Ord v. Little

Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred.

Section 222 of the act to regulate the settlement of the estates of deceased persons, providing for the compensation of the executor or administrator, allows him “ commissions upon the amount of the whole estate, accounted for by himand a previous section requires him to take into his possession, “ all the estate of the deceased, real and personal.”

The language of the act admits of but one construction. It allows compensation to the executor according to the rates established, upon the whole value of the estate, both real and personal, but it evidently intends this rule to apply only to those cases where the administration is complete, and the estate finally settled. The law cannot be construed to mean that the same rate of compensation may be allowed to a succession of administrators of the same estate, for if that were so, the estate might be eaten up beyond the power of prevention.

Where, therefore, an administrator resigns, or is removed, leaving the administration incomplete, there is no fixed rule of compensation for the services he has rendered.

In such a case it is the duty of the Probate Court to examine into the nature and value of the services rendered, and comparing, as well as possible, that which has been done with what yet [290]remains to be done in the course of administration, to apportion the compensation which has been fixed by law for the whole, according to sound judgment.

The judgment is reversed, and the cause remanded.