Pinnell v. Scriber's Administrator

Bullard, J., delivered the opinion of the court. The appellee, as administrator of the estate of J. S. Scriber, presented his account to the Court of Probates, and its homologation was opposed on several grounds by the appellants, who have appealed from a judgment by which their opposition was disregarded. 1 * , . . , . , . , 1 he first item objected to m the account opposed, is the commission charged by the administrator on a sum of ten thousand seven hundred and ninet.v-five dollars and two ..... ' . . cents, winch, it is contended, never came into his hands as administrator, but that it was received from the estate of t^e¡L. father. It appears from the inventory of the estate administered by the appellee, that a claim of the deceased, to a portion of j^g faQiet’s estate, is mentioned, but the amount was not at that time ascertained. If the amount charged, passed through his hands afterwards, and he ivas legally responsible for it, and had a right to receive it as administrator, he had, in our opinion, a right to be paid commissions upon the amount. - • The record shows, that after the appointment of the appellee as administrator of J. S. Scriber’s estate, he sur-reudered to the widow, the present appellant, most of the property mentioned in the inventory, and among the rest the unsettled claim of the deceased upon his father’s succession. r He afterwards presented his account to the Court of Probates, which he prayed might be approved and homologated, an(^ *n which n0 mention is made of the'item of ten thousand seven hundred and ninety-five dollars, and no commission is charged on that amount. The presenting of the present account appears to have been, as relates to that item, an after thought. Whether under these circumstances the adminis- . , . trator be now authorized to charge these commissions, was a [611] question presented to the court below, and decided in favor of the administrator. . where the [i,eunevi-dence, to strike inthe settlement of an administrator’s account, the 'jjj,re~ new trial, We are unable to concur in this conclusion of the Court of Probates. We are of opinion, that this item of the account, ought to have been rejected, and the opposition sustained. The evidence in the record, does 'not enable us to strike a final balance, and in our opinion, justice requires that the case should be remanded for a new trial. ■ It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, be annulled, avoided, and reversed ; and it is further ordered, that the case be remanded for a new trial, and that the appellee pay the costs of appeal.,