Askew v. Hudgens

Mr. Justice Sheldon delivered the opinion of the Court: On August 25, 1879, Zachariah Hudgens, administrator of the estate of Oliver H. Wiley, deceased, presented to the county court of Williamson county, sitting for probate business, a report of his acts and doings as such administrator from ¡November 26, 1877, — the time of his last report. Among the items of credit claimed by the administrator were the following: W. W. Clemens, attorney fee, $50; per diem of administrator about business of estate, since last report, 40 days, at $1.50 per day, $60; railroad fare and hotel bills about business of the estate, $23.80; by commission on disbursements and credits asked at this term, being $13,638.52 at 6 per cent, $818.31. All these items were allowed except the last, for commission, which was reduced to $375.95, the allowance by the court in this respect being: on $1000, at 6 per cent, $60; on $6319.26, at 3 per cent, $189.57; on $'6319.26, at 2 per cent, $126.38; total, $375.95. Upon appeal by the administrator from this allowance of commissions to the circuit court, that court allowed the full, amount of commissions as asked by the administrator in his report, to-wit: $818.31, which last order of allowance, on appeal to the Appellate Court for the Fourth District, was affirmed, and an appeal taken to this court. There was clearly error in the allowance of this full amount of six per cent commission, $818.31, claimed by -the administrator. The statute in this regard is as follows: “Executors and administrators, shall be allowed, as compensation for their services, a sum not exceeding six per centum on the amount of personal estate, and not exceeding three per centum on the money arising from the sale of real estate, with such 'additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same as shall be reasonable.” Rev. Stat. 1874, p. 127, sec. 133. There is thus no warrant of law for allowing to administrators, as compensation for their services, a sum exceeding six per centum on the amount of the personal estate. But here the administrator gets an allowance exceeding that sum. He has allowed to him a compensation of $1.50 per day for 40 days’ services, amounting to $60, and then, in addition, has the allowance of this full sum of six per centum. This excess of allowance is plainly erroneous. This is sufficient for the reversal of the judgment, but we would say of the order of allowance in other respects, that Ave see no sufficient reason for increasing the allowance as made by the county judge. The county judge, from his familiarity with the affairs of the estate, Avith the labor and difficulty attending its settlement, and with the amount of any former allowance he may have made, enjoys peculiar means of knowledge for determining what would be the proper amount of compensation to be made to the administrator for his services. And when such judge, in view of all circumstances, has exercised his judgment in the matter, and determined what is the proper compensation to be allowed to the administrator for his services, it should be a plain case of the wrongful exercise of judgment Avhich would justify another court in increasing such allowance. We do not regard the present as such a case. The judgment of the Appellate Court is reversed, and the cause remanded. Judgment reversed,