Opinion
June Term, 1837.
1. Where a testator leaves the same person executor of his will and guardian of his children, he is chargeable with simple interest only for the time he was acting as executor; but from the time when the administration of the estate was or might have been concluded, he is to be charged with compound interest, unless he can show special equitable circumstances to discharge him of such accountability.
2. Where one or two joint executors and testamentary guardians settled with his ward, and was allowed commissions, that allowance is no criterion for estimating the commissions to the other. The compensation to the latter must depend on the time he employed, the labor he performed, the services he rendered, and the responsibility he encountered in the performance of his duties.
THIS cause was heard on exceptions to the commissioner's report. By a former order the commissioner was directed to take an account of the receipts and disbursements of the defendant John D. Hawkins as one of the executors of James Boyd, deceased, and testamentary guardian of his children, and to report the nature of the services rendered by said defendant, and what amount of commissions should be allowed him therefor. The report of the commissioner set forth an account of the receipts and disbursements, in which the said defendant was charged with the sum of $902, and credited by the sum of $291.89 for interest. The report also found he was entitled to a commission of 21/2 per cent on $37,179, being the amount of receipts and disbursements of James Boyd's estate as audited and returned to the August Term, 1816, of Granville County Court; also upon $3,263.03, amount of money paid Thomas Brown, a creditor of the estate; also upon the sum of $680.32 recovered from Thomas Boyd, and on the sum of $400 recovered (565) from Spain's heirs, amounting to $1,038.19. To this report the plaintiffs excepted — first, for that in the account of receipts and disbursements the commissioner ought to have charged compound and not simple interest on the balance in his hands; and, secondly, for that the defendant was not entitled to any commissions on the sums whereupon the commissioner allowed him commissions, because a full commission of five per cent had already been received by his coexecutor and joint guardian, and also for that the commissions so allowed by the commissioner were unreasonable and excessive.
Devereux for plaintiff.
Badger and W. H. Haywood for defendant.
Upon the pleadings and proofs it appeared that the testator appointed Richard Bullock and John D. Hawkins joint executors of his will, and guardians to his two infant children, and that upon the death of one of them under age the whole beneficial interest in the testator's estate, according to the limitations of his will, accrued to the survivor, the present plaintiff. Both these gentlemen qualified and joined in returning the inventory, and both of them acted, more or less, in the management of the trusts confided to them. Shortly after the marriage of the plaintiff with William S. Hodge (who died after the institution of this suit), a settlement was made between the plaintiff's husband and Bullock, who had been the principal acting executor, and had the great bulk of the estate in his hands, to which settlement the defendant Hawkins was not a party when Bullock made a statement of his accounts as executor and guardian (containing the items, the commissions on which were excepted to), and charging therein a commission of five per centum on all his receipts and disbursements, amounting to the sum of $4,703.88. It appeared that a proposition was then made to the said Hodge, which he accepted, to deliver over to him the whole estate, including the bonds and other effects in the hands of Bullock, and pass receipts. The present bill was afterwards instituted to call the defendant Hawkins to account because of his receipts on account of the estate which were not included in the settlement with Bullock, and in the adjustment of these matters the order for ascertaining the commissions, now the subject of dispute, was made. (566)
With respect to the matter of the first exception, the Court understands the law to be that, as executor, the defendant is chargeable with simple interest only, but that as guardian he is accountable for the annual interest on the balance of principal and interest in his hands, unless he can show special equitable circumstances to acquit him for such accountability. Branch v. Arrington, 2 Car. Law Repos., 252. In this case it does not appear what portion of the moneys charged was held by the defendant as executor, and what as guardian. This part of the report, therefore, must be recommitted to the commissioner, with instructions to make this discrimination, and to regard all balances due from the defendant because of receipts as executor to be held by him as guardian from the time when the administration of the estate as executor was or might reasonably have been concluded.
With respect to the matter of the second exception, it appears to the Court that the commissioner has proceeded upon an erroneous principle, and hath not so found the matters as to enable the Court to decide thereon. After setting forth the mutual allegations of the parties, the report finds that it appears "that in the settlement made by Richard Bullock with the plaintiff he had charged five per cent commissions on the whole amount of receipts and disbursements, which sum ought to be a sufficient charge for settling the whole estate; but if the plaintiff was willing to make that compensation to one of the executors, the master, notwithstanding, is of the opinion, under all the circumstances of the case, that the defendant ought to have a commission of 2 1/2 per cent on such part of the estate as he had a joint agency in settling." If the master had concluded that the allowance of five per centum by the plaintiff to the defendant's coexecutor, although quite enough to satisfy the claims of both, ought not, under the circumstances (567) of the ex-parte settlement, to preclude the defendant from receiving a fair remuneration for his time, trouble, risk, and services, such conclusion would have received our sanction. But we understand him as taking this rate of commission as that settled to be the fair amount of compensation, and giving one-half of the commissions allowed on all property which had been under the agency of the joint executors. Now, we hold it to be clear that the settlement in question was one solely between the plaintiff and Mr. Bullock; and whether there was any commission allowed to this gentleman, and, if so, what was the amount thereof, is a matter wholly immaterial between the parties now litigant. We hold that the commission found by the master to have been allowed is no criterion for estimating the value of the entire services rendered by both executors, and that the circumstances of Mr. Hawkins having a joint agency in the matters which were the subject-matter of that settlement does not, therefore, give him a right to one-half of the value of the entire services.
This part of the report must also be recommitted. The master, in revising it, will direct his attention to the inquiry, what is the reasonable amount of compensation for the time he, the defendant, employed; the labor he performed, the services be rendered, and the responsibility he encountered in the performance of his duties? And report such a commission, not exceeding five per cent, as will amount to this compensation. It cannot be expected, and ought not to be demanded, of the defendant to make proof in detail as of items in an account; but the commissioner can satisfy himself by general evidence of the commission proper on an entire settlement of such an estate, and of the proportion of this sum which the exertions of the defendant Hawkins entitle him to.
PER CURIAM. Direct accordingly.
(568)