delivered the opinion of the court.

On the motion to dismiss these appeals the court are divided in opinion, and the motion to dismiss cannot, therefore, prevail.

*103We shall proceed to examine the questions which have been submitted on the appeal.

The appeal from the decree of the 2nd day of October, 1840, brings up not only that decree for examination, but the decree of the 19th of June, 1838, and the order of the 20th February, 1838.

Objections have been made on the merits which are common to both decrees, and objections have also been made to the regularity of the decree of 1838.

Two objections have been taken to the decree of 1838, and it is therefore said to have been improvidently entered.

1st. Because at its date, the rule security for costs had not been obeyed by the complainant, nor any proceedings had to discharge it.

2nd. Because at the date of the decree, the cause did not stand regularly for hearing.

The first question we shall examine hereafter, vrhen we shall come to consider the Chancellor’s order of the 20th February, 1838. Our views on the second question, renders the examination of the first in this place unnecessary. We believe the second objection to be decisive against the validity of this decree.

By the decision of this court, in Palmer & Hamilton vs. Oliver’s Ex’trs, 11 G. & J. 426, in which, like this, there was an interlocutory decree, and an ex parte commission, it was determined that the decree was irregular, and liable to reversal, according to the true construction of the act of 1820, chapter 161, unless before decree, the commission had laid in court one entire term; and it was further decided in that case, that the commission, in the language of the act of Assembly, should be issued, proceeded in, and returned in the same manner, and that the court should proceed to a final decree in the same manner, as if the defendants had appeared and put in their answers. Has the court in this case, proceeded to a decree in the same manner, as if the defendant had appeared and answered ? According to the established and uniform practice of the Court of Chancery, where the defendant appears and answers, the *104case is brought to issue, and a commission issues and is returned, it lies one whole term, before, by its rules, it is ready for decree. The same rule, as we have seen, is applicable to a final decree, taken under an interlocutory order and commission, under the act of 1820, chapter 161. And the question is, has the commission laid in court one whole term ? This involves the enquiry, what is a term of the Court of Chancery, and its duration, according to its rules and practice ? The September term commences on the fourth Tuesday of September, and terminates on the first Tuesday in December following, when the December term commences, and continues until the second Tuesday in March.

The commission was returned on the 20th of November, 1837, (during the September term,) and the case was laid before the Chancellor, by the defendant, on the 19th day of January, 1838, during and before the close of the December term. The decree having been made before the commission had laid one whole term in court, was made at a period when it could not rightfully have been made, and was therefore irregularly and improvidently entered. But if the above views were wrong, it is still certain that the decree was improvident, upon the ground, that it was presented to the Chancellor for decree after the termination of the sittings of that court, as of December term. By the rules of the Chancery court, the sittings commence with the commencement of the December term, and end on the third Tuesday of January, which, in the year 1838, happened on the 18th day of January. If the cause had been ripe for decree, it might have been called up and argued, or submitted at any time during the sittings; but not after the sittings are over, without consent. That was done in this case; so that upon either ground, the Chancellor’s decree of January, 1838, was improvident, having been passed at a time, and under circumstances, not authorized by the act of 1820, chap. 161.

The next subject for decision, is the question as to the correctness of the Chancellor’s order of the 20th of February, 1838, dismissing the petition of the defendant, praying that *105the decree of 19th January, 1838, may be set aside. The petition sought that the decree might be set aside upon the ground, that the petitioner had, on the 30th of December, entered on the docket a rule security for costs, and that this rule was not disposed of when the decree of 19th January, 1838, was passed. The petitioner does not propose to file his answer, but states he will do so if the decree be set aside, and he concludes his petition with a prayer, that the decree may be set aside; that complainant may give security for costs, and that within a limited time thereafter, he may be permitted to file his answer. The Chancellor dismissed the petition upon the ground, that the rule security for costs could not be enforced; that its previous disposition was immaterial, and that to gratify the petitioner, would lead to a lax practice, injurious in its consequences.

