such as shoemaking or as a sail loft, or the temporary use of a portion of the building for holding society meetings, will not prevent an insistence upon the restriction, to prevent a violation of the condition by other uses of the building, such as for the sale of intoxicating liquors or for the keeping of horses or swine. delay in administering the estate, are properly disallowed him. and Administrators, Cent. Dig. §§ 460 462; [Ed. Note.-For other cases, see Executors Dec. Dig. § 111.*] 4. EXECUTORS AND ADMINISTRATORS (§ 309*)— PAYMENT OF DISTRIBUTIVE SHARE IN AD- [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1259, 1260; Dec. Dig. § 309.*] 5. EXECUTORS AND ADMINISTRATORS (§ 109*) -MANAGEMENT OF ESTAte-Orders OF PROBATE COURT-CONCLUSIVENESS. We are of the opinion, from an examina-tributive share in advance of a decree of distriA payment by an administrator as a distion of the testimony, that the complain-bution is properly disallowed him. ant's right to an injunction is not barred by laches or by the statute of limitations, and that he has not waived the breach of the condition contained in the Hooper deed. The complainant, as owner of the remainder of the tract of land, which was in Nicholas Ball after the deed from said Ball to John W. Hooper, is entitled to an injunction restraining the respondent from any violation of the restriction contained in said deed to Hooper, except as to the trade of repairing shoes, the use of which trade we find that the com Under Court and Practice Act 1905, §§ 814, 969, providing that the direction of the probate court shall be conclusive where an administrator must obtain its direction, and permitting an administrator with the permission of the probate court to erect a monument for decedent and to pay for the care of decedent's burial lot, the decision of the probate court on an application for leave to erect a monument for decedent and for an allowance for the care of his burial lot is conclusive, and additional payments therefor made by the administrator may not be al lowed him. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 436; Dec. Dig. § 109.*] 6. EXECUTORS AND ADMINISTRATORS (§ 509*) -ACCOUNTS-SETTLEMENT. The court, in proceedings for the allowance of the third and final account of an administrator, properly refused to open the first and second accounts to falsify them as to the amounts allowed the administrator therein for taxes on real estate and for insurance. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 2234; Dec. 1. EXECUTORS AND ADMINISTRATORS (§ 104*)-Dig. § 509.*] PAYMENTS UNDER MISTAKE OF LAW-LIA BILITY-STATUTES. Under Gen. Laws 1909, c. 319, § 9, and Court and Practice Act 1905, § 1003, providing that an administrator in case of unreasonable detention of money shall be charged with interest at a rate of not more than 6 per cent. per annum, an administrator who made a payment under a mistake of law and not in any way beneficial to himself could not be charged with more than 6 per cent. simple interest, either before or after the decision of the Supreme Court disallowing the payment. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 429, 432; Dec. Dig. 104.*] 2. EXECUTORS AND ADMINISTRATORS (§ 110*)— PAYMENT OF TAXES ON PERSONAL PROPERTY-LIABILITY. Since under Gen. Laws 1909, c. 57, § 9, providing that personal property held in trust by an administrator shall be taxed, an administrator is taxable on personal property in his hands, sums paid for taxes by him must be allowed him. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 439; Dec. Dig. § 110.*] 3. EXECUTORS AND ADMINISTRATORS (§ 111*) -EXPENSES FOR LEGAL SERVICES-ALLOW ANCE TO ADMINISTRATOR. Expenses for legal services incurred by the administrator in litigation for his own benefit, and in defending against his removal for great Exceptions from Superior Court, Kent County; Willard B. Tanner, Judge. Proceedings by Albert A. Kenyon, Administrator of Thomas E. Kenyon, deceased, for the settlement of his third and final account in which Solomon H. Kenyon and others appeared and made objections. From a decree of the Superior Court, rendered on appeal from a decree of the probate court amending the account, both parties bring exceptions. Administrator's exceptions sustained in part and overruled in part, and the objectors' exceptions overruled and cause remanded. Samuel W. K. Allen, for appellant. Harvey A. Baker, for appellees. JOHNSON, J. This is an appeal by Albert A. Kenyon, administrator of the estate of Thomas E. Kenyon, from a decree of the probate court of East Greenwich, amending and allowing and ordering recorded as amended the third and final account of said Albert A. Kenyon, as administrator of said estate. The items specified in appellant's reasons of appeal are: "Because said court amended said account by adding to Schedule A the item, to wit, of $485.77, and by disallowing and strik -and computing balance in the hands of the appeal filed by the appellant. As before administrator at the sum of $5,007.41." The appeal was heard in the superior court before Tanner, P. J., without a jury, December 20, 1909, and on January 13, 1910, the following rescript was filed: "This case is heard upon the appeal of the administrator from the decree of the