. The Chancellor, on application, at any time after the 10th of July next, will decide on any claim against the estate of Alexander Frazier, which has not yet been passed; provided a copy of this order be inserted in the Maryland Gazette three times before the 15th of June next. Depositions taken before a single magistrate will be received as evidence of any of the claims aforesaid. The rules prescribed by the Orphans Court, with respect to claims against deceased persons, are adopted in the Chancery Court; claims passed by an Orphans Court are generally passed by the Chancellor, unless the same are disputed.

In obedience to this order, the auditor, on the 4th of November, 1800, reported that he had stated the claims exhibited against the estate of Alexander Frazier, deceased, and the dividend on each claim, amounting to £1,405 12s. 3d. the one-half of the purchase money due them on the 12th day of April, 1796; that No. 11 was not proved; No. 12 was a copy of receipts, and not proved, only as being true copies of the receipts; No. 13 was not proved; No. 14 was a note to Richard Ward, proved by Zachariah Ward, who said he had not received any part, but had not said that he was either the executor or administrator; and No. 16 was proved, with an exception to allow any account against it on the deceased's books. Upon which the case was again submitted to the Chancellor.

2d December, 1800.-HANSON, Chancellor.-The Chancellor has examined the auditor's last statement of claims, and the dividends by him struck. He is of opinion that the auditor has done right in rejecting claims Nos. 11, 12, 13, 14, and 16. But as there is a probability, that the said claims, or some of them, may be hereafter established, he will not absolutely dismiss them without notice to the claimants to produce further vouchers.

Ordered, therefore, that the Chancellor will, on application of any person concerned, proceed immediately to decide on any of the following claims against the estate of the said Alexander Frazier, viz. William Campbell's, Robert Ward's executor, Walter Roe's, Richard Ward's, and Robert McCoy's; provided it shall be proved to his satisfaction, if a copy of this order hath been served on the claimant fifteen days before such application.

Ordered, further, that of the money to arise from the sale of the said Frazier's real estate, there be paid, agreeably to the auditor's statement, as follows:

To the trustees, for commissions,

For costs of suit as taxed,

To the auditor, for fees,

John A. Frazier's representatives,

£90 0s. Od.

20 8 6

8 15 0 1,405 12 3

1,067 195 17 8 0

James Pattison's representative,

Richard Frazier,

(i) Chambers v. Goldwin, 9 Ves. 271; May, 1781, ch. 17, s. 2 and 3.

cipal, so that the whole may carry interest to the end of the next year or period, and so on. The contracting for which originally would be deemed illegal. (j) But where the interest is converted into principal by a judgment at common law, or by an order of this court, it is because of the whole being found to be then due as an entire debt, which is so judicially required to be paid, on which, if the debtor fails to pay as commanded, he must, thenceforward, be charged with interest upon the whole amount so adjudged to be due. (k) And upon similar principles, on a bill to foreclose, or redeem a mortgage, if, by the decree, the mortgagor is allowed a certain time to redeem, by the payment of principal, interest and costs down to a specified day; and if he fails to do so, the interest will be added to the principal, and the whole will, thenceforward bear interest. (1)

Ordered, further, for the accommodation of all parties concerned, that the receipt in writing of any person, entitled as aforesaid, filed in this court for so much money as is due to the said person, shall be admitted, and considered as so much money brought into court, agreeably to the directions of the decree in this cause; provided the said receipt be filed by the trustees, or either of them.

N. B. It is not the Chancellor's meaning, that the whole of this order be served on those claimants whose claims are doubtful. It will be sufficient to serve only the clause relating immediately to them, and the preceding part. The Chancellor bas been often embarrassed, and great delay and trouble in the settlement of cases like the present, has resulted from the neglect of claimants to exhibit, in the first instance, proper vouchers; and from his own unwillingness to reject claims which the parties probably have it in their power to establish; and from the obvious impossibility of his distinguishing, in the beginning, between inattention, ignorance, and sheer speculation. The present case has been long delayed on account of such claimants. Should any of the aforesaid doubtful claims be finally rejected, there will be another dividend to be struck. That a final settlement may be had as soon as possible, he recommends the immediate service of the order as aforesaid.-M. S.

(j) Neal v. The Attorney-General, Mosely 247; Bosanquett v. Dashwood, Ca. Tem. Tal. 40; Chambers v. Goldwin, 9 Ves. 271; Howard v. Harris, 1 Vern. 194; Sackett v. Bassett, 4 Mad. 64.-(k) Shepherd v. Mackreth, 2 H. Blac. 284; Bickham v. Cross, 2 Ves. 471; Creuze v Lowth, 4 Bro. C. C. 318, 158.-(1) Bickham v. Cross, 2 Ves. 471; Harris v. Harris, 3 Atk. 722; Creuze v. Hunter, 2 Ves. jun. 158; Atkinson v. Hall, ante 371.