Wilson v. Wilson ( 1830 )

Buchanan, C. J.,

delivered the opinion of the court.

We do not think either of the points raised in this case can be sustained.

The 14th sect, of the act of 1798, ch. 101, sub-ch. 3, authorises the issuing letters ad colligendum, by the Orphans Courts of the several counties in the cases specified, and the 18th section authorises an allowance to a collector for his whole trouble, of a commission on the amount of the property and debts actually collected and delivered to an executor or administrator, at the discretion of the court, not exceeding three per cent. And the 2nd section of the 10th sub-ch. authorises the allowance to an executor or administrator of a commission at the discretion of the court, not under five nor more than ten per cent., on the amount of the inventory or inventories, excluding what is lost or has perished.

Here then were letters ad colligendum granted by the Baltimore county Orphans Court, and a commission of three per cent, allowed to the collectors, and letters of administration afterwards granted, and a commission allowed to the administrators of 7| per cent, on the amount received by them from the collectors and accounted for, amounting the two commissions together to 10J per cent, which it is supposed exceeded the commissions that the Orphans Court was authorised to allow, by one half per cent.; on the ground that the whole amount of commissions to be allowed, cannot exceed 10 per cent.

But it is perfectly clear that the allowance to be made of a commission to a collector, and that to an executor or administrator, are distinct and independent allowances.

The allowance to a collector is for his trouble, &c. which has nothing to do with the trouble or duties of executor or administrator; and the allowance to an executor or administrator is for his trouble and responsibility, for which no allowance made to a collector, can be any remuneration.

It is therefore no objection, that the commission allowed in this case to the collectors, and that allowed to the administrator, amount together, to more than 10 per cent. The restriction is, that a collector shall not bo allowed more than three, nor an executor or administrator more than 10 per cent.

But it is contended, that the commission of 7\ per cent, to the administrator, is a greater allowance than ought to have been made.

The law has fixed a minimum of five, and a maximum rate of commission of ten per cent, to be allowed to executors and administrators, with a discretion vested in the Orphans Court restricted only by those limits, and the court in allowing a commission of per cent, having acted within the scope of that discretion, we do not think we have any power to disturb the decision, or to review what has been done in that respect. The various circumstances determining the amount of the commission proper to be allowed, cannot appear to this court, and every case must he governed by its own peculiar circumstances, subject only to the restrictions already mentioned. But if the allowance of commission within the prescribed limits was a fit subject of appeal, there is nothing in the testimony accompanying the record, showing the allowance made to the administrators to be too great.

The claim to interest on the amount retained by the administrators cannot be maintained; the money was retained with the consent of all the parties concerned, under the sanction of the Orphans Court, to meet the contingency of a suit with the collectors, which appeared to be a matter not unlikely to happen before the accounts should be finally closed. The decree is affirmed with costs.

decree affirmed.