We are of opinion, with the Chancellor, that the rule security for costs could not have been enforced. The rule was entered on the docket irregularly. The practice of the Court of Chancery in this respect, is well stated in 1st Bland’s Ch’y. 561, to be, that when the non-residence of the complainant appears by the bill, such a rule may be laid on the docket during the sittings of the term. But that where the non-residence of the complainant does not appear on the face of the bill, the matter must be brought before the court by petition, and a special order obtained. In this case the non-residence did not appear by the bill; the matter was not brought before the Chancellor by petition, and the rule on the docket was wholly irregular. The defendant was in default for not appearing and answering, and while he was so in default, he could not lay a rule security for costs. He waived, moreover, the right to demand security for co’sts, by praying an appeal; the settled doctrine being, that any proceeding in a cause, recognising the complainant’s right to sue, takes away the defendant’s right to have security for costs.

But again, on the 16th March, 1834, the defendant filed his answer to the application of the complainant, for a receiver, in which his knowledge of the non-residence of the complain*106ant is admitted; and after that,,on the 14th of August, 1834, he files his petition to the Chancellor for a sale of some of the negroes. It is very certain that this proceeding would, according to the authorities, have prevented the defendant from demanding afterwards, and before the bill of revivor, security for costs; and we think, it would equally prevent such an application after the filing of the supplemental bill of revivor, for that is but a, continuation of the former suit, with not a different complainant, but the same complainant, reviving the suit, .as administrator of his daughter.

But it is .urged, that although the rule may, have been irregularly laid, and that although the defendant may not have had a right to the rule, still the rule having been laid, it should have been disposed of before the decree of 19th January, 1838, could regularly pass. We think, however, differently; there could be no reason to set aside a decree otherwise correct, merely to put out of the way an order which must necessarily have been disposed of. The whole effect of such a proceeding would be, to set aside the decree, to get rid of the rule, and then decreeing again. The petition cannot be considered as an application to the Chancellor to file his answer, for that he only proposes to do, upon the rule security for costs being enforced. What the Chancellor, therefore, has done, cannot be considered as a rejection of the defendant’s answer, nor can it be said that the course of the Chancellor in dismissing his petition, defeated him in filing his answer to the bill of revivor, for the decree of the 19th January, 1838, was either a final decree under the act of 1820, chap. 161, or it was not. If it was a final decree, he had no right under that law, and in the circumstances of his case, to file.an answer; if it was not a final decree, within the meaning of that act, the law gave him the right of filing his answer, which he has not asked or tendered, but upon condition of the decree of 19th January, 1838, being set aside. We are therefore of opinion, that the Chancellor was right in his order of the 20th February, 1838.

We shall now proceed to examine the merits of the case. *107The complainant claims the rents and profits of the lands, in right of his wife, or in his own right, and the personal property, as the representative of his deceased wife, or in virtue of his administration on his daughter’s estate.

We differ with the Chancellor, in his construction of the will of Henry Hatton, and believe that by its true construction, Mrs. Weems took an equitable estate tail, which, in this State, is converted into an estate in fee in the lands devised to her; and that in the personal property she took an absolute estate, and that the limitation over to Henry Hatton, being after an indefinite failure of issue, is void. This construction of the will as regards the limitation over of the stock, plantation utensils, and kitchen furniture, is not denied; but it is insisted, that the case of Briscoe & Briscoe, 6 Gill & John. 232, is an authority to shew that he is entitled to the male negroes, and also the female negroes and their increase, and at all events, to the male negroes.

The court, in their determination of Briscoe & Briscoe, refer to the case of 4 Harr. & John. 441, and 4 Harr. & McH. 393, and do not overrule them; but distinguish them from the case then before the court, by the character of the subject matter of the bequest. These latter cases are decisive of the right of Mrs. Weems to the negro women, and their children and increase. Did the testator mean a definite or indefinite failure of issue, as the event upon which the ultimate legatee was to take ? These cases are decisive to shew, that where the subject of the bequest is a woman and her increase, that the testator meant an indefinite failure of issue. Such terms are used in this clause, and are decisive of the right of the first taker to the women and children; the men are contained in the same clause, and the same intention must be considered as applicable to them ; for he clearly meant that all should go over on the same event, and not that one portion of the bequest should go over on definite, and the other on an indefinite failure of issue. He could not, and clearly did not, mean to separate them, as would be the case upon the construction contended for.

*108If it be said that the intention in the clause of the will under consideration, by the bequest of men, was to indicate a bequest to the ultimate legatee, on a definite failure of issue, the intention is equally strong by the bequest of women and children to shew, that he meant an indefinite failure of issue. In such a case there would be no preponderating circumstance to show that-the testator meant a definite failure of issue, and the limitation would, therefore, be considered as resting entirely on the legal extent and import of the words, “if she die without lawful issue, to have the same;” and in that event, there could be no question but that the limitation would be too remote, and void. Such being the construction of the will, and the rights, of the parties, it becomes our duty to inquire into the charges which should be made against the defendant, and the allowances which should be made to him for expenses of the trust, and for its management.

