Opinion. (which include his widow) are entitled to the property after the payment of taxes, expenses of administration and debts of the decedent. It is true that there is no statute in Virginia placing any limitation of time upon the probate of a will. Nor, on the other hand, is there any provision of statute in favor of or saving any rights of persons taking personal property under an unknown and unrecorded will, as against distributees, as there is of the rights of persons taking real estate under an unknown and unrecorded will. By section 2547a of Pollard's Code of Virginia, such a saving of rights in real estate is made for a period of seven years. It is the duty of an administrator to distribute the .personal estate after the payment of debts. 7 Am. & Eng. Encycl. Law, p. 315. It is also his right so to do. 18 Cyc., p. 594. It is out of regard for creditors only that administrators cannot be "compelled" to make distribution of the estate within the year from their qualification. So that where there are no creditors, there is nothing in our statute law to forbid an administrator from distributing the personal estate within the year. And the true policy of the law, in the absence of such a statute, would seem to favor a reasonably prompt distribution amongst those entitled under the statute of distributions, rather than a holding of the estate by the fiduciary for the year. Such holding in such a case as that we have under consideration would be for his own benefit alone; since it would not be for the payment of debts, because it is known that none exist or the fiduciary is willing to take that risk; and not to await the possibility of the discovery of a will, since, as aforesaid, there is no statute fixing any period for the probate thereof, were one discovered, and if that chance is to be eliminated, under the law in Virginia as it now stands, the fiduciary could never distribute the estate. [12] As we think, the duty of an administrator to distributees under the statute is to distribute the estate with Opinion. reasonable diligence; and with respect to distributing the estate, notwithstanding the possibility of the existence of an undiscovered will, that possibility always exists; and if the administrator acts with reasonable diligence to ascertain whether a will exists, and when acting with reasonable prudence in that regard, does not think and has no reasonable grounds to think that a will exists, he may safely distribute the estate, so far as persons taking under a then unknown and unrecorded will are concerned, whether it be within the year of, or after the expiration of the year from,. the qualification. Certainly such must be the rule after the expiration of such year; otherwise, as above indicated, nopersonal estate could ever be distributed without placing a liability of personal responsibility on such a fiduciary, which the measure of care and diligence on his part which is fixed by law (11 R. C. L., p. 140-2), does not warrant; and we do not feel that there is any principle on which any different rule can be made applicable within the year. We come now to consider certain assignments of error by appellee under rule VIII of this court, which is invoked in the reply brief for appellee. These assignments of error will be considered in their order as stated below. [13] 6. Section 2679 of the Code is invoked by appellee against the allowance of any commissions to the guardian. This statute, so far as material, is as follows: "If any fiduciary wholly fail to lay before such commissioner a statement of receipts for any year, within six months after its expiration, and though a statement be laid before the commissioner, yet if such fiduciary be found chargeable for that year with any money, not embraced in this statement, he shall have no compensation for his ser· vices during said year, nor commissions on such money unless allowed by the court. * * (Italics supplied.) The italicized words were added to this statute in the enactment of 1867. Under the statute as it has since stood, Opinion. the court will allow commissions to a fiduciary on receipts as to which he is in default under the statute, only to the extent that he gives a reasonable excuse for such default. See authorities cited to Section 2679, 1 Pollard's Code 1904.. [14] As appears from the statement preceding this opinion, the guardian laid before the commissioner of accounts. statements of his receipts for the first three years of his guardianship and for the year September, 1915, to 1916 within six months after his qualification and after the expiration of such subsequent years; but that he failed to do this for the years September, 1913-1914, September, 19141915; and that for the years he did settle his ex parte accounts as guardian, he did not embrace in his statement some $3,333.33, being the portion of his ward's estate derived from the Farmville mill stock of S. H. Bliss' estate, and some $1,665.49 derived from other assets of the latter estate. He accounted, however, in the ex parte