Newberry's Administrator v. Newberry's Distributees

WALKER, J. Upon the final settlement of the appellant, as the administrator, two credits claimed in the account filed were contested. One of those credits was for twenty-two dollars, and was founded on the alleged payment by the administrator of an account against the estate. The other credit was for fifty dollars, claimed for compensation to the administrator. The court disallowed the credit of twenty-two dollars, and allowed only twenty-five dollars of the credit for fifty dollars. It is contended for the appellant, that the court erred in refusing to allow the credit of twenty-two dollars, and in reducing the credit of fifty dollars. The administrator, in support of the credit of twenty-two dollars, gave in evidence the record of an annual settlement of his administration in the probate court. The annual settlement was preceded by the filing of an account, and the credit of twenty-two dollars is one of the items on the credit side of the account. The decree of the court upon the annual settlement recites, that the administrator “produced satisfactory evidence of each item on the credit side of the [692] account”, and orders, adjudges, and decrees, “ that said account be passed, approved, and allowed.” There was no other proof adduced, on either side, in reference to the item. The credit, having, been allowed on the annual settlement, was prima facie correct; and the administrator, by the record, made out a prima facie case in favor of the credit, and could not be required to adduce further proof, until thé case so made out was successfully assaiied by his adversary. The court, therefore, erred in disallowing the credit of twenty-two dollars upon the proof. — Code, § 1823; Duke's Adm'r v. Duke's Distributees, 26 Ala. 673. The bill of exceptions shows that the administrator rendered no other than the ordinary • services incident to his office. The probate judge was of opinion, that those services were worth more than twenty-five dollars; but he refused to allow more than that sum, becáuse two-and-a-half per cent, on the receipts and disbursements only made that amount. We think the decision of the probate judge on this point was correct. Section 1825 of the Code is as follows i “Executors and administrators may be allowed such commissions, on all receipts and disbursements by them as such, as may appear to the probate court a fair compensation for their trouble, risk and responsibility, not to exceed two-and-one-half per cent, on the receipts, and the same per centage on disbursements; and the court may also-allow actual expenses, and for special or extraordinary serviceSj such compensation as is justf The language of this section of the Code leaves no room for doubt, that the ordinary services of an administrator are intended to be compensated by the two-and-one-half per cents commissions, and that it is only for actual expenses and for special and extraordinary services that a compensation additional-to the two-and-one-half per cent, can be allowed; Before the adoption of the Code, it was the usual practice in this State, to compensate trustees and receivers by a com* mission; and the courts did not favor the allowance of special compensation for particular services. — Gould v. Hays, 25 Ala. 426; Ashurst v. Ashurst, 13 Ala. 781; Magee v. Cowperthwaite, 10 Ala. 966; Powell v. Powell, ib. 900; Harris v. Martin, 9 ib. 895. The Code has converted into unbending law, what was before the usual practice, and pre [693] scribed a fixed rate of compensation. If the compensation be so inadequate, where the estates are very small, as to lead to public inconvenience, it is the province of the legislature to remqjly the evil. The decree of the court below is reversed, and the cause is remanded, with directions to the court below to .proceed in accordance with this opinion.