Potter v. . Stone , 9 N.C. 30 ( 1822 )

Trustees were entitled to no allowance at common law for their care and trouble, but are merely indemnified for their actual expenses. The Legislature has though fit to alter this rule and to make an allowance according to the actual care and attention bestowed in each particular case. A large estate, being unincumbered, may in fact require but a small portion of the attention of the administrator, and merit, therefore, a small commission; whereas a less estate, if much involved, and having many claims to liquidate, may call upon the court to go to the full extent of the law. As the maximum is fixed at 5 percent, it is a plain declaration of the Legislature that, however great the degree of trouble may be with which the administration is attended, that shall be deemed an adequate compensation. But neither the law nor the reason and justice of the thing lends any countenance to the idea that such offices shall be considered as sources of profit to the incumbent, or desirable on that account. On the contrary, considering whose interests are most frequently concerned, that of widows, minors, and creditors, every consideration of policy and right strongly impels the Court to avoid any construction of the law which may lead to such a consequence. A bare compensation, and nothing more, is all they feel authorized to allow. The most troublesome part in the management of this estate was probably that which the administrator was not obliged to (32) undertake, that of the sawmills, which probably belonged to the guardian of the children. For the labor thus bestowed, the administrator is undoubtedly entitled to compensation from those who have been benefited by his attention, but not as administrator; nor has the Court any power to take it into consideration on this motion.

To ascertain the degree of trouble which has been bestowed in the administration, properly so called, the Court has considered the duration of the trust and the sums received and paid away in a course of administration, and as the estate, though nominally large, was in fact unembarrassed with law suits or debts, and the latter for the most part of east liquidation, the Court, upon a full view and due consideration of all the circumstances, thinks that 2 1/2 per cent upon the receipts and 3 per cent on the expenditures will be a just compensation for the trouble of the administrator, so far as the law permits the Court to act in relation to the subject. For the sake of future cases, we think it right to add that payments made to distributees on account of their portions, whether before the administration is settled or at the close of it, cannot be considered as expenditures, and therefore no allowance of commissions is made on them.

The decision of the Court is that the orders of the county and Superior courts are set aside, and an allowance be made to the administrator upon the foregoing principles of $809.19. The rate of commission, in this case, is formed upon an average of the general payments and receipts; upon some receipts, singly considered, a half per cent would be a full allowance, and upon others we could with propriety go to the maximum. The case cannot therefore furnish a rule for any particular charge that may be selected.

PER CURIAM. Modified.

Cited: Ex parte Haughton, 14 N.C. 442; Clarke v. Cotton, 17 N.C. 55;Peyton v. Smith, 22 N.C. 349; Bank v. Bank, 126 N.C. 540.

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