probate court of East Greenwich upon the allowance of his third and final account. "First. As to the interest charged by the probate court in Schedule A, the amount of $485.77. We think under the circumstances that the administrator should pay only 4 per cent. interest compounded semiannually on the $6,000 paid by him improperly, up to the time of the rendering of the decision of the Supreme Court. The payment appears to have been made under a mistake of law, but was not in any way beneficial to the administrator. From the time of the rendering of the decision of the Supreme Court to the time when he filed his final account we think he should be charged with 6 per cent. compound interest. We think he should be allowed 4 per cent. compound interest on bills paid by him from his own funds till he reimbursed himself from the estate. "Second. As to the services of attorneys in litigating the $6,000 payment. We think these services were for the benefit of the administrator and not for the benefit of the estate. They are therefore disallowed. So far as they are for services in defending the administrator against removal, we think they should be disallowed, since the great delay of the administrator in administering this estate rendered him liable to removal. "Third. As to the item of $349 for the services of Frank T. Kenyon. If this claim had been allowed by the probate court and we were asked to reopen the account, we would refuse to do so on the authority of Hall v. Anthony, 13 R. I. 224; but it is not a proper claim against the estate and never having been allowed by the probate court, we must refuse to allow it. "Fourth. As to the item of $1,834.84 paid to the estate of Elizabeth Kenyon. This seems to have been paid as a distributive share in advance of a decree of distribution. It is therefore improperly paid and must be disallowed. "Fifth. As to the petition for leave to erect a monument and for care of the burial lot. We think the action of the probate court was conclusive (Court & Practice Act 1905, §§ 814 and 969). These items are there fore disallowed. stated, if the taxes and insurance had been allowed by the probate court, we should not feel like disturbing them except for fraud, but they are not proper charges and as the matter is before us de novo, the charges for insurance and taxes on the third account are disallowed. "Eighth. As to falsifying and surcharging the former accounts. We think the burden was on the appellees to show that the administrator did not account for the interest. He testifies that he did. We shall not therefore charge him with interest on the first account. We think he should be charged with the amount of taxes which he has been allowed in excess of what he actually paid. As to the taxes actually paid by him and allowed in former accounts, we think the case is governed by Hall v. Anthony, 13 R. I. 224. "Ninth. We do not feel at liberty to revise the charges for services and counsel fees in the second account. The second account was filed in time but not sworn to until afterwards. We think it would be unduly technical to hold that under such circumstances the administrator is entitled to no compensation; neither is it clear from the testimony that he gave no satisfactory reason for not swearing to it before. Decree may be entered in accordance with this decision." To this decision both the appellant and the appellees duly excepted. The appellant's exceptions are set out in his bill of exceptions, as follows: "The court ruled and decided that the administrator should pay to the estate 4 per cent. compound interest on the $6,000 paid by him improperly up to the time of the rendering of the decision by the Supreme Court, and from the time of rendering such decision by the Supreme Court to the time when he filed his final account he should be charged 6 per cent. compound interest. To which ruling the appellant then and there excepted. "The court ruled that the bill of three hundred ($300) dollars for legal services charged in the administrator's account should not be allowed, and disallowed the same. To which ruling the appellant then and there excepted. "The court ruled further that the item of three hundred and forty-nine ($349) dollars, the bill of Frank T. Kenyon, should not be allowed in said account, and disallowed the same. To which ruling the appellant then and there excepted. "The court further ruled that the item of eighteen hundred thirty-four and eighty-fou one-hundredths ($1,834.84) dollars, the amount paid the estate of Elizabeth N. Kenyon, ought | pellees in that it did not surcharge the third not to be allowed in said account, and disallowed the same. To which ruling the appellant then and there excepted. "The court further ruled that the decision of the probate court in the matter of the application for leave to erect a monument at the grave of the intestate, and for an allowance for the care of the burial lot, was conclusive under the provisions of sections 814 and 969 of the Court & Practice Act 1905, and they must therefore be disallowed, and so disallowed them. To which ruling the appellant then and there excepted. "The court further ruled that the whole account could be disputed by the appellees, and that the examination of the account