Merrill v. Moore's Heirs , 8 Miss. 271 ( 1843 )

Mr. Justice Clayton

stated the case and delivered the opinion of the court.

Two questions'are presented for our determination: 1. What shall be the measure of compensation to an executor or adminis- ' trator? 2. And when shall that compensation be received? '

The decision must rest upon a fair construction of our statutes. One of the first duties of an executor or administrator is, to make an inventory of the goods chattels and credits of the deceased. Appraisers are to be appointed by the court at the time the letters are granted, whose duty it is to appraise the goods, chattels, and personal estate of the deceased; their return of this, together with the return of the administrator usually contained in one instrument, constitutes the inventory and appraisement. In addition to this, the administrator should return an account of the money on hand, and a list of the debts due to the estate; these form the credits, which are not required to be appraised, for very obvious reasons. After the return of the first inventory, if other assets come to his hands, it is his duty to make return of them. If it be requisite to sell the real estate, the probate court may grant him leave to do so, and he must report the amount and terms of sale to the court. In this last instance no appraisement is directed— the sale itself is the appraisement. This is a summary of the duties of the administrator, and it will be seen that much of his duty, and often the most intricate and laborious part, relates to portions of the estate which are not required to be appraised.

The two sections which relate to the compensation of the executor or administrator, are the 96th and 101st of the law in regard to the estates of decedents. How. & Hutch. 414, 415. The former is in these words: “In all cases the court shall allow to an executor, or administrator, or collector, on the final settlement of his or her account, such compensation as shall appear to said court reasonable and just, for his or her trouble in administering the estate of the testator or intestate, not less than five nor exceeding ten per cent, on the amount of the appraised value of such estate.” The other section is almost in the same language, but it directs the allowance to be not less than one nor more than ten per cent, on the appraised value.

Does this language 'so limit the allowance to the administrator that it can be made only on that part of the estate which is appraised? Other portions of the estate which are not required to be appraised, but which must be administered, are equally within the reason, spirit and intention of the law.

A case now in this court forcibly exemplifies the injustice of confining the compensation to a commission upon the appraised value of the estate. The estate has been in the hands of the administrator for many years; its appraised value, beside some fifteen or eighteen slaves, was less than five hundred dollars; the amount of assets, éxhibited on the final settlement, exceeds one hundred and fifty thousand. This increase does not result from a defective inventory in the first instance, but from a gradual increase- of the property under careful management. To give the administrator ten per cent, on the original appraised value of this estate, as his compensation, would look like a mockery of justice.- It is wrong to impose onerous duties upon then, and to deny them compensation for their discharge. Such a rule would tend strongly to make them negligent in the performance of the trust, or to make, them seek indemnity in some other way. ‘ We believe that - the words, “appraised value,” Were intended to cover the whole estate administered, and were thought to do so at the time.

We think, therefore, that the allowance in this case should be made to extend to the whole estate administered, as evidence by the several inventories and accounts rendered by the administrator from time to time, in which he has charged himself with the amounts which have come to his hands. It should not be confined to that portion of the estate which has been appraised, and the administrator forced to a gratuitous administration of the balance.

This allowance, however, can only be made upon the final settlement of the estate, and should stand as a credit to the administrator as of that date.

The same principle-and rule are applicable to the administration of Merrill upon the other estate of James Moore, which is incidentally connected with that of Robert Moore. The same decision is made in reference to it. These seem to be the only points on which the opinion of this court is sought. ,

The decree of the probate court will be reversed, and the cause remanded, with directions to that court to allow the administrator as compensation such commission, not less than one n.or more than ten per cent., as shall seem to said court reasonable and just, upon the whole amount of assets administered, not merely the appraised value; but the allowance to be made as of the date of the final settlement.

Judgment reversed.