378 HAMMOND v. HAMMOND.

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 reject-
ing 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 Alexan-
der'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 construc-
tion 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 ray son John Alexander a good education.' It is apparent, from
the whole will, setting aside this disputed part, that the testator contemplated per-
fect 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 reason-
able, &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.