Gould v. Hays

GOLDTHWAITE, J. — This case comes here on appeal from the chancellor, confirming the report of the master, made in relation to the compensation tq be allowed the appellant [430] as the executor of George Hays ; and the only questions presented arise on the action of the chancellor in overruling the exceptions taken to this report. The appellant qualified as executor on the 22d Jan’y, 1839, and continued to act in that capacity until the 4th of January, 1845; and when this case was last before this court (19 Ala. 438), it was held, that the appellant was entitled to compensation as executor, — that for the services performed by him previously to the act of 1841 (Clay’s Digest, 228, § 39) the amount was to be determined by the law then existing, and that after that period he was entitled to an annual sum under the act last referred to. The order of reference directed the-master to allow such compensation to the appellant as he should deem reasonable and right for his services as executor during the throe first years, by commissions on the receipts and disbursements made by him during those years ; and for the residue of the time which he had charge of the estate, such an annual compensation for his services as should be reasonable, having regard to the amount of labor performed, the responsibility incurred, and the value of the estate ; and by the terms of the order the register was authorized to examine witnesses to establish the extent of the services, as also to the value of the estate, or any other matter pertinent to the inquiry, and also to look to the written testimony in the case. A great number of witnesses were examined, and the register reported as the compensation of the appellant: for the year 1839, 15 per cent, on receipts and disbursements; for the year 1840, 5 per cent, on the receipts and disbursements ; for the year 1841, 5 per cent, on the receipts, and 2| per cent, on the disbursements; for the year 1842, an annual compensation of $1250 ; for the year 1843, $1000; for the year 1844, $1000. On the taking of the account, and after certain of the witnesses had testified as to their knowledge of the value of the estate, and the services rendered by the executor, and after the pleadings in the cause had been read in their hearing, as also the depositions of certain other witnesses as to the value and management of the estate, they were asked by the appellant to state from their own knowledge, and the facts disclosed by the pleadings and evidence, what would be a rea [431] sonable compensation to the executor ; which question, being objected to, was ruled out by the master, and his action in this respect was made the ground of an exception to his report ; which exception was overruled by the chancellor; and as we think correctly, for the reason that it called upon the witnesses to pronounce upon the facts disclosed by the pleadings and evidence in the cause. Conceding for argument’s sake, that the opinion of the witnesses upon the facts established would have been evidence ; still the question propounded rendered it necessary for the witnesses, before giving their opinion, to determine what facts were proved, thus devolving upon them an inquiry which the master alone could determine. In the shape in which it was put, the question was manifestly improper, and the objection to it was properly sustained. The second exception to the report was based upon the question propounded to the witnesses Cox and Collins, which was objected to by the appellant; but we consider it unnecessary to notice this exception, for the reason, that in arriving at the conclusion we have attained as to the compensation allowed, we have excluded the testimony of these witnesses, which is not entitled to the slightest weight, as neither of them states any fact which could lead the mind to any definite or satisfactory conclusion as to the correctness of the opinion they give. Each of them expressly states that he knew nothing whatever as to the extent or the value of the services of the executor', nor does either of them appear to have any knowledge as to the management of the estate by him. Their opinion, therefore, as to the nature and extent of services of which they have no knowledge, is entitled to no consideration whatever. The other exceptions attack the conclusions of the register upon the evidence, and present simply the question, as to whether the testimony in the cause, and that adduced before the register, proved that the appellant was entitled to a greater amount of compensation than was allowed. The practice which has obtained in this State as to compensating executors and administrators, in cases which do not fall within the act of 1841, has been by a percentage on the receipts and disbursements; and the principle to be extracted [432] from the decisions which this court has made upon that subject, is, that there is no,.fixed or uniform rate or limit to this compensation, but that the amount varies according to the circumstances of each particular case. — Harris v. Martin, 9 Ala. 895; Magee v. Copperthwaite, 10 ib. 966; Ashurst v. Ashurst, 13 ib. 781. The services actually rendered, considered with reference to the amount of trouble and the loss of time, and whether they were required or proper to be performed in the management of the trust, — the responsibility involved, measured by the condition, character, and value of the estate, —may very properly enter into the question of compensation; but, as courts, in making allowances to trustees, do not proceed on the principle of specific compensation for services rendered, (Harris v. Martin, supra) care should be taken in fixing the amount, that trusts of this character should not become money-making occupations ; and such would be the inevitable result, if services rendered by trustees were to be estimated according to the rules obtaining between man and man when dealing with each other at arm's length. Compensation, when applied to trustees, means but little, if anything, more than a liberal indemnity. "Wc should much prefer a fixed and definite standard, applicable to all cases, for the reason, that it would be less subject to abuse ; but no such standard has been fixed by law, and the only principles we can lay down for the regulation of the compensation, are those which we consider deducible from the authorities to which we have referred. The court, in making the allowance, is to look to the loss of time, trouble, risk, and responsibility, which are demanded by the nature of the trust, and which is actually incurred, and to allow the trustee such a remuneration as a prudent and just man would, in view of these circumstances, consider a fair compensation, without, however, being governed by the business charges usually made for the like seiwices ; and the rule, as a general one, equally applies to all allowances made to executors, whether under the act of 1841, or without reference to that statute. Having ascertained the pi-inciples which must govern the question under consideration, we deem it unnecessary to go into the evidence in detail. To do so would settle no legal question, and would be but a useless commentary upon the [433] facts. It is enough to say, that after a careful and thorough examination of the whole evidence as found in the record, except the testimony of the two witnesses before referred to, we are satisfied that the allowance made was, under the law as we have stated it, sufficient. The decree is affirmed, the appellant paying the costs of this court.