Opinion
(Spring Term, 1800.)
1. Under the Act of 1784 (see 1 Rev. Stat., ch. 64, sec. 1), a widow of an intestate dying without children is entitled to only one-third part of his personal estate.
2. The Court of Equity allowed commissions at the rate of five per cent only, though the county court had allowed at the rate of ten per cent on the whole amount of the estate.
This was a case in equity from the District of New Bern. The bill states that the complainants are the brothers and sisters of Alexander McAuslan, late of New Bern, dec., who died intestate, possessed of a large personal estate, without issue, leaving Sidney McAuslan, since married to Furnifold Green, one of the defendants, his widow. The bill charges that by Act of the General Assembly, made for settling intestates' estates, the estate of their deceased brother ought to be divided into three equal parts, one of which should be allotted to the said widow, and the remaining two-thirds equally divided among the complainants, who are the next of kin to Alexander McAuslan, deceased. The bill then states that Sidney McAuslan, widow of the deceased, and John Green, of New Bern, administered on the estate of Alexander McAuslan, and that the widow afterwards intermarried with Furnifold Green, and that the whole estate of the deceased has come to the hands of the said administrator.
The answer of Furnifold Green and Sidney, his wife, admits the death of the intestate, Alexander McAuslan, and that she with John Green, one of the defendants, administered on the estate and that the personal estate of the said Alexander McAuslan to a large amount, after paying debts, etc., has come to their hands, but insists that she is entitled to one-half of the clear surplus of the said estate.
The answer of John Green, the other defendant, also admits the death of Alexander McAuslan, intestate, and that he with Sidney McAuslan, his widow, since married to Furnifold Green, obtained administration on his estate, that he has sold the personal estate to a large amount, and has paid to Sidney, wife of Furnifold Green, and to him in (261) right of his wife since their marriage, nearly one-half of the clear surplus of said estate, upon the supposition and belief that she was entitled to one-half, there being no issue. His answer then insists that he is entitled to retain a commission of ten per centum on the whole amount of said estate, which was the allowance made him by the county court of Craven on the settlement of his accounts. It is admitted by the other defendants that he alone has had the care and management of the estate.
Two questions were referred to the Judges for their decision in this case:
1. To what share of the personal estate of Alexander McAuslan who died intestate, without issue, is his widow entitled?
2. Ought any commissions to be allowed the administrator for his care and trouble; if any ought to be allowed, at what rate per centum?
The widow has a claim to no more than one-third of the intestate's estate, and a commission of five per centum is fully adequate to the services of the administrator, such as they appear to me.
I am of opinion that the widow of the intestate is entitled to one-third part of the personal estate, and to no more. Acts of 1784, sec. 8, and chap. 22; and that commissions ought to be allowed at the rate of five per centum.
Decree accordingly.
NOTE. — On the allowance of commissions to executors and administrators, see Hodges v. Armstrong, 14 N.C. 253, and Walton v. Avery, 22 N.C. 405.
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