#### JOHN SELLARS vs. WILLIAM ASHFORD.

Where there are joint administrators and one of them has paid out more .than the assets he has received and files a bill against his co-admin-istratorfor indemnity, he cannot object to the allowance of commissions to this co-administrator for the services the latter has rendered, though by making such allowance there will be no assets of the estate remaining to re-imburse him.

Where an administrator, at an execution sale for a debt due the estate, purchases negroes for the benefit of the estate, and accounts for them specifically, he is entitled to commissions on the sum bid for the ne-groes in the same manner as if he had1 received so much money.

The case of *Wallon*v *Avery.,*2 Dev. & Bat. Eqp 405, cited and approved.

This was a cause transmitted to the Supreme Court from the Court of Equity of Sampson County at the Spring Term, 1835, having been, previously set for hearing.

The plaintiff and the defendant administered on the estate of Josiah Blackman, deceased, and certain creditors of the intestate instituted suits both at law and in Equity against them for the recovery of their demands. The administrators then had assets more than sufficient to satisfy the recove*105ties that were subsequently made — from them, and therefore in those suits admitted assets generally. But, pending those suits, the next of lun of the intestate Josiah, filed a bill against the plaintiff and defendant, for an account of the estate and distribution, and therein a decree was rendered for considerable sums of money to be paid to the several next of kin, which were accordingly paid and refunding bonds taken. That decree was pronounced while the suits of the creditors, just mentioned, were still pending, and, therefore, in the decree, the administrators were allowed to retain a sum of money to answer such recoveries, as it was supposed might be made in the creditors’ suits. But no account was taken, in either of the suits, of the assests of the administrators respectively, so as to shew whether the sum thus retained was in the hands of the present plaintiff or defendant: because in the creditors’ suits the administrators had joined in defence and had confessed assets; and in the suit by the next of kin it was not deemed material, as the administrators had jointly administered and made themselves liable for each other’s acts to creditorsand next of kin. Afteiwards the creditors effected their recoveries, and by executions levied much the larger part of the money from the plaintiff, This bill was then filed, and, besides the facts above stated, it charges that the plaintiff paid to the next of kin, on their decree, all the assets that ever were in his hands; and that his co-administrator, the defendant, was possessed of all the assets of their intestate and particularly the sums they were permitted by the decree to retain, as before mentioned, and ought to have paid therewith the recoveries, which the plaintiff had been compelled to pay out of his own proper estate. The prayer of the bill is, that the defendant may come to an account with the plaintiff touching their administration, and, that out of the assets, that may be found thereon in the hands of the defendant, may be paid the balance that may appear to be due to the plaintiff for disbursements by him on account of the estate and in satisfaction of the said creditors, over and above the assets, which came to his hands. The defendant answered and submitted to the account; but stated, that the sums [retained were *106not held by him, but by the plaintiff himself, and that the defendant was actually in advance for the estate and should lose by his administration: and-he insisted, that if a balance s^1011^ f°und due from the estate to the plaintiff, yet that the defendant would not be liable therefor, nor any part thereof, beyond the assets in his hands, but that the plaintiff ought to look to- the next of kin to- return what would make him whole.

There was a reference to the clerk to take the account as prayed for: and he- reported that the plaintiff had paid more for the estate than he had received, and, that with a commission of 2§ per cent, on the assets he had received, there was a balance due to him of $873 49;. and that the defendant had received more assets than he had disbursed, and that after allowing him a commission of 2! per cent, on the assets, with which he was charged, there was a balance due from the defendant of $733 13, applicable towards the plaintiff’s satisfaction.

To the report, both parties excepted; and upon the exceptions, the case was brought on to be decided.

The defendant’s exceptions were allowed, but as they depended- entirely upon matters of fact, it has not been thought necessary to report the opinion of the Court in regard to them. Deducting the sums excepted to, and allowing his commissions as reported by the master, it appeared that he too had advanced for the estate more than the amoun t of assets he had received.

*J H.*Bryan, *Badger*and *Strange*for the plaintiff,

*W. 1Í. Haywood*for the defendant.

Ruffin, C. X.

The plaintiff has filed two *exceptions,*of which the first is unfounded in fact, and for that reason overruled.

His second exception is to the allowance of commissions to the defendant; which, however, is only *2i*per cent, on the defendant’s receipts (as found by the report) and amounts to the sum of $100 87. To the extent of the charges to which the defendant’s exceptions have been allowed (for overcharges of receipts by him on account of the estate,) namely, *the**107sum of $811 39, including interest, this exception is obvi ously well founded, and the credit of commissions must be reduced $20 28, being 21 per cent, on $811 39. But the objections to the residue of the commissions are not well founded. The first is, that the defendant is not entitled to any commission, because there is no estate to pay it, inasmuch as the whole will not indemnify the plaintiff. But that reason will not suffice, for the plaintiff ought to have taken care not to exceed the assets in his hands, and, if he has done so, it is his folly, and he cannot .deprive the defendant of the compensation the law allows for his labor and responsibility. Another objection is, that the sum of $1364 50, on which commissions are counted, was the value of negroes bought by the defendant at a sale by execution for a debt due to the administrators, and which the defendant purchased for the benefit of the estate and delivered over specifically. But that is not like charging a commission on the value of slaves left by an intestate, as was the case in *Walton*v Avery, 2 Dev. *&*Bat. Eq. 405; but is the same thing as receiving the money from the sheriff. Nay, it is more; because the defendant ran the risk of being compelled to keep the negroe-s on his own account and losing by them, though in this case it was advantageous to the estate. Therefore, this exception must also be disallowed, except the sum of $20 28, as before mentioned.

But as the account, when corrected according to these directions, shews a balance due from the estate of their intestate to the defendant as well as to the plaintiff, the Court cannot relieve the plaintiff upon this bill, in which the plaintiff could only be directed to be paid out of assets now found to be in the defendant’s hands. The bill must, therefore, be dismissed, but without costs to either party; and each party must pay one half of the expense of taking the account.

Per Cueiam, Decree accordingly.