Thigpen v. Farmers Banking & Trust Co.
165 S.E. 720
N.C.
1932
Check Treatment
Clarkson, J.

This is an action brought by plaintiffs, wbo are the sole legatees and devisees, widow and children,' under the last will and testament of Dr. "W. J. Thigpen, against the Farmers Banking and Trust Company, executor under said last will and testament of the said Dr. W. J. Thigpen. Tbe said Farmers Bank and Trust Company, is now merged with the defendant North Carolina Bank and Trust Company, defendant. C. S., 135; Fisher v. Trust Co., 138 N. C., at p. 98; S. v. McCanless, 193 N. C., 200; In re Estate of Wright, 200 N. C., 620.

The matter was referred by the court below to V. J. Bone, Esq. In the record we find “It is admitted by all parties that said order of reference was duly and properly made by consent of all parties.” Tbe referee found certain facts and based bis conclusions of law thereon. It is contended by plaintiffs that be fаiled and omitted to find certain material facts, among them, the following: “That the total advancements ‍​​​​‌‌​‌​​‌‌‌​‌‌​​​​‌‌‌‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌‌‌‌‌​‍in money overpaid said croppers аs aforesaid, from the date of executor’s qualification to 4 January, 1930, amounted to $206.98, for which amount the executor should be liable to account to the plaintiffs.” Snipes v. Monds, 190 N. C., 190. This was sustained by the court below and allowed the plaintiffs. There was sufficient competent evidence to sustain tbis finding of fact. Both thе plaintiffs and defendants made numerous exceptions and assignments of error to the referee’s report, and appealed to the Superior Court. The Superior Court rendered judgment as set out in the record, and both plaintiffs and defendants made numerous exceptions and assignments of error and appealed to the Supreme Court.

Tbe contentions of plaintiffs were bottomed on tbe alleged negligent mismanagement of tbe estаte of Dr. W. J. Thigpen by the executor, tbe defendant Farmers Banking and Trust Company, now merged with defendant North Carolina Bank and Trust Company. Tbe action is in tbe nаture of a bill in equity to surcharge and falsify tbe executor’s account.

Section 4 of tbe will is as follows: “It is my will and desire that my executor proceed tо pay all debts against my estate as soon as possible, and to that end is authorized to sell such part of my estate, real or personal, ‍​​​​‌‌​‌​​‌‌‌​‌‌​​​​‌‌‌‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌‌‌‌‌​‍without order of court, publicly or privately, as may be neces *294 sary to provide such funds, and to close the administration of my said estate as early as possible after my death."

In Gay v. Grant, 101 N. C., at p. 209, citing numerous authorities, the following observаtions are made: “It has been often held that an administrator is not an insurer of the estate committed to his charge. If he exercises the diligence аnd care in collecting and securing the assets of the estate which a prudent and faithful man would in the management of his own property, and losses occur which he could not prevent, he will not be charged with such losses. He is only required to be honest, faithful and diligent.”

In Moore v. Eure, 101 N. C., at p. 16, we find the following: “Good faith and the use of ordinary care and reasonable diligence are all that can be required of executors and administrators, whether resident or nonresident. They are not insurers. DeBerry v. Ivey, 2 Jones Eq., 370; Nelson v. Hall, 5 Jones Eq., 32.” The above principle is well settled ‍​​​​‌‌​‌​​‌‌‌​‌‌​​​​‌‌‌‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌‌‌‌‌​‍in this jurisdiction.

In regard to public officers, the rule is different. They are insurers, including such losses as arise from the act of God or the public enemy. Indemnity Co. v. Corporation Commission, 197 N. C., at p. 564. The “hard rule upon public officers” has never been held to apply to executors and administrators. Moore v. Eure, supra.

C. S., 157, in рart, is as follows: “Executors, administrators and collectors shall be entitled to a commission not exceeding five per centum upon the amount оf receipts and expenditures which shall appear to be fairly made in the course of administration, and such allowance may be retainеd out of the assets against creditors and all other persons claiming an interest in the estate. In determining the allowance the trouble and time exрended in the management of the business shall be considered,” etc. It will be noted that the act says "not exceeding 5 per centum.” Then again, in determining the allowance 5 per cent “the trouble and ‍​​​​‌‌​‌​​‌‌‌​‌‌​​​​‌‌‌‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌‌‌‌‌​‍time expended in the management of the business shall be considered.”

