| Ark. | Feb 4, 1905
(after stating the facts.) 1. No necessity for the sale of real estate, either at'the time of granting of the order in the probate court or the hearing in the circuit court, was shown. All the debts of the estate had been paid by the devisee under the will, and, at most, only a small amount of the cost of administration remained unpaid. No showing is made that funds could not be realized from rents of the property to pay the cost of administration. If it be conceded that any part of the lands of the estate could have been legally sold to pay the cost of administration, the necessity for resorting to that procedure is not shown. It is the policy of the law not to permit the sale of lands of a decedent by the administrator for any purpose when other funds or property are available and sufficient.
2. The debts of the decedent having been paid by the devisee, there was no further reason for continuing the administration; and the letters should have been revoked. Counsel for appellant complains here that his letters of administration should not have been revoked without payment of his fees arid expenses incurred. It is not shown that he had earned any fees except a commission of $1 on the $10 which passed through his hands, and the only settlement account filed by appellant shows that he collected $10, and only paid out legitimately the sum of $3 expenses of administration. The item of $10 paid to the Security Company for bond was. not a proper charge against the estate, as it'is incumbent upon the administrator to furnish his own bondsmen. It is also urged that the fees of the clerk of the probate court had not been paid, but it does not appear in proof that those fees had been paid by appellant. Nor is the clerk prejudiced by the revocation of the letters, as administration upon the estate is continued by the appointment of appellee; and if any fees are still due the clerk, his remedy for the collection thereof is still open.
Appellee also asks a reversal on the ground that the court erred in adjudging the cost of the appeal against him. The judgment in thát respect was proper, as this is a contest between the devisee and the administrator concerning his right to continue the administration, and the cost of the litigation should not have been adjudged against the estate of the decedent. The appellant had stood upon an improper judgment of the probate court ordering payment to him of fees to which he was not entitled as a condition upon which the letters could be revoked and the administration discontinued. He cannot, therefore, complain of being adjudged to pay the costs of an appeal from that order.
The statute fixes the compensation of an administrator at a sum not exceeding 10 per cent, on the first thousand, 5 per cent, on the excess up to $5,000, and 3 per cent, on excess over $5,000, on all sums which pass through his hands, for his entire trouble and risk in attending to the winding up of the estate. Kirby’s Digest, § 134; Ex parte Bell, 14 Ark. 76" date_filed="1853-07-15" court="Ark." case_name="Bell Ex parte">14 Ark. 76; Reynolds v. C. & B. Co., 30 Ark. 520" date_filed="1875-11-15" court="Ark." case_name="Reynolds v. Canal & Banking Co.">30 Ark. 520. If nothing passes through his hands, he is entitled to no fees, even though he may have been subjected to considerable trouble and annoyance in his preparation for the 'administration. He is, however, allowed reimbursement for any legitimate expense incurred.
Upon the whole, we find no error in the judgment of the circuit court, and the same is affirmed.