#### SAMUEL B. SPRUILL et uxor et al. *vs.*HENRY J. CANNON Adm’r of ROBERT CANNON et al.

An administrator is not entitled to commissions on the value of specific articles; though for his trouble and responsibility in respect to them, it is proper to have regard in estimating a proper commission on the receipts properly so called, that is to say, monies.

If it appear that an administrator has not used the funds of the estate, and has not made any profit from them, he is not chargeable with interest, if the funds were not wantonly kept' idle, but wore kept for the purposes of the trust; and they shall be taken to have been so kept, when it appears that a bill was filed for the settlement of the estate, and the funds were kept ready, to be paid over to the next of kin.

An administrator, who is also one of the next of kin, is not chargeable with interest on a sum not exceeding his share of the estate, loaned out after he was ready to settle the estate and kept a large amount on hand to be paid over to the other next of kin.

The court will so far rely upon the judgment of the master as to the proper ratp of commission to be allowed an administrator, as to make it a general rule not to depart from it, except in a clear case of mistake by the master.

The bill was filed for an account of the personal estate of Robert Cannon, deceased, of which his son, the defendant, Henry J. Cannon, was the administrator. The intestate died in July, 1833, and the administration was taken in August following. In February, 1834, the widow intermarried with the plaintiff, Samuel B. Spruill, and in August following, he *401filed this bill against the administrator, and against the other five children o'f the intestate, who were all infants. At the same time, a contest occurred between the plaintiff, S. B. Spruill and the defendant, H. J. Cannon, for the guardianship of the infants; which terminated in October, 1836, by the appointment, in the Superior Court, of the plaintiff as the guardian of some of them, and of the defendant for the others; and the bill was amended by making the wards of Mr. Spruill also plaintiffs.

Upon a reference to take the usual accounts, the commis-missioner found the value of the personal estate that had come to the administrator’s hands, to be $49,652:10 cts., and the disbursements and bharges to be $3,783:09 cents, leaving a balance for distribution of $45,869:01 cent. In the accounts rendered by the administrator, he exhibited minute entries of all the interest received by him on the debts contracted in the intestate’s time, and also on the notes taken by himself for sales; which together amounted to a considerable sum. As he collected money in 1833 and in 1834, until the second marriage of the widow, he loaned the same out, to the amount of $7,500, apd accounted also for the interest accrued thereon, until the principal was repaid, several years afterwards. In 1835 and 1836, the administrator collected considerable sums from time to time, and placed the shme in Bank to his credit as administrator; and the amount there accumulated until in October, 1836, it reached the sum of $18,831:10 cts. The administrator made various payments to the plaintiff, Spruill, on account of his wife’s distributive share; and immediately after Mr. Spruill was appointed the guardian of some of the children, he paid over to him the sum of $10,-500 on account of their shares; and continued to make payments afterwards, as other funds were got in. During these transactions the defendant, H. J. Cannon, loaned out certain sums, amounting in the whole to less than the distributive share which he was entitled to retain; and for the interest on those last loans he did not account. The administrator put in his affidavit, in which he stated that he had fully set forth in his accounts, all other sums received/or interest, except those just mentioned; and that he did not account for those, *402because he considered them to belong to himself. The comm*ss^oner reported that, from various calculations made by him, he was satisfied the administrator had correctly accounted for all the interest received by him; and that he ought not to have put out on loan the sums which he collected in 1834, and afterwards; but that he properly kept the amount in deposit, to answer the demands of the next of kin. .

The intestate left some small articles of jewelry, and a few slaves, of the value together of $2,536:00, which were divided and delivered over specifically to the next of kin. The Master allowed the administrator a commission of 3 per cent on the receipts, including therein that sum of $2,536:00.

The plaintiffs excepted to the report, because the Master allowed the commission on the value of the slaves and jewelry; and because he did not charge the administrator with the interest made by him, and with what he might have made, while the money laid in Bank.

*Badger and W. H. Haywood*for the plaintiffs.

*Iredell*for the defendants.

Ruffin, Chief Justice,

after stating the case as above, proceeded as follows: We think the former of the plaintiff’s exceptions is well founded. It is against the course of the Court to allow a commission on the value of specific articles. For trouble and responsibility in respect to them, it is usual to have regard in estimating a proper commission on the receipts, properly so called, that is to say, moneys. If the Master had, in this case, therefore, increased the rate of commission on that account, the Court would not have interfered. But we should be reluctant to establish a precedent for a commission *eo*nomine, for dividing slaves and family jewels among an intestate’s family; as it might lead to much abuse.

We concur in the views taken by the commissioner, of the question of interest. The case is fully within the rules hitherto laid down by the Court. *Arnett*v. Linney, 1 Dev. Eq. *369.*— Peyton v. *Smith,*Ante 325. It is clear the administrator has not used the fund, and that no actual profit was made from it, except such portion as properly belonged to him in his own right. As it has been kept on hand — and *403upon that point there can be no dispute, as the bank books shew it was there — the only question is, whether it was wantonly kept idle, or was kept for the purposes of the trust. We think it would have been imprudent, in a high degree, in the administrator, to have loaned the money, when a suit was actually pending respecting it, and he could not tell at what moment a guardian would have authority to require payment of the shares of the infants. Besides, the object of keeping the fund in Bank is made fully to appear, by the fact that the administrator paid it over as soon as fie knew to whom to make the payment, that is to say, immediately upon the appointment of the guardian. It was kept as'the property of the next of kin, ready to be delivered to them whenever the administrator could be legally warranted so to do. As to the sums put at interest on his own account, our opinion is, that the administrator, who was also one of the next of kin, was not obliged to lock up his own share in Bank, because the other next of kin were infants. If he used no more than belonged to him in his own right, or as guardian, he did the others no wrong thereby; and, therefore, ought not to account for that interest, as a part of the testator’s estate in the administrator’s hands. So that the question really is, whether the administrator failed to make profits from that part of the money which belonged to the plaintiffs, from wrong or right motives; and upon that question we have just said, that he properly, under the circumstances, kept it ready for payment. This exception, therefore, is disallowed.

The defendant has also excepted, because the'commissions allowed are not adequate, and because there is no commission allowed for disbursements for the children up to the appointment of guardians. As to the last, we suppose the commissioner considered the trouble of the administration touching those matters, in making the other allowances; and, therefore, we are not inclined to alter his decision, when it does not appear that any application was made to him for this commission specifically. ’The Court must also so far rely upon the judgment of the Master, as to the proper rate of commission, as to make it a general rule not to depart from it, except in a clear case of mistake by the Master. He has the whole subject before him, and can better estimate than we can *404the time and trouble devoted to an administration, and the responsibility incurred. We see no reason here for not abiding by the report in this respect."

The court will not decide an exception relating to a matter solely between two of the defendants; particularly where the exception is slated to have been taken to avoid a conclusion] between them by the report.

As to the defendant’s third exception, we presume the Master accidentally overlooked the sum mentioned therein, as we see no reason why the defendant should not have thereon the same rate of commission allowed on the other rents of the real estate; to wit, 2 1-2 *per cent.*

The Court does not decide the sixth exception of the administrator, because it relates to a matter solely between two of the defendants, whom we do not think proper to conclude in this suit. Indeed, the object of the exception was stated by counsel to be, simply to avoid a conclusion between those defendants by the report.

Pee Curiam. Decree accordingly.