Bedell's Appeal

Mr. Justice Sterrett delivered the opinion of the court, January 7th 1878. [400] The first assignment is, that “ the court erred in not allowing the administrators the sum of $339.27, which they claimed for their whole services, and in reducing the same to $136.54.” In their account, the appellants made no claim for compensation or services, as such. They claimed “ credit for their commissions on the debit side of their account, five per cent, on $6783.43.” This sum included the bond of Joel Bedell $2834.83, for which they took credit as uncollected, for the reason that the obligor was insolvent. The court, however, found that the bond had been paid in the lifetime of the intestate. It also included payments made by A. W. Bedell, one of the appellants, on his own mortgage, during the lifetime of his father, amounting to $1213.90. These payments were credited after his father’s death and fully satisfied the mortgage. The learned judge of the Orphans’ Court refused to allow the commissions claimed on these two sums, because, as he says, “ the former was not administered at all, and the latter were not legitimate subjects of charge and discharge in the administration account;” and then he adds, “ administrators may be allowed for adjusting a balance, but commissions on credit or set-off is not the proper measure of compensation, and especially is this so when one of the administrators is the debtor, as in the present case.” The court was clearly right in reducing the amount on which commissions were charged. There was no claim for adjusting balances, or for compensation generally, nor does it appear to us that there would have been just ground for allowing any in addition to the commissions on all the items that were proper subjects of charge and discharge in the account. The debit side of the account is composed of but two items in addition to the aggregate amount of the inventory; and a large portion of the credit side of the account .is made up of the items of credit which were applied to the satisfaction of the mortgage, and to the note of one of the appellants. The balance of James McKown’s bill was properly allowed. The evidence before the court was quite sufficient to sustain his claim. The third and fourth assignments relate to the distribution of the balance, ascertained to he in the hands of the accountants, or rather the amount that should have been in their hands for distribution. They had paid general creditors of the estate, in full, to the amount of $903.40 and $50 to James McKown on account of his claim. McKown was the only claimant on the fund for distribution, and inasmuch as there was not sufficient actually in the hands of the accountants to pay him in full, he was entitled to his distributive share of the whole fund, including that which had been paid out. In order to give him this, it was necessary to ascertain the per centum that each creditor would have been entitled to receive, if none of them had been paid, and charge the accountants with the excess paid to creditors over their pro rata shares. The principle on which this was done was entirely correct, but the clerk, by mis [401] take, included in Ms schedule of surcharges, the excess on the §50 paid to McKown. The effect of this was to give Mm the $50 entire and Ms pro rata on the residue of his claim, when he is only-entitled to a dividend on the whole. This dividend, after deducting the §50 paid on account, is found to be $797.09. While for the purposes of distribution, the accountants are surcharged with the amount paid by them to creditors, in excess of their pro rata share, they will be entitled to take credit for this amount, viz., $272.14 in their next account. By correcting the slight error already noticed, the amount found to be in the hands of the accountants applicable to costs and to the claim of James McKown, is as follows, viz.: Balance, as per account filed .... $352.82 Commissions disallowed and surcharged . . 202.63 Over payments to creditors .... 272.14 Making in all 827.09 Deduct costs, clerk of Orphans’ Court $12 do. Supreme Court 18 30.00 . $797.09 Balance, payable to James McKown With the foregoing correction and modification the decree of the Orphans’ Court is affirmed and the appeals dismissed, and it is ordered that the costs, as above deducted, be paid by the appellants out of the funds in their hands.