SETTLEMENT OF ESTATES.

[Hamilton Circuit Court,

January Term, 1886.]

Cox, Smith and Swing, JJ.

#### *Sophia Campbell, Admx. v. John H. McCormick, Adm’r.

1. Administrator Liable For Rents of Real Estate,

Rents received by an administrator from the real estate of his intestate under certain circumstances, may properly be charged to him, on his account filed for the settlement of the estate.

2. Reopening of Former Accounts, on Subsequent Settlement.

An account containing items of credit to an administrator for his statutory commissions, and for extra services, and for an amount paid by him for attorney fees in the settlement of the estate, and which account current was duly allowed and confirmed by the probate court, cannot, on the filing of a second account, more than one year thereafter, be reopened ior hearing, and such items be disallowed by the court, on exceptions filed thereto, when it is not claimed or found that there was any error or mistake therein, or in their allowance.

3. Unfaithfulness in Administration does not Deprive of Compensation.

Under our statute, an administrator is legally entitled to the statutory commissions “ on the amount of the personal estate collected and accounted for by him, and of the proceeds of the real estate sold under an order of the court for the payment of debts,” although he may have failed to charge himself with all the assets received by him, or has asked for credits for sums not paid by him. Even if there be unfaithful administration of the estate, it will not deprive an executor or administrator of a right to compensation for his services, so far ss they have been beneficial to the persons interested in the estate.

Error to the Court of Common Pleas of Hamilton county.

This case was cited by tbe probate court, *in re*Strickland, 1 Dec. 702, 704, the questions being the pdwer of the probate court to examine into parts of an account not specifically excepted to, and fixing the compensation of a guardian.

Smith, J.

The error assigned in this case is, that the court of common pleas erred in reversing the judgment of the probate court.

The record discloses the following facts : On March 16, 1885, McCormick, as administrator of Dorman, filed in the probate court, his second account for settlement, and on the 13th of April, 1885, Sophia Campbell and the other heirs at law of the intestate, filed exceptions to this account, and to one which had been filed by him in 1881, and which in the same year was duly approved and confirmed by said court. The grounds of exception were, that the administrator had not accounted for all the assets that had come into his hands — and to the items of the accounts for which there were no vouchers, and to those not properly authenticated Dy affidavits. They specially excepted to the amounts charged by the administrator for his services, and to the sums paid to his attorney, as excessive and unreasonable.

In the account which had been filed in 1881, and then settled and approved by the-court, there were credits of $50 paid to his attorney, $87.42 for his statutory commissions on the amount of the estate then accounted for, and $60 ior extra services rendered by the administrator.

On the second account, filed in 1885, he asked credit for his statutory commissions on the additional amount of the estate accounted for, and for an additional sum for extra services, and for a further amount paid to his attorney.

Quite a large part of the debit side of the account consists of charges to the administrator of rents received by him, and the residue is the proceeds of real estate sold by him under the order of the court, to pay the debts of the intestate.

On March 21, 1885, Sophia B. Campbell was appointed administrator *de botris*
      *282
      *non*of the estate, in the place of McCormick removed, and on the 21st of September the exceptions to the accounts were heard, and the court made a finding as to the mode in which the account of the late administrator should be settled. It was found by the court:

1st. That McCormick, as administrator, had received from the sale of real estate, the sum of $807, with which he had failed to charge himself.

2d. That he had credited himself with the payment of three items, amounting in the aggregate to $70, for which he was not entitled to credit. 3d. That $250 of the amount paid to his attorney should be deducted as excessive. 4th. That he had collected $55 of rents, with which he had not charged himself, but was entitled to a credit of $60 additional, paid out of the rents for repairs upon the premises, and that he was entitled to a credit of $5, the difference between these sums. 6th. That said administrator did not faithfully administer said estate, and account for and pay over the funds of the estate, as he was bound to do. And it was therefore adjudged that he was not entitled to have any compensation or commissions as such administrator, and that the whole amount charged therefor on the two accounts, amounting in the aggregate to $647.42, be stricken from the accounts.

And on this basis the court settled the account of the administrator aud found a balance in his hands, which he was ordered to pay over to the present administratrix. To this judgment McCormick excepted, but did not present a bill of exceptions.

