#### Hipkins v. Bernard, Executor of Hipkins. Bernard v. Hipkins and Others.

Argued January 11th, 12th, and 13th, 1813.

1. Executors — Commissions—On What Allowed — Converting Bonds into Hortgages.* — An executor may be allowed a commission for turning bonds, or other debts, payable to his testator, into mortgages, (without any actual receipt of the money,) and delivering such mortgages to the legatees.

See the case of Hipkins v. Bernard, executor of Hipkins, and others, 2 H. & M. 21, which in this respect, is overruled by this case.

2. Same — Same—Same—Sale of Crops. * — An executor is entitled to a commission upon sales of crops made by him upon the lands of his testator; the proceeds thereof being lawfully received and accounted for by him; — and also upon money found in the house, and disbursed by him for the use of the family, or invested in bank stock.

3. Same — Expenses of Administration. — Under circumstances, an executor may be allowed expenses of administration, (including clerk hire, rent of a counting-room, and postages,) in addition to his commission of five per cent.

These two causes were heard together in this court, as well as in the court below. *Elizabeth Hipkins, widow of John Hipkins deceased, filed her bill in the Superior Court of Chancery, for the Richmond District, in May 1805, a,gainst the executor aud two legatees, of one of whom the executor was guardian, demanding her distributive share of the personal estate, and dower in the lands and slaves of the testator, who died in March 1804. Having renounced *41all benefit from the will, she considered herself entitled to one-third of the lands and slaves, and one half of the personal estate ; the testator having no child living at the time of his death,(a) but grand children only. The defendants, by their joint and several answer, insisted that her share of the personal estate .was one-third, and no more. The chancellor pronounced an interlocutory decree according to the prayer of the bill; and that decree was affirmed by the court of appeals in May 1806;— which being certified to the Court of Chancery, it was ordered, in September following, that an account of the defendant William Bernard’s administration of the goods, chattels, and credits' of his testator John Hipkins be taken and reported by a commissioner : but this order was not to suspend the effect of the decretal order formerly made for the assignment and allotment to the plaintiff of her dower and distributive share, as aforesaid.

The commissioners appointed to carry that decretal order into effect made a report, October 15th 1806, stating that William Bernard the executor was willing that an allotment of the widow’s dower in the lands, (1) slaves, stocks, furniture and plantation utensils, should take place, but would not consent that any allotment of the debts should be made until his administration account should be settled; because (as he alleged) the widow had, from time to time, drawn large sums of money, as well as other supplies, from him : he was willing, however, to assign to her a sum in mortgages not exceeding 80001. ; postponing the allotment of the balance (should there be any) until the settlement of his administration account:— the commissioners, therefore, consider-ing *themselves not authorized to execute the order in part, submitted the matter to the court: but no farther order appears to have been made, or moved for, in relation to the allotment, until after the account was taken.

