Gaines v. Reutch

Stone, J., delivered the following dissenting opinion: I am of opinion that the Act of 1884, does not apply to a case where administration was granted before the passage of -that Act. I therefore dissent from so much of the opinion of the Court, that decides that question. I, however, agree to the conclusion arrived at by the Court in the opinion. This conclusion would be the same whether the account was settled under the Act of 1884, or the previous law.

Ritchie, J., delivered the opinion of the Court. The testator, Andrew Reutch, died May 1st, 1883, and the appellee qualified as executor of his will on the 22d of the same month. As such executor he passed his first account October 22d, 1883, distributing $18,520.03 of the estate; qnd on February 1st, 1884, passed his second account distributing $31,509.28. In both these accounts the Orphans’ Court allowed him a commission of eight per cent.

On the 7th day'of October, 1884, after the passage ⁵²¹ of the Act of 1884, ch. 4⁷⁰, approved by tbe Governor April 8th, 1884, the said executor stated his third account in which he distributed $8082.02 ; upon which sum the Orphans’ Court allowed him eight per cent, commission. The appellants thereupon filed their petition objecting to this allowance on the third account as excessive under the Act of 1884, and claiming but two per cent, to be the highest legal commission. Their petition being dismissed, this appeal was taken. The provision of the Act of 1884 in relation to commissions being, that they shall be, in the discretion of the Court, not less than two nor more than ten per cent, on the first twenty thousand dollars of the estate, and on the balance of the estate not more than two per cent., the appellants contend that more than twenty thousand dollars having been previously administered in the first two accounts, the sum of $8082.02 distributed in the third account of October íth, 1884, being in excess of twenty thousand dollars, is subject to a commission not exceeding two per cent.

The appellee resists this view, arguing that the testator having died, and administration of his estate having begun before the passage of the Act of 1884, the executor was entitled to compensation according to the legal rate in force when he undertook the settlement of the estate, and that the Act of 1884 has no retroactive operation. The right to commissions for administering upon an estate does not in any sense arise from contract, but is founded only in statutory enactment. At common law