#### Wm. Deas, *and others, vs.*Charles Spann.

*The distributees of an estate having purchased property at the executor's sales and given bonds, the executor was held entitled to commissions on the amount of the bonds delivered to the distributees respectively, and set. off against their claims for shares of the estate.*

The complainants, distributees of the estate of which defendant was executor, purchased part of the property at the sales of the personal' estate made by the executor, and gave bonds and security. On a settlement with the distributees,, the executor delivered to them respectively the bonds thus taken; setting off the amount against their claims for portions of the estate. The commissioner, to whom the accounts were referred, reported against the defendant’s claim to *commissions*on the amount of. the bonds thus' delivered and set off. In his report he also charged the defendant with the gross amount of the debts due to the estate, some of which had not beei^collected. On these points the report was excepted to.

Chancellor Desaussure.

The commis~ioncr has reported fully on this case, and defendant has filed tvi'o exceptions: first, because the repo~rt does not allow commissions upon the amount of the purchases made by the heirs at the sale of the estate, for which defendant took bond and security, and paid the amount coming to each heir, and is theref&e entitled to commissions. The rule settled by. the court in Summers' case, (a) and others, is a plain one; that where executors or administrators deliver to hei~s slaves or other pro~ perty, they are not entitled to commissions; but when the sale of the estate is on credit, and the executor takes bond and security, and is to collect the money and pay over the same to the heirs, in proportion to their respective rights, he is entitled in my opinion to charge commissions. This exception js therefore snstained and the account must be amended. The recond exception is, because the report charges the executor with all the debts; whereas some are not collected, and when the costs of collection are not brought into the account. The ?ulc on this subject is alsQ plain; the executor is not chargeable *177with the debts, unless he has received the money, or unless the debts have been lost by his negligence in collecting them. When it is intended to charge executors on this ground, the neglect must be shewn to the court to judge in each particular case, which has not been done in this case. The executor is also entitled to the proper and reasonable fees and costs of collection. This exception must therefore be sustained.

*Jrlaynesworth,*for appellants.

*S. D. Miller,*contra.

The complainant excepts to the report so for as it allows commissions for negroes delivered over, and notes transferred in payment — to the heirs I suppose is intended. Certainly where the executor merely delivers slaves to the heirs, or transfers notes to them, he is not entitled to commissions. This exception is therefore sustained so far as the facts warrant it.

The complainants appealed on the ground that the decree was erroneous in allowing commissions on the bonds delivered to the distributees. The decree was affirmed by the whole court.

RULE. *Columbia, May 4th*1824.

Not more than two counsel shall be heard oa uadi side in any cause argued in the Court of Appeals.

HENRY W. DESAUSSURE,

THEO. GAILLARD,

THO. WAT1ES,

W. THOMPSON,

WM. D. JAMES,

(a)

 4, Eq. Rep. 529.