#### THEODORE A. LIGHTNER, CLARENCE M. LIGHTNER, ALICE LIGHTNER, HOPF, and MARTHA LIGHTNER BOONE v. DANIEL F. BOONE, Executor and Trustee of the Estate of FRANCES M. LIGHTNER, Deceased, and THEODORE A. LIGHTNER, CLARENCE M. LIGHTNER, ALICE LIGHTNER, HOPF, and MARTHA LIGHTNER BOONE v. DANIEL F. BOONE, Executor and Trustee of the Estate of CLARENCE A. LIGHTNER, Deceased.

(Filed 16 December, 1942.)

*4221. Executors and Administrators § 30d—

•As a general rule personal liability of an executor or administrator to distributees for interest, where there has been delay in closing the estate, depends entirely upon whether the delay was reasonable or unreasonable under all the circumstances, the personal representative being free from liability where the delay was reasonable and chargeable with interest where the delay was unreasonable.

2. Executors and Administrators §§ 29, 30d: Trusts § 12—

Where one in a fiduciary capacity uses the trust funds for his own advantage and never accounts therefor until compelled to do. so, he is liable for interest on the funds so used. An executor and trustee is liable for interest on amounts paid himself as attorney’s fees.

3. Executors and Administrators § 29: Trusts § 12—

When in an in rein proceeding such items of costs as referee’s allowances and stenographic reporter’s bills are taxed in the discretion of the court against the fund in litigation, C. S., 1244 (6), they may not be retaxed by subsequent order.

Appeal by defendant from Clement, J., at August-September Term, 1942, of Pome.

Modified and affirmed.

Civil action for an accounting.

Tbis case was here on former appeal at the Spring Term, 1942. Lightner v. Boone, 221 N. C., 78. lifter the opinion on the former appeal was certified down plaintiffs moved for judgment in accord therewith. They likewise moved for correction of certain errors in the calculations contained in the referee’s report and for interest on the amount adjudged to be due from the date of the institution of this action, to wit: 29 October, 1940.

Thereupon, after the parties had been given opportunity to be heard, judgment was entered for $15,070.84 (the amount due after correction of errors), and for interest thereon from 29 October, 1940. The costs were taxed against the defendant individually, as directed by this Court. The judgment siiecifically directed that certain items be taxed as a part of the costs. These included, among others: (1) referee’s fee of $250.00; (2) charges of stenographic reporter at referee’s hearing, $132.24, and balance of $12.50; (3) receiver’s fee and expenses, including cost of bond, total $336.83; (4) stenographer’s charges for typing record proper, case on appeal to Supreme Court, $34.35; and (5) notary’s charge for taking depositions, $16.74.

The defendants excepted and appealed, assigning as error the allowance of interest and taxation of the named items of cost.

McCown & Arledge for plaintiffs, appellees.

Williams & Codee for defendant, appellant.

*423Barnhill, J.

Tbe defendant, in bis brief, abandons bis exceptions to tbe taxation of receiver’s commissions and expenses and charges of tbe stenographer for copying record proper on appeal as a part of tbe costs. Hence, tbe appeal presents these questions for decision: (1) are tbe plaintiffs entitled to interest from tbe date of tbe institution of this action on tbe amount recovered, or any part thereof; (2) were the allowances to tbe referee and to tbe stenographer reporting tbe referee’s bearings properly taxed against tbe defendant; (3) is tbe amount allowed tbe notary for taking depositions a proper part of tbe costs ?

Judgment for interest, except as herein noted, was erroneous.

In tbe absence of unreasonable delay, diversion of funds, or other wrongdoing, an executor or administrator is not personally liable for interest. Walton v. Avery, 22 N. C., 405; Pickens v. Miller, 83 N. C., 543, and cases cited; Clark v. Knox, 70 Ala., 607, 45 Am. Reports, 93; Anno., 31 L. R. A. (N.S.), 351.

