22 N.C. 405 | N.C. | 1839
The argument for the defendants denies the power of the court to reexamine the question of commissions; and if the power exists, then propriety of the alterations made by the decree is denied. It is supposed that the jurisdiction of the county court is exclusive, and therefore, that the determination of the court is conclusive upon all others. This position rests upon the wording of the act as included in the Revised Statutes, ch. 46, sec. 29, which uses the words "courts of pleas and quarter sessions are authorized", etc. But that phraseology is not found in the act of 1799, which speaks of courts generally. We do not suppose that this change of language is material; but it is noticed for the purpose of showing that of the jurisdiction be in the county court, it arose originally out of the nature of the subject, and not out of an express grant to that court by statute, that might perhaps impart exclusive authority over the subject. We do not doubt that the court, in the contemplation of the Legislature, is (410) that in which the administration account is to be rendered, upon which the commission is allowed; and, therefore, that ordinarily the county court is meant. But it does not thence follow that the allowance of that court is absolutely definitive and conclusive for all purposes, however erroneous in point of law, or unjust it may be in its operation. From necessity, is indeed so in trials at law, on the plea of fully administered. Juries are incompetent to the determination of the proper rate, and cannot have before them the data for fixing a just allowance. Different juries, too, might think differently as to the time and trouble of the executor, and of the value of time and responsibility; so that as to one creditor a full administration would be found, and as to another would not, as the commission was made more or less by the jury. Hence in Hodges v. Armstrong,
It becomes, then, our duty to consider of the proper subjects of commission in this case, and of is rate, and to determine on these points between his Honor and the county court. In the first place, we desire it to be distinctly understood that although we do not deem the ex parte order for commissions conclusive, yet we regard it as entitled to much respect, and that it is not fit to vary it unless it be founded on a mistake of the law or the rate be clearly excessive. The transactions of executors are often affairs of the vicinage, and the magistrates frequently possess personally the information requisite to a just determination. But at the same time it is well known that while the law intends the commission as a bare compensation for trouble, time, and responsibility, many persons look upon the office of executor as one of profit, and endeavor to render it such by the emoluments contrived for it. It is, therefore, often proper to reduce the commission, even when it is allowed in numero, or after a fixed rate on a specified sum. In the present case, however, the order is so loose in its terms as to admit of abuse, and for that reason ought to be reformed. It was made in January, 1836, and "allows 5 per cent on the receipts and disbursements of the estate." In October following, the administrators made up their accounts, under the inspection of the auditors; and therein for the first time it is seen what they call "receipts and disbursements of the estate," for the order of the court neither specifies any sum on which the commission is to be calculated nor gives the amount of it, but only declares the rate. The order was probably construed by the auditors contrary to the intention of (334) the court. But if not, we are confident that specific articles, inventoried merely by an executor and delivered to a legatee, are not "receipts" within the meaning of the act on which a commission is to be calculated. We have already so expressed our opinion in Spruill *335 v. Cannon, ante, 400. We are not aware of its ever having been done, much less that it is usual. It may be very proper to take into consideration the trouble of managing the slaves in estimating the commission on the receipts, properly speaking. But the law provides no means of putting a value on the slaves so as to lay a foundation for a commission. We are equally clear that a set-off in reduction of a debt to the intestate does not fall within the description of "receipts". Suppose there were set-off to all the debts. Could the administrator repel the last, upon the ground that if allowed there would be no fund to pay his commission? The balance is the true debt in case of set-off; and that balance is the receipt within the statute. So the bonds, which were in the hands of the intestate as a trustee, did not belong to him; and delivering them to the true owners was not an "expenditure" for the estate of the intestate. These items amount together to $8,940.22, and thereon a commission of 5 per cent, viz., the sum of $447.01, was improperly charged under the order of the county court. In our opinion, his Honor was right in disallowing it as far as he did; and he ought to have gone further, and refused the commission of $31.25 given on the value of one of the slaves — in which particular the decree must now be corrected.
The commission on the residue of the estate, which the administrators paid over in bonds to the guardian, the decree reduces from 5 to 2 1/2 per cent, allowing on $50,818.29 the sum of $1,270.45, instead of $2,540.90. We approve of the decree in this respect, and accordingly affirm it. Regularly, there ought to have been a reference to the master to state the facts specially, and to settle the allowance; and so, if either party had requested it, or if the facts had been uncertain or complicated, it would doubtless have been directed. But in this case almost the whole subject of controversy is the question of commissions, and the charges of the bill and statements of the answer are special and (413) circumstantial as to all matters that can affect the decision. The cause is tried upon the bill and answers, so as to give the defendants the full benefit of their own statements as being entirely true. Taking the answer as our guide, we concur in the opinion of his Honor on the point under consideration, and therefore do not deem it necessary to send the case to a master. By the decree, after deducting the before mentioned sum of $31.25, the allowances of the defendants amount to $2,820.53 1/2. The burden of the administration was much lightened by the agreement of the guardian to accept the bonds instead of the money, which enabled the administrators to avoid much responsibility, and to close the business at comparatively an early day. The estate was principally paid over in less than two years, and we think the sum fixed must fully compensate for the time and trouble of these gentlemen in doing the business of the estate, while they were at the same time attending to their own. The *336 management of the estate seems, indeed, to have been unexceptionable, and the accounts perfectly plain and true; for in no respect are they questioned, except on the point of the allowances solely. The administrators ought, therefore, to be amply compensated; and in adopting the sum mentioned, we consider that they are thus compensated.
We do not, however, approve of the charge of interest against the defendants, and especially from the period specified in the decree. The defendants have not sought any delay in this suit, not even that of having process served in the ordinary course. They answered at once, and in a full and precise manner, so that the plaintiffs set down the cause to be heard instantly upon the defendants' own statements. This shows no consciousness of error, but, on the contrary, that the defendants believed they had no money but their own. In reality, they retained by an authority apparently lawful and without fraud on their part or objection from the other side. They could not suppose they owed the plaintiffs any sum whatever, much less know what it was. Until the bill was filed, therefore, it does not seem there was any ground for charging interest; and in that respect, also, we think the decree must be corrected. With those modifications, the decree must be affirmed; but we do not think it a case for costs, either in the court below or in this (414) Court.
PER CURIAM. Affirmed.
Cited: Shepard v. Parker,
Dist.: Walton v. Erwin,
