McPherson's Adm'rs v. Israel

Earle, J., delivered the opinion of the court. The appeal in this case is from the Orphans Court of Baltimore county. The appellants are the administrators of Isaac McPherson, who administered on the estate of Andrew Agnew, deceased: He was in the administration about three years when he passed his first account, and departed this life soon after. Letters of administration de bonis non, with the will annexed, were granted to Fielder Israel, who called the appellants before the court to pass a further account of Isaac McPherson’s administration of Andrew Agnew’s estate, and to deliver to him all the bonds, notes, accounts and evidences of debt, which the deceased administrator may have taken, received or had, as administrator, at the time of his death, and also to pay over, to him all the [63] money in the hands of such deceased administrator as such, at the time of his death. The appellants complied with the requisition in all respects, and asked the court to grant to them, in behalf of their intestate, to be taken into his estate, a commission of at least five per cent, on the amount of assets accounted for by him, comprising the specific property included in the inventory, the debts received by the administrator, &c. Upon this question the court deliberated, and finally refused the petition of the appellants, and granted to them ten per cent, on the money paid away by the administrator, towards the debts of the deceased, and the expenses and disbursements of the administration. They amounted to $9,426 76, and at the per centage allowed, yielded a commission of $942 67; This fell below the product of a commission of five per centum upon the whole estate, and the allowance caused the appeal in this case, the appellants contending that the court had not the power to grant to them in behalf of their intestate, a commission lower than the minimum rate of commission fixed by law. We have given to this appeal its due attention, and there is not a doubt on our mind, that the Orphans Court were in the main right in the judgment they pronounced in this case. Whether Isaac McPherson merited a larger sum for the services he rendered, is not for us to decide. We have not, and cannot have the same view of the subject the Orphans Court had, and we could not say, if it was our province to determine, as accurately as that tribunal, what reward he was entitled to have. Our opinion however is, that they have not exceeded their authority, and that under the circumstances of this administration, they had the power to grant to his administrator a commission less in amount than the sum, th eminimum rate of commission oí five per cent. on the whole estate would produce. This is one of the limitations to the exercise of the discretionory power of the court, prescribed by the act of 1798, ch. 101, sub-ch. 10, sec. S ; but it is manifest from a view of the whole law, the limitation [64] was only intended to apply where the administration was full and complete. This construction, however, of the act of 1798, need not be insisted on, since the act of 1820, ch. 174, sec. 6, puts it beyond a doubt. By this section, the minimum rate of allowance is purposely omitted to be mentioned, and the court have an unquestionable power, in case of a partial administration of a deceased person’s estate, and where there is a further administrator to be paid for services, to allow such compensation as the services performed actually merit. In declaring this opinion, we cannot agree with the Orphans Court in their reasoning upon this subject, nor in the manner they have made the allowance. They have allowed a ten per cent, commission on the money paid by the administrator towards the debts of the deceased, and the expenses of the administration. This was the mode of allowance pursued by the law anterior to the act of 1798, but was thereby abrogated and repealed. The inventory of the deceased’s estate, and in an enlarged construction of this, all the assets accounted for by the administrator, is the true standard by which to ascertain the commission. Where there has been a full administration, as we have said before, the court cannot descend below five per cent, on the whole property, but where the duty of administering the whole estate has been but in part performed, to make just and suitable remuneration for what has been done, they may give, if the circumstances require it, one per cent, and even less if necessary. Whatever is allowed must nevertheless be a per-centage on the whole assets, as this is the only standard known to the law, whereby to ascertain the commission. Supposing the Orphans Court assumed a mistaken standard, for the ascertainment of the commission, and might on consideration be disposed to change the amount granted by them, we reverse their decision, and direct the record to be returned to them. DECREE REVERSED, AND THE PROCEEDINGS REMANDED TO THE ORPHANS COURT.