Shepard v. . Parker, 35 N.C. 103

Shepard v. . Parker

35 N.C. 103 | N.C. | 1851

This was a petition filed in the county court for an account of the estate of one Morris, and for the payment of a filial portion. An exception was made by the plaintiffs to the amount stated by the commissioner, because the commissions were improper and excessive. The exception was not allowed by the county court, and upon appeal to the Superior Court it was again not allowed, and thereupon there was an appeal to this Court.

We do not accede to the position taken by counsel for (104) defendant, that this Court has no power to revise the decision of the courts below on the question of commissions. Where there is a mistake in the law, or where commissions are allowed contrary to law, as if commissions be allowed upon a retainer of the administrator as adisbursement, or upon the value of slaves who are not sold, but are delivered to the distributees, it is conceded that this Court has power to correct the error, and this distinction is contended for. This Court has jurisdiction when commissions are allowed upon a wrong principle, but not where it is suggested that the commissions are excessive; for the amount of commissions is a matter of discretion, restrained by statute to 5 per cent, and this Court has no right to review the exercise of this discretion. We admit the distinction, but do not concede to it the effect contended for, except to this extent: when the objection is put on the ground of inadequacy or of excess, this Court is not disposed to interpose, unless the amount is clearly inadequate or clearly excessive, for the reason that it most usually happens a more minute investigation *82 of the entire subject of the account takes place in the court below than it becomes necessary to give to it in this Court, and it is therefore proper to presume that the rate adopted in the court below is correct.

But it is asked, Upon what principle can this Court review a matter of discretion which has been acted on in the court below? The distinction is this: When the exercise of discretion is in reference to a matter arising collaterally, and which does not present itself as a question in the cause, the decision of the court below is conclusive, as in cases of amendment; but when the discretion is used in reference to a questionin the cause, the decision is subject to review. For although in one sense it is a matter of discretion, still, being a question in the cause, the appeal which brings up the whole case necessarily brings it up.

(105) The act in reference to the recovery of "legacies, filial portions, and distributive shares" confers on the county court equity jurisdiction to a limited extent, under which those courts enter into all matters connected with taking accounts and settling estates, among which the allowance to executors and administrators is a question presented in every case, and is just as much a question in the cause as allowing or rejecting a voucher; consequently, an appeal carries up the question of commissions to the Superior Court, and to a limited extent incidentally confers equity jurisdiction upon the law side of that court. An appeal to this Court has a like effect. In Walton v. Avery, 22 N.C. 411, this question is discussed, and it is held: "The subject of commissions, as incidental to the settlement of administrators, is within the cognizance of every court exercising equitable jurisdiction in a suit for the purpose of settling those accounts." It was insisted by plaintiff's counsel that as to one item the allowance was wrong in principle, and of course ought to be corrected. The intestate held on one White a note for $12,000. This note the administrator passed over, as cash, to the guardian of some of the distributees; the amount is included under the head of "receipts," upon which commissions are allowed. It is argued, this note, being passed over without the trouble of collection, is like the case of a slave delivered to a distributee whose value is not to be included under the head of "receipts." The argument merited consideration, but we have come to the conclusion that the cases are not the same. In reference to a slave, the administrator has no responsibility; whereas, by not requiring payment of the note, he becomes chargeable for the amount. there is the further consideration: (106) a note passed over in this way is kept at interest all the time. This is for the benefit of the estate, and if the administrator chooses to take the risk, we can see no reason for requiring him to collect any note. It is said, again, in reference to this note, the rate of commissions is clearly excessive. If this was an isolated question, we *83 should have no hesitation in saying that the allowance was excessive. But when we see this was a large estate, involved in a good deal of litigation, although taking it all together we think the commissions are high, yet we do not consider them so exorbitant as to call for interference on our part, in the face of the decision of the county court, which was concurred in by the Superior Court.

PER CURIAM. Affirmed.

Cited: Whitford v. Foy, 65 N.C. 277; Green v. Barbee, 84 N.C. 72;Scroggs v. Stevenson, 100 N.C. 359; Bank v. Bank, 126 N.C. 537.