36 Ala. 330 | Ala. | 1860
When this case was here before, we held that the effect of section 2039 of the Code was, to render section 1825 applicable to guardians, as well as to executors and administrators. — Allen v. Martin, 34 Ala. 442. The plain intention of the legislature, in making section 1825 applicable to guardians, was, that they should receive the same compensation for .the performance of the ordinary duties of their office, which is allowed executors and administrators for the performance of the ordinary duties of the office of executor or administrator; and that they should also be allowed “actual expenses, and.'for special or extraordinary services such compensation as is just.” The offices of guardian and administrator are different, and each has its respective ordinary and extraordinary duties. Some of the services which belong to the ordinary duties of a guardian, might, if performed by an ’administrator, be justly considered as extraordinary ; and viceversa. For the performance of the duties which attach as ordinary incidents to the particular office, the only compensation authorized by law is in the shape of commissions.upon the moneys received and disbursed; and these are limited to two-and-a-half^er cent, upon tile receipts, and the same per-centage upon the disbursements; while, for the discharge of special oi” extraordinary services — that is, of those which do not form a part of the customary or regular duties of the office — such compensation may be allowed as, under the circumstances of the particular case, is just. — Code, §1825 ; Newberry v. Newberry, 28 Ala. 691; Reese v. Gresham, 29 Ala. 91; Allen v. Martin, supra.
On the final settlement of the appellee, the probate court allowed him two-and-a-half per cent, commissions on his receipts and disbursements, and a considerable additional amount, not as' actual expenses incurred in discharging his duty as guardian, but as compensation for services rendered by him in lending the funds of his ward.
Independent of any statute upon the subject, it is one of the ordinary duties of a guardian to invest the surplus funds of his ward, and make interest thereon, whenever it is practicable to do so. — Hill on Trustees, §§368-9; 2 Kent, 230-1. Section 2024 of our Code is in these words: “It is the duty of the guardian to manage the estate of his ward frugally, and to improve it to the best of his skill and ability. lie must, if practicable, lend out the surplus money of the ward, on bond and mortgage, or on good personal security; and if the bond is not renewed annually, require the interest to be paid at the end of each year.” When a guardian lends out the surplus money of his ward, and either renews the note annually, or collects the interest at the end of each year, he performs one of the universal, certain, and ordinary services incident to his office. Eor such services, the only compensation which the law allows him, is such as may be furnished by the regular commissions upon his receipts and disbursements. — Authorities supra ; see, also, O’Neill v. Donnell, 9 Ala. 734.
Peculiar circumstances may sometimes render the discharge of an ordinary official duty unusually difficult and troublesome. The case of O’Neill v. Donnell, 9 Ala. 734, seems to decide that this circumstance would not affect the measure of compensation. If it be conceded, however, that in such a case, the extra labor and trouble necessary to the discharge of the duty would fall under the denomination of “special or extraordinary services,” the concession would be of no avail to the appellee. The bill of exceptions repels the idea, that the guardian would have found any special difficulty in pursuing the directions
The probate court erred; in allowing the guardian any compensation, beyond two-and-a-half per cent, commissions on his receipts and disbursements, for the services performed in lending out the funds of his ward, and compounding the interest thereon.
Decree reversed, and cause remanded.