Cherry v. Jarratt

Mr. Justice FisheR delivered the opinion of the court. The appellee, as one of the executors of the last will and testament of Robert Cherry, deceased, filed his petition at the April term, 1852, of said court, praying that he might be permitted to surrender his letters testamentary, and for a settlement of his account, so far as the administration had extended. At the following August term of the court, the prayer of the petition was granted, and the court allowed the appellee two per cent, commissions upon the appraised value of the estate, besides the same rate of commissions upon the estate received and administered by the executor, after the inventory had been returned. The question presented for our decision is, that the executor, resigning his trust before a final settlement of the estate, was only entitled to commissions upon so much of the same as he [226] had fully administered; and not having fully administered the estate in the inventory, he was not entitled to commissions thereon. The law on this subject will be found in Hutch. Code, 674, and it says, that the court may make such allowance to the party resigning his letters, as it may deem right and proper, according to the statute in such case made and provided. The statute here referred to, is the act of 1824, authorizing the court, upon final settlement, to allow commissions to the executor or administrator upon the appraised value of the estate. Ib. 673, 674. The rule has been settled by this court, that the probate court may allow commissions upon the whole estate administered. Under these statutes and' the rule, as settled in this court, it was competent for the probate court to allow commissions to the appellee upon the whole estate. The legislature has conferred upon the probate courts a discretion as to the compensation to be allowed executors and administrators, to be exercised within certain prescribed limits, for the purpose of protecting the estate against unjust or illegal charges, on the one hand, and of doing full justice, according to the facts and circumstances of each particular case, to the executor or administrator, on the other hand. Discretion was moreover given to the court, because it was not possible for the legislature on this subject to prescribe a rule of action, adapted to every case that might arise in practice. But it must not be understood, that because the court is clothed with a discretion as to a certain matter, it is at liberty to exercise it arbitrarily, .regardless of the testimony before it, or that it may render a judgment without sufficient testimony. The power must be exercised according to reason, justice, and sound policy. It is the duty of the probate court to watch apd guard the rights of those interested in the estate. It is also equally its duty to make an allowance to an executor or administrator, corresponding with his trouble, services, and responsibilities in administering the estate; not, however, exceeding in any case the maximum rate prescribed by the statute. But the party claiming such allowance, must place the court in possession of those facts which will enable it to exercise its discretion rationally; and the question therefore arises, how this may be done in a [227] case like the present, where the executor resigns his trust before the estate has been fully administered. The act of 1826 says, that the court may make such allowance as it may deem right and proper, according to the provisions of the act of 1824, which says, that no allowance shall be made to an executor or administrator but upon final settlement of the estate. In the present case, the court was called upon to allow the executor compensation for only a partial administration of the estate. He could only claim for a partial administration, a fair proportion of the sum to which he would have been entitled for a complete administration. The court had, therefore, to determine what proportion the part bore to the whole. Before it could do this, it had to determine what the compensation for a full administration ought to be, as it could not know what proportion a part bore to the whole, till the whole itself was ascertained. This result could only be arrived at, 'by ascertaining how far the administration had progressed, and what acts and services would be necessary to complete it. When this state of case is presented, the court can afford the estate all necessary protection, and at the same time do full justice to the party surrendering his letters. If, however, from any cause, the party is unable to present his case in this light to the court, he ought to be satisfied with such allowance as the court, having a due regard to the interests of the estate, would be authorized in making on an uncertain or unsatisfactory showing. The allowance in such case should never be liberal, as it might prove either detrimental to the estate, or unjust to the successor in the administration. Another question which may be noticed as important in this class of cases, is, that the law will not allow an executor or administrator to do any act prejudicial to the estate. When he renounces the trust before fully administering it, he does so to promote his own interest. Additional costs, both for the resignation and the appointment of another administrator, have to be incurred. These should in every instance be imposed upon the party surrendering his letters. It is now proper to state that those several rules have but little bearing upon the ease under consideration. They have [228] been stated merely in response to the wishes of counsel on this subject. As to the present case, it will be sufficient for us to remark, that we find in the record no flagrant abuse of that discretion vested in the probate court by the statute; and it is only in such a case, that this court would reverse the judgment of the court below. One other question made by counsel for the appellant is, that the court erred in permitting the appellee to testify in his own case, as to the trouble he had been at in managing the property embraced in the inventory. To this it is only necessary to state, that the law required the executor to preserve and manage in the best manner the said property. To do this certain services were necessary; and his statements amount to no more than such presumptions as the law raises in his favor, supposing that he had discharged his duty. The evidence was, therefore, immaterial. Decree affirmed.