#### FRANCES A. GRAVES AND OTHERS *against*THOMAS W GRAVES *Executor.*

Where a testator gave to his wife thé share she would take in a ease of intestacy, and gave the residue to his children, and directed that his whole estate should be subject to the support of his family and education of his children, and provided that the education of his children should be under the direction of their mother, and that as the children should become of age or marry, the executor should allot a share to each, it was *Held*to be the intention of the testator, that the whole estate should go into the hands of his wife for the support of his wife and children, and that the executor’s sole duty was to make the allotment as the children might arrive at ago or marry.

■Where a testator directed that his widow and children should remain together as a family, she keeping the whole estate for the support of the family and education of the children, with directions that each' child should have a share on arriving at age or marrying, and the arrangement was defeated *281by the necessity of selling the homestead for the payment of debts, it was *Held*that the share of the children became immediately payable to their guardians.

One per cent was *held*to be a sufficient commission to an executor on money received by him from a clerk and master, arising on the sale of land.

Where the money of an estate was collected and paid out mostly in large sums without much litigation, it was *held*that three per cent on the receipts and disbursements was a sufficient compensation to an executor.

Cause removed from the Court of Equity of Caswell county.

The bill was filed by the widow and children of James L. Graves, against the defendant, his executor, for an account and payment of the legacies, given by the will. Mr. Donoho was appointed a commissioner to audit the account, who made two reports, the first stating a balance in the hands of the executor, and stating also, that a suit was pending against the estate in the court of equity of Caswell county, and that a final report could not be made until that suit was determined. Subsequently, he reported as the result of that suit, a decree for $3655, against the estate, in the hands of the defendant, which the commissioner allows in the account, as a credit to the defendant. The plaintiffs except to the commissions, allowed by the commissioner to the defendant. It appears that 4^-per cent had been fixed, as the rate to be allowed,'by an order of the County Court, and the commissioner adopts that allowance. The whole amount of receipts was about $18,000, of this, $6858 was money paid over to him by the clerk and master in equity, on the sale of land, and $450 on the sale of slaves. The greater part of the sums received were paid out by the executor ; most of it in a few large debts. The plaintiffs except to the rate as being too high, and especially that allowed on the money received from the master in equity. To the second report, they except on the ground that the commissioner has credited the defendant with the recovery, in the court of equity, without it being alleged or proved, that the executor has paid the amount.

The answer of the defendant, sets forth as a reason, why he *282should not pay the share of the children, the following provisions of the testator’s will :

“Item. I give and devise to my wife, Frances A. Graves, such portion of my estate, real and personal, as she would be entitled to in case of my intestacy.

“Item. I give and devise the residue of my estate and property of every sort to my children. * * *

“Item. My will is, that my whole estate shall he subject to the support and maintenance of my wife and children and the education of my children, during the widowhood of my wife, unless, in the mean time, my children shall arrive at age or marry, in either of which events, I direct that a division shall be made and the portion of such child as may arrive at age or marry, shall be allotted to such child by my executor.

“ Item. I will and direct that my children shall be educated under the direction of their mother.”

It was insisted, in the answer, that it was the intention of the testator, that the executor should retain the possession of' the property — rent out the land, and hire out the slaves, from year to year, for the benefit of the children, and on their arrival at age or marrying, allot to each a share. The cause was set for hearing upon the bill, answer, and upon the exceptions to the report, and sent to this Court.

*Bailey*and *Norwood,*for the plaintiffs.

*Kerr,*for the defendant.

PeaesoN, O. J.

There is nothing in the will to justify the construction, that the executor was to retain possession of the property, and rent out the laud, hire out the negroes, from, year to 3ear, for the benefit of the children, so as to answmr the purpose of, or be, a substitute for a testamentary guardian, lie has a mere power to allot to the children as they respectively arrive at age or marry, the portion to which they may be entitled.

The testator gives his wife such portion of the real and personal estate as she would have been entitled to. in case of his. *283intestacy ; but it is clear, from the whole scope of the- will, that he did not expect her to have it separated from the rest of his estate, except in the event of her marrying again, and his intention and wish .was, that the whole estate should go into the hands of his wife, to be managed by her for the support and maintenance of herself and the children, and for their education, which is to be under the direction of “their mother,” with whom he expected they would m'ake their home, until they respectively married or arrived at age; in which event, the executor was to see that a proper share was allotted to each.

Subsequently, events, however, made it impossible to carry this wish of the testator into effect. The debts turned out to bo more than he expected, so as to make.it expedient to sell the land. The wife had her share of the proceeds of the sale, in lieu of her dower, and it appears by the answer, she has had her portion of the slaves allotted to her, and as “the whole estate” cannot now be kept together as a home for herself and the children, the residue of the estate, to which they are entitled, must be paid over to the guardian, who may be appointed for them, and be subject to his possession and management. and not that of the executor, because no such power is conferred on him.

The exceptions to the first report, on the ground, that the commissions allowed are excessive, are sustained. Upon the amount of $6858, cash paid to him by the clerk and master, as the proceeds of the sale of land, made by the clerk and master, who, we are to presume, was allowed for selling— taking notes — making title, and collecting, and the amount of $450 cash paid in the same way as proceeds of an interest in slaves, sold by the clerk and master, 4-J- per .cent, is certainly too high. We think one per cent is enough for merely receiving the money.

There seems to have been very few debts due to the estate and of the debts due by the testator, the larger amount were in two .debts, $3000 to bank at Raleigh, $4000 to Graves, guardian, and there seems to have been little or no litigation in settling the claims of or against the testator ; besides, the *284bulk of the receipts was for the sale of slaves, and a few items run up a large figure. Upon the whole, we think 3 per cent on the receipts and disbursements a proper allowance, and one per cent on the amount received from the clerk and master. We have the less reluctance in differing with thecommission-«r in respect to the commissions allowed, because he informs us that he did not act so much on his own judgment as upon iihat of the county court, whose estimate he adopted.

The second or supplemental report must be set aside, on the ground, that the judgment recovered against the executor cannot be passed as a voucher, until it is paid, or so arranged as to discharge the estate of the testator from all further liability.

Pee 'Cueiam, Recommitted.