Gwynn v. Dorsey

Earle, J., delivered the opinion of the court. This case presents three questions for consideration. They were decided by the Orphans Court of Anne Arundel county, and are brought before us, on the appeal of William, Gwynn, in a dispute concerning the settlement of the administration accounts of his debtor, George Howard of Brice, on whose estate Roderick Dorsey administered. The Orphans Court made certain allowances to the administrator, which William Gwynn thought objectionable, and refused to make him account for interest, with which it was contended he was chargeable. In making the allowance to the administrator of $ 17 28, for so much paid by him to Samuel Brown, Jr. for commission on money collected, we think the court erred in judgment. This collection, the administrator ought to have made himself, and should not have burthened the estate with the expense of it. The collector was not a public officer, by the usage of the country entitled to commissions, (if there be any such usage,) nor was resort had to legal process, or the intervention of an attorney at law, to compel the payment. In the last case the expense of the collection may be defrayed by the estate, and we observe that many expenditures of this kind were allowed in the last account passed by this administrator. While on the argument of this question, it was urged by the appellant’s counsel, that the administrator’s commission was improperly allowed by the court, on passing his second account, and that the allowance ought to have been deferred for the last or final ac [460] count. This point is not within either of the three questions decided by the Orphans Court, and perhaps, in strictness, we have nothing to say to it. We have, however, no hesitation in declaring that we do not agree with the counsel on this subject. The Orphans Court have a limited discretion with regard to the amount of the administrator’s-commission, and no good reason can be assigned why they should not have a like discretion, as to the time and manner of making the allowance. Of course, they would aim to make the commission allowed correspond with the duties performed, and in passing every account, would look to the advance made by the administrator in the administration of the assets, in bestowing on him the reward of his services. The sum lost by the insolvency of the Shipleys, we are of opinion, the court were right in passing to the credit'of the administrator, in his last account. It amounted but to seventy-two dollars, and from aught that appears, Edward Shipley was fully competent to its discharge, when he entered into the bond with Levy Shipley, as his security for the payment of it. Nor was the administrator remiss in using ordinary diligence, for the recovery of this debt after it became due. At the next term but one thereafter, he instituted a suit for it, and in the due course of the courts, obtained a judgment, and issued a fieri facias. It was, therefore, not lost by his negligence, unless indeed, passing by one term of the court without suing, is to be taken as an evidence of it. Such strictness, we think, was not required of the administrator; and if this was once pronounced tobe the law, we are assured that prudent men, and those most worthy of the office, would seldom be found engaged in the settlement of intestates’ estates. Whenever an administrator manifestly intends fairly to do his duty, the rule should be not to hold him liable upon slight grounds. The question upon the subject of interest is the most important one at present under the review of the court. It is worded thus: Whether or not the administrator should be charged with a larger sum for interest? Before it was sub [461] mitted to the Orphans Court, he had been charged with interest received on the bonds taken for property sold, and as little was said on the argument in relation to this fund, we supposed the appellant to have been satisfied with the adjustment made of it. In his petition, the appellant seems to have had another object, in view. He appears to have been in quest of interest on all sums received and misapplied by the administrator, and this demand brings before us a point, now for the first time perhaps, to be settled in this State. It is, how far the Orphans Courts have the power to make an administrator account for interest on money belonging to the estate, which he has applied to his own use, or neglected to(Sdistribute and pay over? This is a familiar subject in equity as applied to trusts, and we see no well founded reason why the power should not be exercised in the Orphans Courts, and more especially, since the case of Hull and Griffith, decided in this court, (see 2 Harr, and Johns. 483,) where an administrator was made to account in the Orphans Court of Harford county, for the labor of negroes belonging to the estate of his intestate, which he employed in his own service, and for his own purposes. If this authority is with the Orphans Court of Anne Arundel county, a further inquiry is, whether it ought to have been exerted in calling this administrator to account for interest on the money of the estate he unreasonably held in his hands, or applied to his own use, and we clearly and decidedly think it ought. There is but little testimony in the case, and that little not very explicit; yet we are of opinion, there are sufficient grounds established on which to call Roderick Dorsey to account for some interest. Had he fully answered the demands of the petition, he would have disclosed the sums he received of the purchasers of the property, sold under the order of the court, and the periods at which they were respectively received; but as this is not done, there is evidence only in the case to make him account for interest, for a part of the $1144 44| he received at the time of the sale. We do not, with the counsel, blame him for receiving this [462] money of the purchasers, who were prepared to pay, rather than give bond with security; for in this he was certainly right. The object of the Orphans Court, in ordering the sale of the property of the deceased, is to convert it into money as expeditiously as is consistent with an advantageous sale. All the benefits contemplated by a credit sale, were obtained by the administrator in this case, and, therefore, we sustain his conduct. Butin this decision, we wish to be distinctly understood as confining it to sales made under the authority of the Orphans Court. His imputed fault is, in holding the money in his hands, or in applying it to his own purposes. His second account was passed the 21st January, 1829, and his commission, disbursement, and other expenses, allowed to that time, amounted only to $656 28J, which demonstrates that there remained in his hands for nearly two years, the sum of $488 15|. On this sum he ought to be. held to account for interest, from the time he received it, if he applied it to his own use and profit, and from the end of thirteen months after the date of his letters, if he kept it by him without any apparent reason, and omitted to make distribution of it, as he ought to have done among the creditors. This they were entitled to have, made within that time, by the act of 1798, ch. 101, sub-ch. 8, sec. 14, and if they were disappointed in the receipt of their dividends, by his culpable inattention to duty, it is but just that he should be charged with interest lost to them by his neglect. The order for the distribution on the 17th January, 1829, was not passed, as intimated, on the 8th of February preceding, and furnishes no excuse for the delay, and the controversy among the creditors was no impediment to it, as the administrator'might have retained the disputed dividend, or a portion of it, under the direction of the Orphans Court. The decision of the Orphans Court of Anne Arundel county in this case is reversed; and we direct the proceedings to be returned to that tribunal, that on the principles herein set forth, justice may be done to the parties. DECREE REVERSED.