settlements he did make, as it would seem from the record, for the dividends he received on six shares of such stock of the value of $3,000 from September, 1910, up to September 23, 1916. This was done in good faith, as it would seem from the record, and we think furnishes a reasonable excuse pro tanto for. the default of the guardian under consideration. But that leaves him still in default in not charging himself with $333.33 of said $3,333.33 and with said $1,665.49, or an aggregate of $1,965.49 of the receipts with which he is found chargeable; and the record shows no reasonable excuse for this default or for the failure of the guardian to settle his ex parte accounts for the two years, September, 1913-1914, and September, 1914-1915, aforesaid. We are, therefore, of opinion that the guardian, in the settlements of his accounts, should be allowed no commission on $1.965.49 of the said sum of $5,998.82 with which he is chargeable as derived from the estate of S. H. Bliss, deceased as aforesaid; and that he should be allowed no Opinion. commissions on his receipts for the years September, 19131914, or September, 1914-1915, aforesaid. [15] The commissions to which the guardian is entitled should, of course, be credited as of his rest-day at the end of each yearly statement in the settlement of his accounts which is to be made. [16] In this connection we will say that since the fixing of a rest-day of fiduciaries is within the reasonable discretion of the commissioner settling their accounts and of the court acting thereon, and since the appellant, as administrator of S. H. Bliss, deceased, treated the funds in his hands. as distributable prior to the expiration of the year after his qualification as such, and since the qualification of a fiduciary will be treated as relating back to the beginning of his action as such, when such action antedates his qualification, we approve of the statement in the decree under review in its provisions fixing September 1, 1910, as the date for the beginning of the account of the appellant as guardian, and the latter, under the statutory rule on the subject (Sec. 2608 of the Code), should be charged with interest on the $5,998.82, above mentioned, as received from the estate of S. H. Bliss, deceased, as aforesaid, from September 1, 1910. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112. As to the dividend on the ten shares of bank and three shares of warehouse stock derived from the estate of P. B. Bliss, deceased, the guardian should be charged with his receipts of same during each current year of the yearly statements of his accounts, the interest thereon to be debited by charging interest on the yearly balance found in the guardian's hands. [17, 18] 7. The appellee invokes the rule applied in the case of Gregory v. Parker, 87 Va. 451, 12 S. E. 801, and the authorities therein cited, against the allowance of any commissions to appellant as administrator of S. H. Bliss, deceased, on the twenty shares of Farmville mill stock, on the ground that the administrator had no authority to convert Opinion. that stock into money, since it was not necessary to do so to pay debts of such estate and that he did not in fact convert it into money, but retained it in kind and distributed it in kind between himself and his ward as distributees or devisees of that estate. The rule invoked is well established, and is a sound and just rule in cases to which it is applicable. It does not permit of commissions being allowed to fiduciaries on unconverted assets which are distributed in kind or which should have been so distributed, except under peculiar circumstances (Allen v. Virginia Trust Co., 116 Va. 319, 82 S. E. 104; Darling v. Cumming, 111 Va. 637, 69 S. E. 940). But the position taken by appellee in the bill in this cause makes such rule inapplicable therein. The bill insists upon the liability of the guardian for the money value of said stock as fixed by the decree under review, and which was also so fixed by the ex parte settlement of appellant as administrator of S. H. Bliss, deceased, and by the master commissioner's report in the cause. Appellee is bound to the theory that the stock has been converted into money by the position taken in the bill that the guardian is chargeable with such money value. The appellée, in insisting upon such theory and upon the guardian being so bound, cannot, when such position is sustained by the court, insist that the guardian should not be allowed commissions on such value because of a different theory. A litigant may not be allowed to take different and inconsistent positions in the same proceeding, but must abide by his position taken and by the issues by himself made in the pleadings. We conclude, therefore, that the assignment of error under consideration is not well taken. [19, 20] It should be here noted that the bill also seeks to hold the guardian chargeable for the money value of the specific property which came into his hands in kind from the estate of the grandmother of his ward. But the court |