Sprott v. Baldwin

Fisher, J., delivered the opinion of the court. This is an appeal from a decree of the Probate Court of Claiborne county. The appellee, being administrator, with the will annexed, of Charles W. Wilson, deceased, was ordered, by the court, to execute a new bond, in a sum equal to the value of the assets of the estate, and, failing to comply with this order, his letters of administration were revoked; the court, however, retaining jurisdiction over the [329] administrator, for the purpose of compelling him to make a settlement of his accounts. It appeared, upon this settlement, that a portion of the estate had been fully administered; and, upon this portion, the court allowed the administrator full commissions. It also appeared that the larger portion of the estate was not fully administered; but the court, notwithstanding, allowed the administrator commissions, at the rate of five per cent., on this portion; and this is the error complained of by the appellant. The Act of 1822 (Hutch. Code, 672) declares that the court shall allow to an administrator, on final settlement of his account, such compensation as shall appear reasonable and just for his trouble in administering the estate, not exceeding ten per cent, on the appraised value, &c. 'The Act of 1824 fixes the compensation which shall be allowed on final settlement of the estate. The Act of 1844 merely relates to the rate of compensation to be allowed, and must be construed with reference to the former laws on the same subject. The three statutes, taken as a whole, clearly mean that compensation can only be allowed to an administrator upon a final settlement of the estate. The compensation is given for a full and complete administration, and not for a partial one. The fact that the administration is complete, must be adjudicated, before the compensation can be allowed to the administrator, as any other rule might either subject the estate to the payment of exorbitant commissions, or leave it in a condition not to be fully administered, on account of inadequate compensation. The statute is entirely silent as to what compensation, if any, shall be allowed to an administrator, who has been forced, as in this case, to surrender his trust. Admitting that valuable services have been rendered by the administrator, he cannot be placed in a better situation by the order of the court compelling him to surrender his letters, than he would be in if he had continued in the administration till a final settlement of the estate; and if he had so continued, no compensation could have been allowed him until such final settlement. What, then, must be the rule in this case ? Most clearly, that the administrator can be allowed nothing on that portion of the estate which must go into the hands of the administrator de bonis non, until the final settlement by such administrator. The [330] court, then, in making the allowance, may declare the amount of compensation which each shall receive, the whole not exceeding the limit prescribed by the statute. This' is the only safe rule which can be laid down on the subject, and while it will protect estates, against unjust commissions to be paid for the administration, it will at the same time secure to those performing the services at different stages of the administration, the compensation, which the court, in the exercise of a sound discretion, may allow under the statute. Nor can it, with propriety, be pretended that this rule in the least conflicts with the decision of this court in the case of Cherry v. Jarratt, 25 Miss. R. 221. In that case the executor had, under the provision of the Statute of 1826, resigned his letters testamentary, and the decision was based alone upon that statute. There is one other point which may become important, if not now directly presented by the record. The testator by his will directs his estate to be kept together until his youngest child shall arrive at full age or marry; and it is, therefore, contended that no final settlement of the estate can take place until that time. We disagree with counsel on this point. The estate will be ready for final settlement as soon as the debts are paid, and the legatees can enjoy the entire income or benefit of the property. This provision of the will prescribes duties which can be more properly performed by a ■guardian or trustee, than by an administrator with the will annexed. Decree reversed, and cause remanded.