According to our laws, a guardian cannot encroach on the capital of his ward’s estate, without the order of the Orphans’ court; nor can the real estate be diminished but by the approbation of the Court of Chancery; nor ought a trustee to encounter expenses impairing the principal of his cestui que trusts estate, without the approbation of a Court of Chancery, to which he should at all times appeal for his guidance and direction in the administration of his duties. What expenses, however, he has necessarily encountered, and which can be clearly and satisfactorily seen by the court, he ought to be allowed, as the court, on application at the proper time, would have allowed them.

But in making such allowances, the court must be careful that, in indemnifying the trustee, they do no injury to the cestui que trust. If the trustee has kept regular accounts of the expenses of the trust, so that they could be clearly seen and known, there could be no difficulty. But if he has mixed the property with his own, and kept no account of the products of the labor of the slaves, nor any account of the expenses of the clothing of the negroes, or of the clothing of his cestui que trust, then by his own conduct he has thrown over *109these matters an obscurity, which he might and ought to have avoided, and to prevent injustice being done to the cestui que trust. The consequences of such obscurity should be visited upon the trustee, and he cannot complain if those expenses are set down at the lowest estimate. Such has been the conduct of the trustee in this case. He has furnished us with not a single account of any kind or description, of the value of any clothing furnished the negroes of Mr. Weems. He has kept no account of the crops raised by the negroes, or of their hire; but has taken them himself, and worked them himself, with his own slaves, whereby real difficulty has arisen in doing justice to the parties. It appears that from the death of Mr. Hatton, up to the period when the accounts taken by the auditor are brought to a close, averaging the evidence given of the value of the labor of the slaves, and of the lands left by the testator, as estimated, and making the allowances claimed by him for compensation, alleged expenses for board and maintenance, it is manifest, that in a few years the trustee would consume the whole trust property. The principles upon which such a claim rests, cannot be well founded; and the claim cannot be sanctioned to the extent to which it goes, without overturning established rules. Had the defendant been a guardian, instead of trustee, he could have only been allowed commission to the extent of 10 per cent, on the income of the estate. In the case of Ringgold & Ringgold, 1 Harr. & Gill, 11, the trustee was allowed commissions by way of compensation or indemnity, in analogy to executors, administrators and guardians, and if compensation be made to the trustee in this case, in analogy to the commissions allowed either guardians, executors, or administrators, it will be found, that he has been allowed in this case a sum much beyond that amount.

With regard to the expense of raising the negroes, it is a striking fact, that in 1834, when there were as many children, subjecting the trustee to expense, as at any other time, the receiver was subjected to no other expense on account of the children, than to the loss of the hire of the mothers of the *110children, and that the defendant agreed to take one of the women, who had the greatest number of children, and her children, free of expense to the estate; yet notwithstanding this, when the property, during the same year was re-delivered to the defendant, allowances' are made him in the account for the maintenance of the children. Eight witnesses are examined to prove, when in their judgment, a child ceases to be expensive to his master, and what would be a fair price for the maintenance of a child; and a rule for averaging testimony has been applied, and made the basis of the allowance to the trustee. This is a rule adopted by the Chancery Court, for attaining justice, where the record furnishes no other means of arriving with more certainty at the truth. But like every other rule, it must have exceptions, and cannot with propriety be capable of universal application. We think the case before us furnishes an exception. Suppose the trustee had for half the period of the trust, hired out the mothers, with their children, so as to be no expense to the estate, would it not be stronger evidence of what the maintenance of them would be for the residue of the time, than the opinions and conjectures of witnesses, who vary in such opinions, of the annual expense of each negro, from five to twenty dollars. We think in such a case, the rule of average should be disregarded, and so we think, the fact that the receiver has been able, at so little expense, to take care of these children, is better proof than can be derived by the adoption of the general rule, and the more especially, as the defendant, by taking the most burthensome family on such terms, has admitted virtually the correctness of these views.