should not be confined to the reasons of appeal filed in the case by the appellant, and that the consideration of the entire account was before the court, de novo, and disallowed the charges for insurance and taxes in said account which have been allowed by the probate court, and from which allowance no appeal had been taken. To which ruling the appellant then and there excepted." and final account with a sum equal to the items of administrator's services and counsel fees allowed in the second account, with interest from the date of such allowance. "Sixth. That said decision was erroneous, contrary to law, and prejudicial to your appellees in that it charged the administrator with only 4 per cent. compound interest on the $6,000 paid by him improperly up to the time of the rendering of the decision of the Supreme Court. "Seventh. That said decision was erroneous and contrary to law and prejudicial to your appellees in that it did not charge the administrator with 6 per cent. compound interest from the time when it became the administrator's duty to distribute the estate up to the time of entry of decree ordering final distribution of said estate. "Eighth. That said decision was erroneous, contrary to law, and prejudicial to the appellees in that said decision did not charge the administrator with interest on the ground that the said administrator did not charge himself with interest in the first account filed The appellees' exceptions are set out in by him." their bill of exceptions, as follows: "First. That said decision was erroneous, contrary to law, and prejudicial to your appellees, in that it did not open the first and second accounts on the ground of manifest mistake, and falsify said accounts as to the amounts allowed in said first and second accounts for taxes upon real estate and for in surance. "Second. That said decision was erroneous, contrary to law, and prejudicial to your appellees in that said decision did not open said first and second accounts on the ground of fraud, and falsify said accounts as to the amounts allowed in said first and second accounts for taxes upon real estate and for in surance. "Third. That said decision was erroneous, contrary to law, and prejudicial to your appellees in that said decision did not surcharge the third and final account with a sum equal to the amounts allowed on the first and second accounts for taxes upon the real estate and insurance, with interest from the time when these items were allowed. "Fourth. That said decision was erroneous, contrary to law, and prejudicial to your appellees in that said decision did not falsify the second account as to the items of administrator's services and counsel fees on the ground of manifest mistake, as it appears from the record that Albert A. Kenyon as administrator of the estate of Thomas E. Kenyon did not render an account within 30 days of the time when he was cited to render an account, as required by section 3, c. 219, of the general law of 1896, and as it appears that he gave no satisfactory reason to the probate court for his failure to do so. "Fifth. That said decision was erroneous, The case is now before us on these two bills of exceptions. As to the appellant's first exception to the allowance of the item of $485.77 for interest charged in the account as amended to the administrator, it appears that the payment of the $6,000 to Thomas E. Kenyon was made, as the court said, under a mistake of law and was not in any way beneficial to the administrator. Such being the case, we do not think he should be charged with more than six per centum simple interest from the time of the decision of the Supreme Court disallowing said sum. Almy v. Probate Court of Newport, 18 R. I. 612, 30 Atl. 458; Court and Practice Act 1905, § 1003; Gen. Laws 1909, c. 319, § 9. These statutes provide that the administrator in case of unreasonable detention of money shall be charged with interest "at a rate not more than six per centum per annum." Gen. Laws 1896, c. 219, § 9, is to the same effect. See, also, White v. Ditson, 140 Mass. 351, 4 N. E. 606, 54 Am. Rep. 473, cited in Almy v. Probate Court of Newport, supra. As the allow ance of four per centum compound interest on said sum up to the decision of the Supreme Court disallowing the same is not at a rate greater than six per centum per annum, we see no error in such allowance. As to the appellant's sixth exception: The disallowance of the charges for taxes, so far as the taxes were on personal estate, was error. An administrator is taxable upon personal property in his hands. Gen. Laws 1896, c. 45, § 9; Pub. Laws 1905, c. 1246, § 4, amending Gen. Laws 1896, c. 45, § 9; Gen. Laws 1909, c. 57, § 9. The appellant's first and sixth exceptions are sustained. The appellant's other exceptions are overruled. R. I.) MEETING. Gen. Laws 1909, c. 46, § 11, provides that a town shall elect all such town officers as are required by law, and may appoint such other of ficers as by law empowered, and such special agents for the town business not by law required to be performed by any officers known to the Gen. Laws law, as they may deem expedient. 