In re the Estate of Baxley

Bartol, C. J., delivered the opinion of the Court. On the 17th day of March 1876 the appellant was appointed “administrator pendente lite” of the estate of H. W. Baxley, deceased, pending the controversy on the caveat to the will of the deceased. He proceeded in the administration, passed two accounts, and on the 24th day of May 1877, the caveat being ended and the will admitted to probate, letters testamentary were granted to him. On the 18th day of June he filed his petition, stating that he was about to close his accounts as administrator pendente lite and to take possession of the estate as executor of the will, and praying that he be allowed a commission of not less than five per cent., for his services as administrator pendente lite.

The Orphans’ Court refused this application and ordered that in the account of his administration pendente lite a ⁵⁵⁹ commission of tivo and a half per cent, be allowed. From this order Mr. Williams has appealed. The appellant contends that the case is governed by the 5th section, Art. 93 of the Code, which provides that the commissions of an administrator shall be, at the discretion of the Orphans’ Court, not under five per cent., nor exceeding ten per cent. In our opinion this limitation upon the power of the Court, restricting them to the minimum rate of five per cent., must be construed to apply, “where the administration is full and complete.” The Act of 1798, ch. 101, sub-ch. 10, sec. 2, from which this provision of the Code is taken, was so construed in McPherson’s Adm’rs vs. Israel, 5 G. & J., 60.

By Art. 93, sec. 65, of the Code, the Orphans’ Court may allow to an administrator ad colligendum, a commission on the property and debts actually collected, and afterwards delivered to the executor or administrator, not exceeding three per cent., or on the whole inventory not exceeding two per cent. Sec. 74 of the same Article provides for a case where an administrator has died before completing the administration, and directs that the administrator of such deceased administrator, who shall comply with the provisions of secs. 72 and 73, shall be entitled to retain such commission as the Orphans’ Court shall in its discretion allow, not exceeding ten per cent. This section does not fix a minimum rate of commissions in such cases, but leaves it to the discretion of the Orphans’ Court to allow any rate not exceeding ten per cent. And in McPherson vs. Israel, before cited, this Court held that the Orphans’ Court “have the power, in the case of a partial administration of a deceased person’s estate, and where there is a further administrator to be paid for services, to allow such compensation as the services performed actually merit.” We quote the language of the Court, which is general, but of ⁵⁶⁰ course must be applied to the particular case then under consideration, which was the case of an administration de bonis non, the first administrator having