Opinion
(December Term, 1859.)
1. Where a testator gave to his wife the share she would take in a case of intestacy, and gave the residue to his children, and directed that his whole estate should be subject to the support of his family and education of his children, and provided that the education of his children should become of age or marry, the executor should allot a share to each, it was Held to be the intention of the testator that the whole estate should go into the hands of his wife for the support of his wife and children, and that the executor's sole duty was to make the allotment as the children might arrive at age or marry.
2. Where a testator directed that his widow and children should remain together as a family, she keeping the whole estate for the support of the family and education of the children, with directions that each child should have a share on arriving at age or marrying, and the arrangement was defeated by the necessity of selling the homestead for the payment of debts, it was Held that the share of the children became immediately payable to their guardians.
3. One per cent was held to be a sufficient commission to an executor on money received by him from a clerk and master arising on the sale of land.
4. Where the money of an estate was collected and paid out mostly in large sums without must litigation, it was Held, that 3 per cent on the receipts and disbursements was a sufficient compensation to an executor.
(281) CAUSE removed from the Court of Equity of CASWELL.
Bailey and Norwood for plaintiffs.
Kerr for defendant.
The bill was filed by the widow and children of James L. Graves against the defendant, his executor, for an account and payment of the legacies given by the will. Mr. Donoho was appointed a commissioner to audit the account, who made two reports — the first stating a balance in the hands of the executor, and stating, also, that a suit was pending against the estate in the court of equity of Caswell County, and that a final report could not be made until that suit was determined. Subsequently he reported, as the result of that suit, a decree for $3,655 against the estate in the hands of the defendant, which the commissioner allows in the account as a credit to the defendant. The plaintiffs except to the commissions allowed by the commissioner to the defendant. It appears that 4 1/2 per cent had been fixed as the rate to be allowed by an order of the county court, and the commissioner adopts that allowance. The whole amount of receipts was about $18,000; of this $6,858 was money paid over to him by the clerk and master in equity on the sale of land and $450 on the sale of slaves. The greater part of the sums received were paid out by the executor, most of it in a few large debts. The plaintiffs except to the rate as being too high, and especially that allowed on the money received from the master in equity. To the second report they except on the ground that the commissioner has credited the defendant with the recovery in the court of equity without it being alleged or proved that the executor has paid the amount.
The answer of the defendant sets forth as a reason why he should not pay the share of the children the following provisions of the (282) testator's will :
"Item. I give and devise to my wife, Frances A. Graves, such portion of my estate, real and personal, as she would be entitled to in case of my intestacy.
"Item. I give and devise the residue of my estate and property of every sort to my children. . . .
"Item. My will is that my whole estate shall be subject to the support and maintenance of my wife and children and the education of my children during the widowhood of my wife, unless, in the meantime, my children shall arrive at age or marry, in either of which events I direct a division shall be made and the portion of such child as may arrive at age or marry shall be allotted to such child by my executor.
"Item. I will and direct that my children shall be educated under the direction of their mother."
It was insisted in the answer that it was the intention of the testator that the executor should retain the possession of the property, rent out the land, hire out the slaves from year to year for the benefit of the children, and on their arrival at age or marrying, allot to each a share. The cause was set for hearing upon the bill, answer, and upon the exceptions to the report and sent to this Court.
There is nothing in the will to justify the construction that the executor was to retain possession of the property and rent the land, hire out the negroes from year to year for the benefit of the children, so as to answer the purpose of or be a substitute for a testamentary guardian. He has a mere power to allot to the children as they respectively arrive at age or marry, the portion to which they may be entitled.
The testator gives his wife such portion of the real and personal estate as she would have been entitled to in case of his intestacy; but it is clear from the whole scope of the will that he did not (283) expect her to have it separated from the rest of his estate, except in the event of her marrying again, and his intention and wish was that the whole estate should go into the hands of his wife, to be managed by her for the support and maintenance of herself and children and for their education, which is to be under the direction of "their mother," with whom he expected they would make their home until they respectively married or arrived at age, in which event the executor was to see that a proper share was allotted to each.
Subsequent events, however, made it impossible to carry this wish of the testator into effect. The debts turned out to be more than he expected, so as to make it expedient to sell the land. The wife had her share of the proceeds of the sale in lieu of her dower, and it appears by the answer she has had her portion of the slaves allotted to her; and as "the whole estate" cannot now be kept together as a home for herself and the children, the residue of the estate to which they are entitled must be paid over to the guardian who may be appointed for them and be subject to his possession and management, and not that of the executor, because no such power is conferred on him.
The exceptions to the first report, on the ground that the commissions allowed are excessive, are sustained. Upon the amount of $6,858, cash paid to him by the clerk and master as the proceeds of the sale of land made by the clerk and master, who, we are to presume, was allowed for selling, taking notes, making title, and collecting, and the amount of $450 cash paid in the same way as proceeds of an interest in salves sold by the clerk and master, 4 1/2 per cent is certainly too high. We think 1 per cent is enough for merely receiving the money.
There seems to have been very few debts due to the estate, and of the debs due by the testator the larger amount were in two debts — $3,000 to bank at Raleigh, $4,000 to Graves, guardian — and there seems to have been little or no litigation in settling the claims of or against the testator; besides, the bulk of the receipts was for the sale of (284) slaves, and a few items run up a large figure. Upon the whole, we think 3 per cent on the receipts and disbursements a proper allowance and 1 per cent on the amount received from the clerk and master. We have the less reluctance in differing with the commissioner in respect to the commissions allowed, because he informs us that he did not act so much on his own judgment as upon that of the county court, whose estimate he adopted.
The second, or supplemental, report must be set aside on the ground that the judgment recovered against the executor cannot be passed as a voucher until it is paid or so arranged as to discharge the estate of the testator from all further liability.
PER CURIAM. Recommitted.
Cited: Carr v. Askew, 94 N.C. 210.