1909, c. 50, § 4, declares that the town council shall have power to manage the affairs of each town, and to determine all such matters as shall by law come within their jurisdiction, and Act April 30, 1909 (Pub. Laws, c. 402, § 42), authorizes a town council to elect one or more town auditors and prescribe their duties. Held, that, where a town council passed an ordinance providing for a town auditor, and declared his duty to examine all claims presented against the town for work done or materials furnished, and to report his finding to the town council, a financial town meeting had no power under chapter 46, § 11, to provide for and appoint an auditing committee and provide that no claims, though otherwise allowed by the town auditor and town council, could be paid by the town treasurer, except after judgment, unless allowed by such auditing committee. [Ed. Note.-For other cases, see Towns, Cent. Dig. 42; Dec. Dig. § 27.*] JOHNSON, J. This is a petition for a writ of mandamus to compel the respondent town treasurer of the town of Warwick to pay its claim against said town, which has been approved by the town auditor and allowed and ordered paid by the town council. The answer of the respondent is as follows: "(1) The respondent, Herbert W. Barber, town treasurer, admits that the H. P. Cornell Company, a corporation duly organized under the laws of the state of Rhode Island, and located in the city and county of Providence in said state, has a claim against the town of Warwick, a municipal corporation duly created in said state, for goods sold and delivered according to the account annexed to the petition marked 'Exhibit A'; that said goods were delivered to and used in the town asylum of said town of Warwick; that its bill therefor has been approved by Joseph H. Potter, town auditor, and allowed by the town council of said town of Warwick and ordered paid; that the respondent, Herbert W. Barber, of said Warwick, was on the 2d day of November A. D. 1909, elected town treasurer of the said town of Warwick, and has qualified according to law, and has been town treasurer of said town since the 3d day of November, 1909; that there are funds in the hands of the respondent, Herbert W. Barber, town treasurer of the town of Warwick, which are properly applicable and are sufficient for the payment of said claim, and that the respondent, Herbert W. Barber, town treasurer, refused to pay the petition 2. TOWNS (8 63*)-CLAIMS-PAYMENT-Towner's bill, but respondent, Herbert W. Barber, TREASURER-MINISTERIAL DUTY. The duty of a town treasurer to pay claims against a town which have been properly audited and allowed is ministerial. [Ed. Note.-For other cases, see Towns, Cent. Dig. 110; Dec. Dig. § 63.*] 3. MANDAMUS (§ 3*)-CLAIMS AGAINST TOWN -SCOPE OF REMEDY-ADEQUATE OTHER REM EDY. Where a claim against a town had been allowed and audited by the town auditor and by the town council, and was payable by the town treasurer from moneys on hand, applicable and sufficient to pay it, unless it was nonpayable because it had not been allowed by an auditing committee, which the town's financial meeting had no authority to appoint, claimant's remedy by suit at law, authorized by Gen. Laws 1909, c. 46, §§ 13, 14, was not so plain, adequate, and complete as to preclude a resort to mandamus. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 8, 32; Dec. Dig. § 3.*] Dubois, C. J., and Blodgett, J., dissenting. Petition for writ of mandamus by the H. P. Cornell Company to compel Herbert W. Barber, Town Treasurer of the Town of Warwick, to pay a claim against the town. Writ granted. C. M. Van Slyck and Frederick A. Jones, for petitioner. Harry C. Curtis and P. Henry Quinn, for respondent. town treasurer, denies the conclusions of law attempted to be drawn therefrom as to his duty to pay said bill. "(2) This respondent further answering says that on the third Tuesday of November, November 16, 1909, the annual town meeting of said town of Warwick was held within and for said town by the electors qualified to vote at such meeting in said town, and that at said meeting held as aforesaid the following votes, resolutions or ordinances were adopted: 'Voted: That the town treasurer is hereby directed not to expend any money in payment of any bill or claim against the town unless the bill or claim shall first have been approved by an auditing committee to consist of the person named in this resolution who is hereby elected to serve as such auditing committee for one year from this date at a salary of $200, or, unless said claim or bill shall have been reduced to a judgment against the town. And the holder of any such bill or claim against the town shall be left to collect the same by due process of law whenever said auditing committee shall In case of any not have approved the same. vacancy in said committee by death, resignation or otherwise, the committee on town For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 76 A.