In May 1807, the commissioner, to whom the examination of the administration account was referred, reported that William Bernard the defendant had kept the account of his executorship in a book which, by consent of both parties, was made a part of this report; — that, upon a careful examination of the said account, the commissioner had found all the charges therein supported by satisfactory vouchers and testimony ; but a number of the charges, such as travelling expenses, &c. were objected to by the plaintiff: —that, at the time of the death of John Hip-kins, all the debts due to his estate, and all other goods and chattels whereof he died possessed, were regularly inventoried ; — that the debts so due were classed under two heads, to wit, debts sperate and desperate ;— those of the former class, (including cash on hand and three bills of exchange,) amounted to 280091.13s. *0%d.*all which, except 241. 8s. *8%d.*had been received by the executor and duly accounted for ; those of the second class were passed to the credit of the estate as received : — that, in the month of March 1804, sundry debts due to William Bernard & Co. were transferred from their books to those of the testator, amounting to the sum of 22201. 7s. *?>%&.*which were also received and accounted for by the executor ; making the sum of 30,2301. 0s. 4d. due to the estate of John Hipkins at the time of his death, exclusive of sundry desperate debts before named:— that since the testator’s death, the interest, on the before mentioned debts, until the period when they were received or changed into mortgages, amounted to 29441. 8s. lj^d. ; that the interest, received by the executor for loaus made by him on mortgages, amounted to 20471.16s. *9%d.,*and the interest on other sums to 2641. 18s. 0d., making an aggregate of 52571. 2s. lid.: — that the executor had received and accounted for the proceeds of the farms, the rents of houses and lots, desperate debts, debts originally due to *Hipkins & Reynolds, and various other sums, amounting to 65751. 16s. 9d.: — making, in all, the sum of 42,0631., which had come to his hands, and on which, in the commissioner’s opinion, he was entitled to a commission of 5 percent., except on 20001. part thereof, being the amount in currency of three sterling bills of Exchange, on London, which the testator in his life time had purchased and remitted to John Reynolds & Co. of that place, and died before advice of payment, or any account shewing that credit had been received from them; on which sum of 20001. the commissioner was of opinion that no commission ought to be allowed the executor ; observing, however, that the trouble of settling the testator’s accounts with John Reynolds & Co. (which embraced the credits of these bills, and were lengthy, and of considerable amount,) devolved on the executor, who had settled the same, and produced satisfactory vouchers, and a fair statement of his actings thereupon. The commissioner remarked that, “from an investigation of the books of accounts it did not appear that the debts standing on the books of the testator were, at the time of his death, in so unsettled or perplexed a state, as to require so much trouble and attention as estates of the same magnitude generally do ; —yet it was evident, that a considerable share of time and trouble had been bestowed, and that with great care and attention ; and, so far as the commissioner could perceive, the executor had not lost one single debt through neglect or want of attention. ' These and other considerations induced him to fix the commission at 5 per cent., subject to the determination of the court to which the question was also submitted, whether the expenses of the executor and his assistants, *42with the salary which he agreed to give a clerk, the rent of a counting room, and post-ages, — amounting to 1121. 10s. *l%d.,*— ought to be allowed or not. The commissioner farther remarked, “it is customary for persons employed in the management of estates of this kind to charge 5 per cent, and all expenses attending the collections, or 10 per cent, and no charges for collection. It appears to your commissioner that an estate of this magnitude *could not have been brought so nearly to a close, in so short a time, without the assistance of some person of considerable' experience. ” The executor had made payments as follows :

Amount of debts due by the testator, E. 1409 IS *1%*

Do. paid through the hands of John Reynolds of Eon-don, including the three sterling bills, 4634 12 9

Disbursements, including all expenses >of the farms, repairs done, houses, lots, mill, expenses attending collection, &c. &c., 2430 16 5

Dor building a house at Rose Hili, agreeably to a contract made by the testator, 982 8 *11%z*Paid Philip Eightfoot amount of his wife’s Eegacy, with interest until paid, 2194 0 0

Paid Elizabeth Hipkins, widow of the testator 30341. 16s. *l%d.*— interest thereon to the 30th April 1807— 2S21. 0s. 3d., 3286 16 *4%z*

Paid for the support and tuition of John H. Bernard 2141. Ss. *9%d.*— interest 121. 17s. 9d., 227 3 *6%*Total, E. 15,165 13 *iyz*

He had on hand mortgages, which he exhibited to the commissioner, amounting to the sum of, E. 24,951 10 2

Bonds taken for the sales o f crops, &c., 267 13 0

S p e r a t e debt s r e - mainm g unsettled, 24 8 *8%*

His c o m - mis s i o n s on 40,0631. would be, 2003 3 0

E. 27,246 14 *10%*

Making in all,

E. 42,412 7 11^

*So that, according to this statement, a balance of 3491. 7s. *11% d.*would be due to the executor, upon his delivering up the mortgages, bonds, and sperate debts before mentioned.

The commissioner also reported, that, upon an accurate estimate made for that purpose, he found that Elizabeth Hipkins, widow of the testator, is entitled to the sum of 149551. 19s. 5d. as her proportion of the estate ; that is, one equal third part of the proceeds of the lands and slaves, and one half of the goods, chattels, and credits, after the payment of all just debts due by the testator; — including her proportion of interest and all other profits of the estate; — in part of which sum, she had been paid, as aforesaid, the sum of 32861. 16s. 4%d.

