Harris v. Martin , 9 Ala. 895 ( 1846 )

GOLDTHWAITE, J.

1. In the brief submitted since the argument, it is conceded this case, so far as the issue is connected with it, cannot be distinguished from other cases recently decided. We are clear in that* opinion; it is the insolvency of the estate which the creditors are allowed to contest with the administrator, in the first instance, and when that is ascertained or adjudged, the administrator or any creditor may contest the claim of any other creditor, whose claim is filed in the manner required by the act. [Dig. 192, § 4; 194, § 11.[

It is quite evident the demand of the administrator for compensation for settling the estate, is trot a claim against the estate, in the sense of either of the sections referred to. That is a matter to be ascertained and decreed by the court, exercising its general and ordinary functions. As the issue sent to the jury was irregular, as settled in several cases at January term, 1846, this writ of error must be dismissed on the authority of that decision.

2. As the question of compensation has been so fully argued, and as it must arise again when the matter is properly before the court below, it will not be improper now to ascertain what are the general principles by which allowances of this nature are to be governed.

It is unnecessary, in this instance, to go into an extended examination of cases, either English or American on this subject, as they are chiefly collated in the treatises upon trusts; it is perhaps sufficient to say, that in the English courts such allowances are discountenanced on the supposition that the acceptance of a trust is voluntary, and that allowances for services might induce the trustee to lessen the estate by pretended charges, which, under a more cautious administration might be wholly avoided. In the American courts generally, a different rule obtains, and allowances are not refused, although they are scrutinized with jealous watchfulness. [Bethea v. McCall, 5 Ala. Rep. 308; Rathbon v. Colter, 15 Pick. 471; Longley v. Hall, 11 Ib. 120; 2 Lomax on Ex. 327; Wend. v. Lee, 5 Mon. 50.] The same scrutiny is exercised over the allowances made to trustees in the English courts, whenever the general rule is departed from, and compensation is given for loss of time and trouble. [Lewin on Trusts, 441.] With us it is the usual and" common practice to allow executors, administrators and guardians, a per centage upon the amount of the receipts and disbursements as a compensation for the performance of the trust. This per centage has never been fixed by statute, and unfit' some specific rule is declared upon the subject, it is evident each case must be governed by its peculiar circumstances. It is apparent, however, the quantum of trouble, and loss of time, is not the only matter to be considered, as the settlement of an estate of $500, may involve as much difficulty as one of $50,000. The compensation must also, to a great extent be controlled by the amount of the estate. It is evident enough, from a consideration of all the cases, that the courts do not proceed, when making, the allowance to a trustee, upon the principle of specific compensation for services rendered, or to be rendered. The usual course of the Court of Chancery, is to refer it to a Master to settle the allowance. [Marshall v. Halloway, 2 Swanston’s Rep. 432; Brown v. Letton, 1 P. Williams Reports, 140.] These are the general principles applicable to allowances, and we can perceive no reason why one who is not a mere voluntary trustee, appointed by will or deed, and is also an attorney, shall not be allowed a reasonable compensation for his services in the latter capacity, when such have been necessarily and bona fide rendered for the benefit, or called into use by the necessities of the estate. But we do not think the amount of compensation is to be ascertained by inquiring what such services would usually be rated at. In the inquiry, it would be more proper for the court to ascertain what a prudent individual, invested with the functions of administrator, would feel authorized to pay an attorney, taking into consideration all the circumstances of the estate. These rules will probably suffice for the correct determination of this cause, when .it shall be again presented to the County Judge,

Writ of error dismissed.