He thereupon filed a petition in error in the court of common pleas, which reversed the judgment of the probate court, for the reason as stated in the entry, “ that the probate court had charged the administrator with $55 of rents not included in his account.” And this case is now before us to review than judgment of reversal.

It is evident as to many of the findings of the probate court that the correctness of them cannot be considered, because the evidence upon which the court acted is not before us — thus we must take it as true that the evidence submitted to the trial court, showed that the amount charged for attorney’s fees was excessive, aud that the administrator had not charged himself with all the assets received by him, and had credited himself with items for which he was not entitled to credit. If the administrator had desired to have the decision of the court as to these matters reviewed, he should have taken a bill of exceptions setting out the evidence upon which the court acted.

There are, however, several questions raised upon the record which we proceed to consider, and the first is, whether the probate court erred in its action as to the $55 received by the administrator for rents and added by the court to his account.

In each of the two accounts filed by him, the administrator charged himself with rents received by him, and the same or a laige part thereof is shown by his accounts to have been used as assets of the estate, and disbursed by him in the payment of the debts of the intestate. In the exceptions filed to these accounts, no exception is taken as to this, thus showing the assent ot the heirs to it.' The court also accepted the account as presented by the administrator, so far as he charged himself with the rents, and presented proper credits for payments on account of the real estate - but finding that he had received $55 additional from the same source, charged him with it and credited him with $60 for repairs upon the property, which stood on the same footing. It would seem, that in this the administrator was not prejudiced, as taking the two items together, the court charges him with $5 less than he was charged with on the account oí rents and repairs as presented by him.

We think, too, that a reviewing court cannot properly, from the iace <4 the account itself, or taken in connection with the finding of the court, say, that the items of rent charred to the administrator were not properly assets received by him aud with which he ought to be chaiged. For all that appears, they may *283have been for rents that had accrued prior to the death of the intestate — -or those arising from a lease for years; or they may have been received for rents accruing after the death of the intestate, under an agreement of the heirs that they should be assets in his hands. By section 6146, Revised Statutes, the heirs of an intestate are authorized to give a bond in the probate court, conditioned to pay all of the debts of such intestate, and thereby save the real estate from sale by the administrator to pay such debts. Suppose they furnish the administrator with money sufficient to do this. Is he not to account for it as assets ? We think he should, f.nd that the probate court, on the settlement of his account, would be authorized to charge him with it, and compel a correct account of it to be filed. If, by agreement with the heirs, he receives the rents of real estate to apply to the debts, the same result follows, and such agreement may have been shown by the evidence in this case, and we should presume that it was, if necessary to support the judgment of the trial court. But on the broader ground laid down in the case of Conger v. Atwood, 28 Ohio St., 134, we would be disposed to hold (if necessary so to do), that if this administrator had received these rents, *without authority*from the heirs, and used them, as it is shown he did in this case, in paying the debts of the estate, that he was bound properly to account for them with the court, and that its action in correcting this account was not erroneous. We are of the opinion then, that the reason which the court of common pleas assigned for the reversal of the judgment of the probate court, was not a sound one — but if the judgment itself was right, it does not matter what reason was assigned for it.

The next question which arises is this: Did the probate court err in striking from the account of 1881,the items allowed to the administrator for his statutory commissions and for extra services ?

Section 6187, Revised Statutes, provides, “that upon every settlement of an account by an executor or administrator, all his iormer accounts may be so far opened, as to correct any mistake or error therein.”

It was not claimed in the exceptions filed, and it was not found by the court, that there was any error or mistake as to these items — indeed the contrary might fairly be interred from the finding itself. It was clearly an attempt to punish the administrator for failing in his second account (filed four years after the settlement of the first), to charge himself with the proper amount, and for crediting himself with amounts to which the court thought he was not entitled. It is only where error or mistake in one account has intervened, that the court on the filing ot a subsequent one, can correct such mistake or error; and we think the probate court erred in its action, whereby it undertook to deprive the administrator of his right to the commissions and allowance made to him for extra services on the settlement of his first account. And the same would be true as to the item lor attorney fees, if it appeared that this had been disallowed — which, however, is not the crse, as the amount deducted from the sum paid to the attorney, might properly be held to have been deducted from the allowance asked for on the account of 1885.