William Bernard, the executor, claimed before the commissioner, and also filed a cross bill against the widow and legatees to recover, the sum of 13591. 9s. 3d. which he alleged to be due to him from the testator’s estate, for his half of profits arising in trade under the firm of Hipkins & Bernard, with interest thereon, from the 21st day of January 1795, to the 30th day of April 1807, the day to which interest was calculated in the settlement of the administration account, amounting in all, to 21931. 19s. 3d.; one half of which claim, if allowed, would be deducted from Mrs. Hipkins’s proportion of the estate. To this claim she wholly excepted. In the suit on the cross-bill, an account of the copartnery of Hipkins & Bernard was ordered to be taken ; and a report was made, stating that John Hipkins and William Bernard composed that firm, but whether William Bernard was to share in the profits, or not, the commissioner could not say.

The plaintiff Hipkins filed voluminous exceptions to both reports ; and both causes being heard together on the 15th of June 1808, Chancellor Taylor was of opinion, “that the plaintiff in the second suit was not entitled to any of the profits of the mercantile concern of Hipkins & Bernard ; that, as executor, he should not be allowed more than a commission of five per cent, upon actual credits, for risk, trouble, and reasonable expenses ; and that he was properly credited for ^clerk’s hire, house-rent, postage of letters, and expenses in adjusting the affairs of William Bernard & Co. in his administration account of the goods, chattels and credits of John Hipkins, deceased ; since the parties did not require, as they do not now require, a separate account of that concern.” So much of the reports, as conflicted with this opinion, was therefore re-committed, to be reformed accordingly ; and it was decreed and ordered, “that the residue of the same reports be confirmed ; that the defendant in the first suit assign and transfer, to the plaintiff in that suit, as many of the mortgages, in the report in the first suit mentioned, as shall amount to the sum of 11,4941. 14s. Id. principal (which appears to be her proportion according to the said report,) upon her executing to him bond and security in the penalty of twenty thousand dollars, conditioned to refund in case of debts hereafter coming against his testator ; that the said William Bernard retain a like sum for the use of his ward ; and that if the said plaintiff and defendant should disagree in the distribution of the mortgages aforesaid, certain persons, appointed commissioners for that purpose, should make division of the same, and report the said division to the court.”

In obedience to this decree, a reformed report was made by the commissioner, allowing the executor commissions only on 18,1401. Os. 2d. the sum actually received by him in cash ; including 26301. 6s. Od. the money' found in the house at the time of the testator’s death ; which alteration being made in the account, it was so stated as to shew a *43balance of 7531. Is. *0%d.*due from the executor to the estate.

To the amended report, William Bernard filed exceptions ; 1st. Because a commission had not been allowed him on 39271. 12s. 15^d.; “being the amount of sundry sums settled by him by transferring the respective sums to Shis own debit, and all of which he accounted for, in the original report, to the estate of his testator ; and whether he paid the same, or received the money from the debtors, could make no difference with the estate 2. Because the commissioner had f’efused to allow him a commission on 47121. 6s. *Zfád.*“not included in the mortgages, or received in cash, or placed to *his debit in the said original report, but accounted for in the said report under account of disbursements, being paid in satisfaction of claims against the estate ; and as it would make no difference to the estate whether the amount was first received in cash by the executor, and afterwards paid away, or the creditor received a debt in discharge of his demand, the commission ought to have been allowed 3. Because the commissioner had not allowed him a commission on 10221. 19s. ll^ád.; “being the amount of sales of crops made by him after the death of the testator, which were included in mortgages which had been divided between the representatives of the testator; a compensation for this being certainly just; and, as he made the sales, and loaned the bonds, no injury could result to the estate ; for, if the bonds had been divided under the laws, the defendant believed a commission would have been allowed 4. Because no compensation was allowed him by the said report for settling and paying over the amount due the estate from Wm. Bernard & Co. appearing to be 49801. 15s. lOjád. which sum was included in the mortgages aforesaid : and 5. Because the commissioner had allowed him no compensation for settling the business of Hip-kins & Reynolds.