-51 debt shall elect a person to fill such vacancy, | Laws 1909, c. 46, § 11, the power of the finanand said committee on town debt are hereby cial town meeting to appoint such an agent authorized by this meeting to fill such va- as the financial town meeting appointed in cancy. It is further voted: That all expenditures to be made from appropriations by this meeting voted shall be subject to the above conditions. The particular and especial duty of this auditing committee will be to guard the appropriations made by this meeting by preventing the expenditure of any of said appropriations for any purpose other than those specified by this meeting. He shall see to it that no appropriation is exceeded; that no part of any appropriation is diverted from the particular department for which the appropriation is made; and that orders drawn upon the town treasurer are charged to the proper appropriations. And he shall in every other way possible guard and protect the financial interests of the town. Said auditing committee is hereby authorized and directed to receive and to have possession of all such bills and claims after the same have been passed upon by the town council or school committee, as the case may be, and the town auditor, and he shall return all such bills and claims to the town treasurer's office plainly marked with his approval or disapproval thereof, within five days of the receipt by him of such bills and claims. And it is further voted that Charles H. Allen be and he is hereby elected as such auditing committee.' "(3) This respondent further answering says that he refuses to pay said bill because the same has not been approved by the auditing committee Charles H. Allen elected at said financial town meeting." By stipulation it also appears as follows: "(1) That Joseph H. Potter, of the town of Warwick and county of Kent, in the state of Rhode Island, was, on the eighth day of November, A. D. 1909, elected town auditor of the town of Warwick for the ensuing year, by the town council of said town; and that said Joseph H. Potter has duly qualified and is acting as said town auditor. (2) That Charles H. Allen, of said town of Warwick, the auditing committee elected at the town meeting held on the sixteenth day of November, A. D. 1909, has demanded of Herbert W. Barber, town treasurer, possession of the bill of H. P. Cornell Company, that he might approve or disapprove said bill within five days, in accordance with the vote of the town meeting." the case at bar. Said section reads as follows: "Towns may and shall elect all such town officers as are, or may be, by law required, and may appoint such other officers as by law empowered, and such special agents for the transaction of any town business not by law required to be performed by any officer known to the law, as they may deem expedient." The minority opinion cites Foster v. Angell, 19 R. I. 285, 33 Atl. 406, in which case the court made the same deduction, the statute then being Pub. St. 1882, c. 34, § 11, and held the same to be a sound reason why mandamus would not lie in that case, although it held that the first reason, viz., that the claim was a disputed one, furnished a sufficient ground for the denial of the writ. The court proceeded to say: "It is true that said bills have been approved and ordered paid by the town council, and hence that the relator has taken all the necessary steps to enable him to prosecute his claim against the town in an ordinary action at law. It is also true, as contended by counsel for the relator, that the town treasurer is a ministerial officer; and it is clearly his duty to pay all bills which have been properly audited, unless he can show some error or fraud in connection therewith. Portland Stone Ware Co. v. Taylor, 17 R. I. 35, 19 Atl. 1086; Spelling on Extraordinary Relief, § 1434; Ireland v. Hunnel, 90 Iowa, 98, 57 N. W. 715; In re State House Commission and State Auditor, 19 R. I. 393, 35 Atl. 212, infra. But we do not agree with the contention of counsel for relator that the town exceeded its authority in appointing an auditor, and in requiring that all bills against the town should be approved by him before payment thereof should be made by the town treasurer. Pub. St. R. I. 1882, c. 34, § 11, provides that 'towns may and shall elect all such town officers as are or may be by law required, and may appoint such other officers as by law empowered, and such special agents, for the transaction of any town business not by law required to be performed by any officer known to the law, as they may deem expedient.' The duty of auditing bills against a town is nowhere expressly devolved upon the town council thereof, although it is clearly implied from the provisions of Pub. St. R. I. 1882, c. 34, § 12; yet we see no reason why any town may not rightfully Although the committee appointed by the require, in addition to their approval of said financial town meeting is called in the reso- bills, a further approval by such an agent lution providing for its appointment an "au- as it may designate for that purpose before diting committee," it is to be observed that the town treasurer shall pay the same. In the town treasurer is directed not to expend short, the money in the town treasury havany money in payment of any bill or claim ing been raised by the taxpayers, they eviagainst the town without the approval of dently have the right to surround the dissaid committee. The power attempted to be bursement thereof with all reasonable safegiven by said resolution is far greater than guards. The vote hereinbefore quoted is that of an auditor, as usually understood. tantamount to an ordinance of the town reg |