“It may be stated as a general rule that tbe personal liability of an executor or administrator to tbe distributees of bis estate for interest where there has been delay in tbe closing up and settlement of tbe estate depends entirely upon tbe question whether tbe delay was reasonable or unreasonable under all of tbe circumstances of tbe particular case, be being free from personal liability for interest where tbe delay was reasonable, and chargeable with interest where tbe delay was unreasonable.” Clark v. Knox, supra.

Tbe plaintiffs pray interest only from and after tbe date tbe action was instituted. Hence, defendant’s conduct since that time is tbe proper criterion.

Upon tbe institution of this action a temporary receiver was appointed and tbe funds belonging to tbe estate were delivered to him. When tbe motion to make tbe temporary receivership permanent came on for bearing tbe temporary receiver was discharged and tbe court directed that, upon tbe filing of a proper bond by defendant, tbe balance of said funds remaining after disbursements .ordered by tbe court should be returned to him. Since that time be has been guilty of no conduct such as would charge him with interest on tbe amount thus received.

It was not improper for him to decline to settle until after final judgment on tbe opinion certified by this Court. In fact, it affirmatively appears that it was necessary for tbe court below to correct errors of calculation before tbe true amount could be adjudged. Furthermore, tbe referee allowed no interest and plaintiff did not except. Tbe judgment was for tbe amount due as reported by tbe referee and plaintiffs, on their appeal, -did not assign this as error. Their motion, made many months after judgment was entered, comes too late.

As to tbe $6,000 withdrawn by tbe executor from tbe estate as payment on an attorney fee for himself, tbe facts are quite different. He did not *424account to tbe receiver for tbis amount. It was not allowed by tbe referee or adjudged to be due by tbe court below. Judgment therefor was directed by tbis Court and tbe plaintiffs, at tbe first opportunity thereafter, asserted tbeir claim to interest. Tbis was in apt time.

In our opinion defendant is clearly liable personally for interest on tbis amount, at least from and after tbe date prayed, to wit: 29 October, 1940. Tbis sum was withdrawn from the trust estate by defendant and applied to bis own use. To tbis extent tbe estate has not been “kept sacred and intact for the cesiuis que trustent as tbeir property, ready to be delivered to them so that profit could not have been made thereon.” Peylon v. Smith, 22 N. C., 325; Pickens v. Miller, supra. Instead, be has used trust funds for bis own advantage and never accounted tberefor until compelled to do so. Arnett v. Linney, 16 N. C., 369; Pickens v. Miller, supra; Overman v. Lanier, 157 N. C., 544, 73 S. E., 192; 30 Am. Jur., 18, sec. 21; Anno., 31 L. R. A. (N.S.), 362; McIntire v. McIntire, 192 U. S., 116, 48 L. Ed., 369.

Tbe stenographer who reported tbe referee bearings filed a bill tbere-for in tbe sum of $132.24. Gwyn, J., approved the bill and ordered that it be paid by the executor. Phillips, J., entered an order fixing tbe compensation of tbe referee at $250.00 and directing that it be paid out of the estates involved. Were these items thus taxed against tbe estates? If so, the court below was without authority to reverse and tax against tbe defendant.

We are of tbe opinion that it should be so held. These items were taxable in tbe discretion of tbe court. C. S., 1244 (6). They are not necessarily taxed against tbe losing party. Bailey v. Hayman, ante, 58.

Ordinarily, in litigation over a fund in tbe nature of an in r&m proceedings such items of cost are taxed against and paid out of tbe fund. Except for tbe maladministration of defendant that would have been tbe procedure here as a matter of course. That tbis was tbe intent and purpose of the orders entered sufficiently appears.

Tbe item of $12.50, balance due tbe stenographer, was not included in either of these orders. Tbis amount was properly taxed against the defendant.

The fees allowed a notary public for taking necessary depositions constitutes a part of the cost of tbe case. Exception thereto cannot be sustained.

In justice to tbe court below it may be said that tbe opinion in tbis Court was followed literally. There was nothing in tbe opinion to indicate that we did not intend to reverse former discretionary orders taxing particular items of costs.

Tbe judgment below must be modified in accord with tbis opinion.

Modified and affirmed.