In re the Estate of Baxley

Bartol, C. J., delivered the opinion of the Court. On the 17th day of March 1876 the appellant was appointed “administrator pendente lite” of the estate of H. W. Baxley, deceased, pending the controversy on the caveat to the will of the deceased. He proceeded in the administration, passed two accounts, and on the 24th day of May 1877, the caveat being ended and the will admitted to probate, letters testamentary were granted to him. On the 18th day of June he filed his petition, stating that he was about to close his accounts as administrator pendente lite and to take possession of the estate as executor of the will, and praying that he be allowed a commission of not less than five per cent., for his services as administrator pendente lite. The Orphans’ Court refused this application and ordered that in the account of his administration pendente lite a [559] commission of tivo and a half per cent, be allowed. From this order Mr. Williams has appealed. The appellant contends that the case is governed by the 5th section, Art. 93 of the Code, which provides that the commissions of an administrator shall be, at the discretion of the Orphans’ Court, not under five per cent., nor exceeding ten per cent. In our opinion this limitation upon the power of the Court, restricting them to the minimum rate of five per cent., must be construed to apply, “where the administration is full and complete.” The Act of 1798, ch. 101, sub-ch. 10, sec. 2, from which this provision of the Code is taken, was so construed in McPherson’s Adm’rs vs. Israel, 5 G. & J., 60. By Art. 93, sec. 65, of the Code, the Orphans’ Court may allow to an administrator ad colligendum, a commission on the property and debts actually collected, and afterwards delivered to the executor or administrator, not exceeding three per cent., or on the whole inventory not exceeding two per cent. Sec. 74 of the same Article provides for a case where an administrator has died before completing the administration, and directs that the administrator of such deceased administrator, who shall comply with the provisions of secs. 72 and 73, shall be entitled to retain such commission as the Orphans’ Court shall in its discretion allow, not exceeding ten per cent. This section does not fix a minimum rate of commissions in such cases, but leaves it to the discretion of the Orphans’ Court to allow any rate not exceeding ten per cent. And in McPherson vs. Israel, before cited, this Court held that the Orphans’ Court “have the power, in the 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.” We quote the language of the Court, which is general, but of [560] course must be applied to the particular case then under consideration, which was the case of an administration de bonis non, the first administrator having died, and which was provided for by the Act of 1798, ch. 101, sub-ch. 10, sec. 2, and by the Act of 1820, ch. 174, sec. 6. This last Act is found substantially in the Code, Art. 93, secs. 72, 73 and 74. It is true, as stated by the appellant, that the only sections of the Code expressly providing for commissions, in cases of partial or incomplete administrations are secs. 65 and 74. The former relating to collectors, and the latter to cases whese the first administrator has died, and an administrator de bonis non is necessary to complete the administration. There is no section which expressly provides for or fixes the rate of commissions to be paid to an administrator pendente lite; hence the appellant argues, that unless he comes within the fifth section, the Orphans’ Court is without power or authority to allow him any commissions whatever for his services as administrator pendente lite. But we do not concur in this view. While it is well settled, and the Code so expressly provides, “that the Orphans’ Courts shall not exercise any jurisdiction not expressly conferred by law;” yet to those Courts is confided the jurisdiction to supervise the administration of estates, and the authority to allow commissions to executors and administrators. In some cases their powers in this respect are limited and defined by the Code, where the maximum and minimum of such allowance are prescribed, in other cases they are not so restricted; but the rate of allowance is confided to their discretion, only the maximum of ten per cent., being fixed by the law, leaving to them to determine the allowance to be made below that rate. These last are cases falling within the 65th and 74th sections. [561] (Decided March 1st, 1878.) It is clear in our judgment that the 5th section applies only to cases of a full and complete administration. It would be most unreasonable to apply that section to all cases of a mere partial administration by an administrator pendente lite; who in many cases might make but little progress in the settlement of the estate, before the controversy is ended and the office of administration devolves upon his successor. Although the case is not expressly provided for in the Code, it is no excess of jurisdiction on the part of the Orphans’ Court to apply, by analogy, the rule prescribed in other cases of partial or incomplete administration, and to award to the administrator pendente lite, such rate of commissions, less than ten per cent., as in their judgment and discretion shall be a fair and reasonable compensation for the services rendered. In the exercise of this discretion, where it is within the jurisdiction of the Orphans’ Court, its action cannot be controlled or reviewed by this Court. Being of opinion, for the reasons stated, that the Orphans” Court had the jurisdiction and power to award to the' appellant a less rate of commission than five per cent.,, their order will be affirmed. Order affirmed.