In Peyton v. Smith, 22 N. C., at p. 348-9, we find: “The defendant’s exceptions, relate to the quantum of commissions allowed to the executor; to the subject-matter of commissions, and the mode of computation. It is so difficult for this Court to ascertain, by any means in its power, what is the reasonable rate of commissions called for in any case, by the nature of the services, labor, and responsibility of the trustee, that it is much disposed, in general, to rely, in this respеct, on the judgment of the master. In this case however, the Court perceived a safer guide for the exercise of its discretion, and will follow that guide. It appears that, on one occasion, when the accounts of the executor were audited in the county court of Warren, and when the аuditors recommended that *295 there should be allowed to the executor a commission of 5 per centum on his receipts, and 5 per centum on his disbursеments, the court, nevertheless, ordered that his commission should be limited to 4 per cent, on each. The Court, therefore, overrules the allowanсe of 5 per cent as made by the master, and sanctions the rate established by the county court.”

The general rule in small estates is an allowanсe of 5 per cent on .receipts and 5 per cent on what is termed technical disbursements, but under the statute “the trouble and time expended in the management of the business shall be considered.” There seems to be no hard and fast rule in regard to the commission “not exceeding 5 per centum.” Teсhnical disbursements “forbid commissions on the payment of legacies and distributive shares. Potter v. Stone, 2 Hawks, 30; Clarke v. Cotton, 2 Dev’xs. Eq. Rep’ts, 51.” Bank v. Bank, 126 N. C., 539-40.

We set forth the general principle of law which ‍​​​​‌‌​‌​​‌‌‌​‌‌​​​​‌‌‌‌​​​‌​‌‌‌‌​‌​‌‌​‌​​‌‌‌‌‌​‍governs the controversy in this action. In Trust Co. v. Lentz, 196 N. C., at p. 406, we find: “In view of the position taken by some of the .parties that the judge was without authority to change the report of the referеe — the reference being by consent — it is sufficient to say that, in a consent reference, as well as in a compulsory one, upon exceрtions duly filed, the judge of the Superior Court, in the exercise of his supervisory power and under the statute, may affirm, amend, modify, set aside, make additional findings and confirm, in whole or in part, or disaffirm, the report of a referee. Contracting Co. v. Power Co., 195 N. C., 649, 143 S. E., 241; Mills v. Realty Co., ante, 223, 145 S. E., 26.” C. S., 578, 579; Wallace v. Benner, 200 N. C., at p. 129-30.

We find in Thompson v. Smith, 156 N. C., at p. 346, citing numerous authorities, the following: “We have said that where the evidence hаs been considered by the referee and by the judge, upon exceptions to the referee’s findings, we will not review the judge’s conclusions as to them, because the appellant has had two chances, and when two minds — one at least, and perhaps both professionally trained and accustomed to weigh evidence and to compare and balance probabilities as to its weight— arrive at the same conclusion, there is a strоng presumption in favor of its correctness, or the same is true, even when the judge differs from the referee as to his findings, and we may safely rely on its corrеctness. The referee is selected, in such cases, in place of a jury, and the judge so acts when he reviews the referee. If there is any evidеnce to support the findings and no error has been committed in receiving or rejecting testimony, and no other question of law is raised with respect tо the findings, we accept what the judge has found as final, as we do in the case of a jury.” Caldwell v. Robinson, 179 N. C., at p. 521; Wallace v. Benner, supra.

*296 It is well settled that the burden is on appellant to show prejudiciаl or reversible error and he must show material and prejudicial error amounting to denial of substantial justice.

We have heard the arguments and read the record and the well and ably prepared briefs on both sides of this controversy. We see no reason why the judgment of the court below should be disturbed. The judgment of the court below is

Affirmed.