Many depositions were taken on both sides; from which, taken together, it appeared that the suit in behalf of Mrs. Hipkins was originally a friendly one, instituted for the purpose of settling the question, whether she had a right to one half, or to one third of the personal estate of the testator; that the utmost harmony existed between her and William Bernard, until he married a Miss Eauntelroy, his second wife ; that he furnished Mrs. Hipkins with money, as she wanted it, for her private use, before the suit was commenced, and afterwards ; that the first investments of the cash, bonds, &c. in mortgages, were made by him without consulting her, and the last in opposition to her express disapprobation ; that she afterwards consented to ratify what had been done, and to take her share of the mortgages, but always positively objected to allowing him commissions ; that an estate called the Port Conway estate, worth about 50001. was given by the '^testator in his lifetime, to William Bernard, and probably in-

tended as full satisfaction for his share of the profits of the mercantile concern of Hipkins & Bernard *;*no claim for which appears to have been set up by the said Bernard, until after the institution of this suit.

On the final hearing of the cause, Chancellor Taylor, “being still of opinion that a commission of five per cent, upon actual receipts, is a sufficient compensation to an executor or an administrator, for trouble, risk, and reasonable expenses, although the latter, under some peculiar circumstances, should be allowed independent of such commission *;*and that in no case should an executor or an administrator be allowed to bring any thing into their accounts, not properly a part thereof, for the purpose only of charging a commission, and over-ruling the exceptions, and confirming the said report decreed, that the defendant William Bernard, in the first suit, pay to the plaintiff in that suit, the sum of 3761. 10s. 6d. being one moiety of the balance stated against him in the amended report, with interest on the same, from the 21st day of May, 1807, until paid, upon condition that the plaintiff enter into bond, with approved security, in a penalty equal to double the amount thereof, conditioned to refund in case of debts hereafter coming against the estate of the said testator ; and that the said William Bernard retain the other moiety of the said sum for the use of his ward, between whom and the plaintiff the costs of the first suit were to be equally borne; and that the bill of the plaintiff in the second suit be dismissed at his costs.

Erom this decree both parties appealed.

Wednesday, December 1st, 1813,

*

Executors — Commissions—On What Allowed. — In Buxton v. Shaffer, 43 W. Va. 296, 27 S. E. Rep. 320, it is said: “A commission on actual receipts is, under the practice long established in Virginia and this state, the mode of compensation to personal representatives for their services, as laid down in Hester v. Lyon, 40 W. Va. 161. 20 S. E. Rep. 933; Estill v. McClintic, 11 W. Va. 399, and Hoke v. Hoke, 12 W. Va. 429. The cases of Farneyhough v. Dickerson. 2 Rob. (Va.) 582, and *Hipkins v. Bernard,*4 *Munf.*83, are referred to, to sustain this claim for commission. They held that where a personal representative turned over to legatees bonds on their legacies or shares the executor would be entitled to commission. But in those cases they were personal assets, vested wholly in the representative, and when he *41turned tkem over they were received as money. But in Claycomb v. Claycomb, 10 Gratt. 589, It was held that where the executor turned over slaves to legatees or distributees he was not to be allowéd commission on their value. The title to them was vested in him, but he was not to sell them unless required by the demands upon the estate. He was really there liable, chargeable with them, and yet was allowed no commission. — a much stronger claim for commission than here.”

See further, monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

To the point that an executor may be allowed a commission of ten per cent, of money received where the debts are small and numerons, and the debtors are presumed to have been much dispersed, the principal case is cited in Beecher v. Foster, 51 W. Va. 605, 42 S. E. Rep. 654.

(a)

 See Rev. Code, 1st vol. p. 163, 164, ch. 92, sect. 26, 27.

(1)

 Note. The executor held the lands as guardian of his son John H. Bernard; the other legatee being entitled to a pecuniary legacy only. — Note in Original Edition.

