Richardson v. True , 28 Vt. 676 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

The only material question in the case is in relation to the allowance of the account of the administrator. The testator, Stephen Merrill, died leaving a will by which, after giving to his widow all his household furniture absolutely, and a legacy of five hundred dollars to his daughter Louisa, he gave to his widow the use and improvement of all the rest of his real 'and personal éstate during her natural life and all that should remain at her decease he gave to his children and grandchildren. The widow was appointed executrix under the will, but she having refused to act as such, administration was committed to John Richardson, with the will annexed. It appears that in the month of October, 1843, Richardson rendered to the court of probate his administration account, which was allowed to him, and there then was found a balance in his hands of some twenty-four or five hundred dollars in money and notes, some personal property which had not been sold, and a small amount of real estate. This property remained in the hands of John Richardson quite a number of years, and it is for taking charge of this property subsequent to the rendition of his account in 1843, that the charges are made. We see no sufficient reason why the administrator should not have his account allowed him, against the estate. The administrator, with the will annexed, had the property in his hands in trust, and in the character of administrator; and as such was liable, at all times, to be called to an account for it before the probate court. It is a very common chancery principle that the expense of taking care of a trust fund is to be paid out of the fund, and it is often said the trustee has a lien upon it for the payment of his account. So with executors and administrators; they are entitled to have all accounts, allowed them as such, paid out of the funds in their hands; and we see no reason why this case should be made an exception. If those in interest saw fit to permit the property to remain in the care and custody of the administrator, and thereby have the security of his administration bond for a final accounting Tor'the property, lie certainly should be allowed for his administration account in managing the property. If, from the payment of this account out of the common fund, equities arise between those entitled to the fund, they must be adjusted between themselves. The commissioner finds that the sum allowed the administrator by the probate court was reasonable for the time, care and trouble expended by him, and that time enough was expended to have the account amount to the sum allowed by the court of probate, at the rate of compensation fixed by the statute for executors and administrators per day. It has been frequently decided, in this state, that a charge in gross by an administrator does not, as matter of law, 'furnish a reason why the charge should not be allowed, although gross charges may be the subject of severe scrutiny.

The administrator should clearly account for the fourteen dollars which he received upon the sale of the sleigh and harness belonging to the estate, and, by mistake, not accounted for in his previous account.

The judgment of .the county court is, then, reversed with costs, and judgment rendered in this court in conformity to the judgment of the court of probate.