Bowman v. Bowman's Admr. ( 1871 )

Opinion by

Judge Peters :

Appellants complain that the commission allowed the administrators of 7 per cent, on the amount collected of his intestate is too liberal.

Five per cent, is the usual allowance made to personal representatives as ¿compensation for the amount collected by them, and it is sometimes said that the commission of 5 per cent, will be allowed on actual disbursements, but it may and is often allowed on the amount collected, and it is doubtless competent for the court in settling the accounts of administrators to allow 7 per cent, as compensation, in cases of much trouble and difficulty in making collections where the debts are small and trouble great, and settlements difficult, but to authorize such allowance the existence of the difficulties enumerated, or some of them, should be proved. In this case there is no sufficient evidence exhibited, or reason given for the extraordinary allowance to the administrator. And appellants’ exceptions to that item of the report should be sustained and his allowance reduced to 5 per cent, on the amount disbursed by the administrator. If he acted as commissioner on making the sale of the tracts of land, a reasonable allowance should be made to him in addition for that service.

Wilson & Field, after having presented an account for services as follows: Geo. Bowman’s Admr. to Wilson & Field, Dr. For bringing suit to settle the estate of G. W. Bowman, preparing claims of Bowman’s estate against other estates, and advice to administrator concerning claims against the estate, and advice in reference to the general estate and examination of claims against the estate $200, which was allowed in the report of debts made by the commissioner in April, 1864. On the 11th of June, 1869, it appears that A. H. Field, Esq., filed an additional claim, which is as follows: “To additional services in management of and conducting suit of G. W. Bowman's Administrator v. H.”

This claim was rejected by the master, Field excepted to the report, the exceptions were sustained by the court below and an allowance made to Wm. Wilson of $50 and to A. H. Field $150, in the judgment, and of these two allowances appellants complain.

The first allowance embraced their claim for bringing the suit and prosecuting it to the time when the allowance was made —other services were doubtless rendered by them valuable to the estate — and we are not authorized to conclude contrary to the opinion of the circuit judge, who sustained an exception to the master’s report for rejecting the claims of Field and Wilson that they should not be allowed, the judgment, therefore, allowing these claims is approved.

R. H. Field, A. H. Field, for appellee.

More than three years had elapsed from the payment of the debts of R. H. Field before the administrator made an effort to reclaim the usury included in the notes; And Field has pleaded, and relies on the statute of limitations as a bar, which plea must be available to bar the claim even if it had been satisfactorily made out. Myer’s Supp. 292. The act referred to was approved the 17th of March, 1862, and took effect from its passage. But the judgment so far as Carpenter is allowed 7 per cent, for commissions is reversed and the cause is remanded for further proceedings consistent herewith.

The judgment on the appeal of Bowman’s administrator against R. H. Field is affirmed.