25 Miss. 221 | Miss. | 1852
delivered the opinion of the court.
The appellee, as one of the executors of the last will and testament of Robert Cherry, deceased, filed his petition at the April term, 1852, of said court, praying that he might be permitted to surrender his letters testamentary, and for a settlement of his account, so far as the administration had extended. At the following August term of the court, the prayer of the petition was granted, and the court allowed the appellee two per cent, commissions upon the appraised value of the estate, besides the same rate of commissions upon the estate received and administered by the executor, after the inventory had been returned.
The question presented for our decision is, that the executor, resigning his trust before a final settlement of the estate, was only entitled to commissions upon so much of the same as he
Another question which may be noticed as important in this class of cases, is, that the law will not allow an executor or administrator to do any act prejudicial to the estate. When he renounces the trust before fully administering it, he does so to promote his own interest. Additional costs, both for the resignation and the appointment of another administrator, have to be incurred. These should in every instance be imposed upon the party surrendering his letters.
It is now proper to state that those several rules have but little bearing upon the ease under consideration. They have
As to the present case, it will be sufficient for us to remark, that we find in the record no flagrant abuse of that discretion vested in the probate court by the statute; and it is only in such a case, that this court would reverse the judgment of the court below.
One other question made by counsel for the appellant is, that the court erred in permitting the appellee to testify in his own case, as to the trouble he had been at in managing the property embraced in the inventory. To this it is only necessary to state, that the law required the executor to preserve and manage in the best manner the said property. To do this certain services were necessary; and his statements amount to no more than such presumptions as the law raises in his favor, supposing that he had discharged his duty. The evidence was, therefore, immaterial.
Decree affirmed.