Estate of Barton

Myrick, J.: The will of testator omitted to name an executor. There was a contest on the application for letters of administration with the will annexed, between J. E. Griffin, appellant herein, on the one side, and Perdue (one of the devisees) and Rowland on the other. The Probate Court decided in favor of Griffin, and appointed him administrator. Perdue and Rowland appealed from that order, upon which appeal the order of the Probate Court was reversed. Upon the going down of the remittitur, Griffin was removed, and Perdue and Rowland were appointed. The matters involved in the present appeal arose during the time that Griffin was administrator, and relate to items contained in his account rendered for settlement. In the contest and on the appeal, Griffin paid $275 to attorneys for services rendered on his behalf, and $9.20 for printing brief. These items were objected to, and were disallowed by the Court below. We think this ruling was correct. The question involved in the contest and appeal was as to who should administer, and thus receive the commissions. The estate—that is, the creditors and devisees—was not, as such, at all interested. It was a controversy between Griffin on one side, and Perdue and Rowland on [89]the other, and the estate should not bear the expense, certainly of the losing party. Whether the other parties will have their expenses paid out of the estate, will have to be determined if they shall present the same in their account. (Leading Cases in Equity, vol. 2, part 1, pages 548, 552, edition of 1877, and cases therein cited.)

The property of the estate was appraised at: Moneys, $2 ; real estate, $7,650; and Griffin received for wood $25, and collected on a debt $40.37. He leased the land for the year 1877, and received therefor $950. He also leased the land for the year 1878 for $950, but was removed before the rent became due. He charged commissions on the appraised value of the real estate, and on the rental to be received for the year 1878. These items the Court disallowed, but allowed him $100 for the care of the real estate. We do not see how he could have been allowed full commissions on any property that he did not fully administer upon. The real estate still remains unadministered, the rental uncollected. He will probably hereafter be entitled to a proper proportion of the commissions on the value of the real estate,but there is now no rule by which the Court can say that his share of the percentage should be so much, and his successors’ share, or their successors’, so much.

The Court, in allowing him $100 for the care of the real estate, was doubtless of opinion that he would, in any event, be entitled to that sum; but where there is no claim for compensation for extraordinary services, we do not see that an outgoing administrator is legally entitled to any certain, definite share of commissions upon property not yet administered. We cannot say upon how much he shall receive seven per cent., upon how much five per cent., or how much four per cent. In all these matters his successors have a right to be considered. There is but one aggregate sum to be allowed as commissions, and that sum must be properly apportioned by the Court. The Court has no basis upon which to make an apportionment until the close of the estate. At the close of the administration the apportionment can be made.