#### *Turner v. Turner’s Adm’r.

May, 1844,

Richmond.

Administrators—Commissions—Statute.*—B. and J. *21qualify as administrators on an estate in 1821. J. dies in 1823, when B. qualifies as administrator on his estate, and dies in 1889 no account of the administration on the first estate ever having heen settled. Held, The act of the 16th February 1825, Sup. Rev. Code. p. 117. § 8,† does not deprive J. of commissions on his administration account. But held, B. is not entitled to commissions.

Edmund Turner of Southampton died in 1821, leaving a widow and two infant children; and Benjamin ’’Turner and Jarrell Turner qualified as administrators upon his estate.

Jarrell Turner died in 1823, when Benjamin Turner qualified as administrator upon his estate, and died as it appeared in 1829; up to which time, no account of administration upon Edmund Turner’s estate, either by Jarrell or Benjamin Turner had been settled.

Both the estates of Benjamin and Jarrell Turner, were after the death of Benjamin, committed to Carr Bowers sheriff of the county of Southampton.

In 1833 the infant children of Edmund Turner by their next friend, and their mother filed their bill in the circuit superior court of law and chancery for the county of Southampton, against Carr Bowers as the representative of Benjamin and Jarrell Turner, and their securities in their administration bond; asking for an account, and distribution of Edmund Turner’s estate.

The accounts were referred to a commissioner, who made a report, in which he did not allow commissions to either Jarrell or Benjamin. This report was excepted to by the plaintiffs on other grounds; but no exceptions were taken by either party to the disallowance of commissions, though the commissioner stated the fact in his report, with the reasons for it. The court sustained the plaintiffs’ exceptions to the report, and sent it back to the commissioner with instructions, by which he directed among other things, that commissions should be allowed. The commissioner having returned a report according to these instructions, it was confirmed by the court, and a decree entered accordingly. Erom this decree the plaintiffs appealed.

Rhodes and Macfarland for the appellants.

The question as to Benjamin Turner’s right to commissions they submitted was settled by the language of the statute, Sup. Rev. Code, p. 217, *§*8, and Wood v. Garnett, 6 Eeigh 271. As to Jarrell Turner, they contended *that although he died before the passage of the act, yet Benjamin Turner having qualified as his administrator, it was the duty of Benjamin to have settled the account of Jarrell’s administration as well as his own upon Edmund Turner’s estate. Eor failing to perform this duty, Benjamin Turner may be responsible to Jarrell Turner’s estate; but the terms of the law are plain. It was the business of Benjamin Turner to have performed this duty as well as any other which his office of administrator imposed upon him; and he not having done so, J. Turner’s estate must be subjected to the consequences of his neglect.

C. Johnson for the appellees.

The act of 1825, so far as it forfeits the commissions of executors and trustees, is a penal law and not to be extended ; and there is no case in which the forfeiture has been extended to the executor or administrator of an administrator. If such had been the intention it would have been so expressed. It would have given some time to the representative, in which to perform the duty. It would not have operated where there was no representative of the administra+or.

If indeed any duty had devolved on Jarrell Turner in his lifetime, then it might have been the duty of the administrator to perform it; but when he died, the act of 1825 was not in existence, and it was not his duty to settle his account.

*

Administrators—Commissions.—See principal case cited in Boyd v. Boyd, 3 Gratt. 125; Frazier v. Frazier, 77 Va. 795; *foot-note*to Morris v. Morris, 4 *21Graft. 295. For further cases in point, see mono-graphic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

†

That act says: That henceforth it shall be the duty of every executor, administrator, curator or committee, who shall hereafter qualify or receive their appointment in any court within this commonwealth, within two years from the time of such qualification or appointment, and so in like manner in every two years thereafter, and of every executor, administrator, curator or committee, who shall heretofore have received his appointment, or qualified as aforesaid, within two years from the commencement of this act, and so in like manner in every two years thereafter, to apply to the court from which their powers emanate, to appoint a commissioner or commissioners to state, settle and adjust their accounts on the estate committed to their charge, as far as they may have progressed in administering the same; and it shall moreover be the duty of such executor, administrator, curator or committee, within six months after the said order shall have been procured, to cause his accounts to be settled before such commissioners, and such accounts, so settled and adjusted, to return to the proper court.

Any executor, administrator, curator or committee, who shall fail to comply with the provisions of this act, shall forfeit all right to any commission or compensation whatever, for services rendered in administering so much of the estate of the testator or intestate, as shall not have been settled agreeably to the provisions of this act; and in no case where such failure may occur, shall any compensation for such service be allowed by the court to which such accounts may be rendered: *Provided*however, That the forfeiture of commissions hereby declared, shall not be incurred in any case in which within the periods above described for a settlement, the accounts of such executor, administrator, curator or committee, shall have been actually settled with the parties entitled to the assets, or shall have been referred to a commissioner in chancery for settlement in a pending suit, and shall thereafter be actually settled in such suit.

The president delivered the opinion of the court.

The court is of opinion that there is no *22error in the decree as against the representative of Jarrell Turner deceased; it is therefore considered that the same be affirmed; and that the appellants pay to the appellee, administrator of said Jarrell Turner his costs.

The court is further of opinion, that the claim of the appellee as administrator of the said Benjamin Turner, to commission or compensation for his services in administering *the estate of his intestate, was forfeited by his failure to comply with the provisions of the act of the 16th February 1825; it satisfactorily appearing that the said Benjamin lived more than two years after the passage of said act; and failed during his lifetime to settle any account of his administration. Eor this error, the decree is reversed with costs against the appellee as administrator of said Benjamin, and affirmed in all other respects; and remanded, to be proceeded in to a final decree, according to the principles above declared.