JUDGE ROANE

pronounced the following opinion of the Court:

“The Court, in considering the decree as to the first of these causes, is of opinion that, although there may not have been any previous request to the appellee William Bernard, to invest her share of the personal estate of John Hipkins, deceased, in mortgages or real securities, and although that course, by postponing the day of payment to a distant time, *might, in that view, have been inconvenient, if not prejudicial to her, yet that day having now past, and she having assented to, if not ratified, the course thus adopted by the said appellee in this particular, except as to the allowance of commissions ; and this course having been very beneficial to the estate, not only by making the payment of the principal money more secure, but also by causing the interest, due upon the bonds and other securities at the time of such investment, also to bear interest ; and this operation, of which the appellant will receive the full benefit, being more favourable to her than decreeing her her quota of the estate with interest in the usual manner; the Court is of opinion that a moiety of the mortgages, or other securities, thus taken by the said appellee, should be assigned to the said appellant on account of her quota of the estate of her deceased husband, after deducting the advances already actually made to her ; and that the said appellee should be allowed the usual commission of five per centum upon the mortgages, or other securities, taken by him as aforesaid ; (those hereby decreed to the appellant also included ;) and that this allowance shall equally apply to money received by him, and invested in mortgages, as to bonds which were so invested without an actual previous receipt of the money due thereon.”

“The Court is also of opinion, that a like commission should be allowed the said ap*44pellee upon the sales of the crops of the estate of John Hipkins, deceased, made by him, and the proceeds whereof were received and accounted for by him, or invested in mortgages or other securities as aforesaid.”

“The Court is also of opinion, that a like commission should be allowed the said appellee upon the money found in the house at the death of John Hipkins, the testator, and which is proved to have been disbursed by him for the use of the family, or invested in bank stock. As to the part thereof said to have been appropriated by the said appellee to his own use, it is neither shewn to have been so appropriated, nor could money, under such circumstances, lie so appropriated by an Executor, until the state of the assets *was fully ascertained, so as to justify such appropriation ; and, in the mean time, the money remains at his risque.”

“With respect to the claim for the rent of a counting room, expenses and postages, as also for the sum allowed by the Court of Chancery, in part of the salary agreed to, be given to the clerk, Benjamin W. Coleman, the Court is of opinion that, while the commission of five per centum is, in general, to be in full for all charges of this character, yet the said appellee, William Bernard, in this case, having also attended to the management of the plantations of John Hipkins the testator, which was probably attended with considerable trouble to him, and the charges in question being inconsiderable when compared with the magnitude of the estate to which they related, the Court is of opinion, that under these circumstances, the said charges ought to be allowed the said appellee, in addition to the commission hereby also allowed and provided for.”

“As to the bills transmitted to John Reynolds, in London, by John Hipkins in his lifetime, the Court is of opinion, that no commission is due the said appellee thereupon ; — but that, as to any further or ulterior sum, which may have been paid and remitted to the said Reynolds, by the said appellee, he is entitled to, and should be allowed the like commission of - five per centum thereupon.”

" “With respect to the decree as to the second of these causes, in which the appellant William Bernard asserts a claim under the co-partnership of 1789, the Court is of opinion that, under the testimony in this cause, tending to shew, that the Port-Conway estate was given to him in lieu of his interest therein, corroborated by the seeming dereliction of this claim by the appellant, until after the death of John Hipkins and his clerks, and until, also, the appellant was exasperated, and probably excited to set it up, by the course adopted and pursued against him by the appellee, Mrs. Hipkins; — that claim, under these circumstances ought" not now to be set up or sanctioned.”

“On these grounds, the Court is of opinion that the said decree, so far as it conflicts with the principles and provisions *now declared, is erroneous ; and that there is no error in the residue thereof. Therefore, it is decreed and ordered, that so much of the said decree, as is before mentioned to be erroneous, be reversed and annulled ; that the residue thereof be affirmed; that the appellant in the first suit, pay to the appellees in that suit, being the parties substantially prevailing, their costs by them about their defence in this behalf expended: and that the appellant in the second suit pay to the appellees in that suit, their costs by them about their defence in this behalf expended. And it is ordered that the first cause be remanded to the said Court of Chancery to be finally proceeded in pursuant to this decree.