The remaining question is whether the probate court on the settlement' of the account of 1885, was authorized to refuse to allow to the administrator *any*commissions on the amount of the property accounted for by him.

He had charged himself with several thousand dollars of personal property, and with a large amount, the proceeds of real estate sold under the order of the court to pay the debts of the estate, and had paid out, as shown by his account (in this respect approved by the court), the greater part thereof on the debts of his intestate. But for the reason that he had failed (whether by mistake, or willfully, does not appear), to charge himself with on item, and had improperly ' credited himself with other items, the court found that this was unfaithful administration, and refused to allow him any compensation for his services as administrator. Was this right ?

*284Section 6188, Revised Statutes, provides that “ executors and administrators *may*be allowed the following commissions upon the amount of the personal estate, collected and accounted for by them, and of the proceeds of the real estate sold under an order of court for the payment of debts, or under the direction < f the will, which shall be received in full compensation for all their ordinary-services.” * * * “ And in all cases, such further allowance shall be made, as the court shall consider just and reasonable, for actual and necessary expenses, and ■ for any extraordinary services not required of an executor or administrator in the common course of his duty.”

Does this section confer a discretion upon the probate court, to allow the whole of the statutory commissions, or such part thereof as it may deem proper, or if it chooses so to do, may the court refuse to allow any part thereof?

In some of the states, their statutes do not fix the amount to be paid to such trustees. In such cases it seems to rest in the sound discretion of the probate court, and yet, as a general rule, it is fixed by custom. In many of these states it has been judicially held that “ unlaithful administration will not deprive an executor or administrator of a right to compensation for his services, so far as they have been beneficial to the persons interested in the estate.” In others it has been held otherwise, “ where his *willful*default, or gross negligence, has occasioned loss to the estate.” But in other cases it has been held that “ compensation being a matter of discretion, it may be refused for misconduct.” See note to 8 Williams on Exrs., page 1962, and cases cited.

•If our statute gave to the probate court the right to determine as to the amount of such commissions, in this conflict of authority, we should be disposed to adopt the first rulé referred to;' as being the most just and equitable. As in contemplation of law, any and all loss to an estate from the" unfaithful administration thereof, is amply guarded against by the bond which is required to be given, it would seem just that if the services of the administrator'have been valuable .to the estate, that he should receive compensation therefor, and particularly should it not be disallowed, unless his willful default, or gross negligence, has, occasioned such oss.

But we incline strongly to the opinion, that under our statute, such a trustee is entitled to his commissions, even if he has failed properly to administer the estate. It is true that the statute says he “ *may*be allowed.” But it is a familiar doctrine of the law, that the word *may*often has the'meaning of *shall—*and in general laws this is the rule. Thus, as stated in Bouvier Daw Die., title 11 may,” ” Whenever a statute directs the doing of a thing for the sake of just ce or popular good, the word *may*is the same as *shall.”*And again, “ The words *shall*and may, in general acts of the legislature, are to be construed imperatively.” And we think it should receive that interpretation here, as it seems tha the two words in the same section are used *interchangeably*— shall being used twice therein ; that is, the statutory commission fixed, “ *shall*be received in full compensation,” and “in all cases, such further compensation *shall*be made,” etc. It is hardly • robable that the legislature intended to make it imperative upon the probate court, to allow for extraordinary services and expenses, and leave the ordinary commissions to the discretion of the court. The compensation for the extra services *shall be*allowed, in addition to the other, that is, to the commissions fixed by the statute itself. We think it was the intention of the legislature to withdraw this matter from the discretion of the court, and to have it fixed so that the administrator or executor might rely on receiving what the statute provides for, and to have a uniform rate of compensation throughout the state, and not have the amount of such commissions to vary with the views or feelings of the court called upon to act in the matter.

So far as we are advised this has been the uniform practice in this state. This is the first time that we have known an administrator to be deprived of his statutory commissions, even when it appeared that he had been direlict in his *285duty to the estate. This universal practice goes far to show the judgment and understanding of courts and the profession on this point, though so far as we know, it has not been adjudicated in Ohio.

W. J. Coppuck and Isaac B. Watson, for plaintiff in error.

Milton Sater and S. A. Miller, for defendant in error.

Our conclusion then is, that the judgment of the common pleas, reversing that of the probate court, was right, and should be affirmed with costs.