So too with regard to the board and clothing of the cestui que trust. We think we perceive in the record, a better guide than the rule of average. Ladies in the neighborhood have been boarded for one hundred dollars, and clothed for one hundred dollars, and indeed for a less sum ; and a witness, whose occupation is that of taking boarders, proves that he could board and lodge a lady for one hundred and twelve dollars. Evidence of this character, on the supposition that credit is to be *111attached to the witnesses, is a better guide to truth and justice, than the opinions of those, whose occupations or experience do not give them practical knowledge of the value of boarding. We shall, however, make a higher allowance for Mrs. Weems’ hoard and maintenance, than the above remarks would seem to indicate, as it is fully proved that her attire was more costly than was common. We think, in this view of the subject, and considering that Mrs. Weems was his sister, and it is proved that the board of a sister would not be so valuable as of a stranger, we think we shall make a sufficient allowance to the defendant, by directing the same to be credited to him at two hundred and fifty dollars per annum.

From the considerations above stated, we shall allow annually for all expenses of the trust, the difference between the amount of Mrs. Weems’ board, and the whole income of the estate annually; or in other words, the sum left of the annual income of the estate, both real and personal, after deducting from the same, the amount of the board, the account will thus be taken to the marriage of Mrs. Weems; after which the board must cease, as a credit to the defendant; and he will continue to be allowed annually, out of the income, the same amount for expenses, as were allowed before the marriage of Mrs. Weems.

The defendant, as a compensation or indemnity, for his care of the estate, must be allowed commissions, according to the rule heretofore laid down by this court, in Ringgold vs. Ringgold, 1 H. & G. 11. Under ordinary circumstances, we should have been disposed only to allow him the lowest commission, but it has been a trust of long duration, and we will therefore allow him seven and one-half per cent, commission on the income of the real estate; and seven and one-half commission on the income of the personal estate, and the value of the personal estate as it came to his hands. Some of the negroes have died. Their annual value must be deducted from the charges against him. Louisa, from the marriage of Mrs. Weems, anti Henley, Lantz and Romeo, from two months prior lo their respective deaths. Credit must also be allowed for *112Frank, and for Hanson’s services, from the periods when the trustee lost their services, according to the account of the auditor, as stated in the record.

We think the auditor has rightly charged the defendant with the stock and farming utensils, under the circumstances of the case, and he has rightly assumed, that they have been converted by the trustee.

The only remaining question for consideration, is the right of the complainant to sue for the property of his wife, in his own name. We think this right is conferred upon him expressly, by the act of 1798, chapter 101; just as if he had administered. Whether he be entitled, by the laws of Tennessee, to this property, it is not important to inquire; if Lhe should not be, he would then recover, as trustee, for the benefit of whomsoever might be interested.

According to the above views, it would seem to be unnecessary to say any thing with regard to the admissibility of the evidence of the letters of administration, which are referred to in the supplemental bill of revivor; because we believe that the whole'personal property, and the rents and profits of the land, can be recovered by the husband, as we think he acquired rights over both, by marrying his wife, and by having issue born alive. The Tennessee commission establishes the fact, that Mrs. Weems had a child born alive. We shall, therefore, decree an account to be taken to this time by the auditor, and shall decree the payment over to the complainant, of the balance, if any shall be found due, and the delivering over of the negroes and slaves who are now in being, and in possession of the defendant.

As each party has, to some extent succeeded, and the decree will,be modified and reformed, we shall decree that each party shall pay his own costs in this court.

In conformity with this opinion, this court directed the auditor of the Court of Chancery to state further accounts between the parties, and on the 2nd March, 1842, decreed: 1st. That there was error in that part of the Chancellor’s decree of the 2nd October, 1840, which ratified the auditor’s report *113of the 2nd September previous, and reversed the same, so far as it ratified said report, with costs in the Court of Chancery to W. L. Weems. 2nd. That the auditor’s report, made to this court, be ratified, and that H. D. Hatton pay, &c.; and 3rd. That the said H. D. H. surrender and deliver up to the complainant W. L. W., such and so many of the negroes mentioned in the decree passed by the Chancellor in this cause, on the 39th January, 1838, with the increase of the females, as may now be living. 4th. That the cause be remanded to Chancery; that the necessary orders may he there passed, fo'r the purpose of compelling a compliance with this decree, so far as it relates to the delivery of the property hereby decreed to be delivered; that the part of this decree which relates to the payment of the money, may be enforced by process from this court, and that each party pay his own costs in this court.

decree reversed in part, and cause remanded.