#### *EX PARTE.*-The *Commissioner in Equity for Lancaster district, in the matter of Dr. G. L. Massey, deceased, former guardian of Jane E., Mary R., Sarah A., and Wm. H. Massey.*

Where an administrator, having the fund of an infant in his hands, is appointed his guardian, he has the right, *as*administrator, to charge two and a half per cent, commissions for transferring the fund to himself as guardian, and, *as gua/i'dian,*the right to charge two and a half per cent, for receiving it.

*Before*Dargan, Ch., *at Lancaster, June,*1850.

This case came before the Court on the report of James H. Witherspoon, Commissioner, as follows:

“ Dr. G. L. Massey, late of the district, deceased, was the administrator *de bonis non*of William Massey, the father of the said wards, and afterwards was appointed by this honorable Court the guardian of their persons and estates. Dr. Massey has departed this life, and the guardianship of Jane E. & Mary R. has been committed by this Court to Thos. K. Cureton, Esq., and the guardianship of Sarah A. & Wm. H. Massey to Wm. J. Cureton, Esq. The only question made in the settlement between the administrator of the deceased guardian and the present guardian is, what commissions the deceased guardian should be allowed ; whether he should receive full commissions-as administrator, and also full commissions as guardian. The Commissioner not finding any adjudicated case on the question, and understanding that conflicting opinions are given as to the same, respectfully submits the question, and asks the direction and instruction of this honorable Court.”

Dargan, Ch. In this case I am of the opinion that the late G. L. Massey was entitled, as administrator *de bonis non,*for paying to himself, as guardian, the money of his wards, to charge two and a half per cent, on the amount thereof. And, as guardian, he was entitled to two and a half per cent, on the same sum for receiving it as guardian. He is entitled to no *14commissions at all for paying it out as guardian, for he has not lived to pay it out in that character; his legal representative pays it to the successor in the guardianship, as a common debt, for which he is not entitled to commissions.

It is so ordered and decreed.

The guardian of Jane E. and Mary It. Massey appealed, on the ground that the administrator and guardian, being the same person, was not entitled to receive two sets of commissions, one as administrator for paying to himself as guardian, and one as guardian for receiving from himself as administrator.

*J.*Williams, for appellant.

Dargan, Ch.,

delivered the opinion of the Court.

This Court is of the opinion that the circuit decree is correct. The Act of 1789, (5 Stat. 112,) which, in this particular, is a reenactment of the same provision of the Act of 1745,* gives *to*an executor or administrator two and a half per cent, on all sums which he *“*shall pay away in credits, debts, legacies, or otherwise,” during the course of his *management or administration.*This is intended as a compensation for his care, labor and hazard, in the performance of his duties in his office, or trust, as executor or administrator. When the same person is appointed guardian of the'legatee, or distributee, (as the case may be,) the fund of his ward is transferred, by operation of law, *from*him, in his character as executor or administrator, *to*him, in his new character as guardian. He is henceforward liable in the character of guardian, and is released from his liability as executor or administrator, and his sureties, which he has given in the latter character, are discharged. The payment to the guardian is a payment to the ward ; and it is a paying to the legatee, or distributee, of whom he has become the guardian, when it is *15paid by operation of law, as well as when it is by actual payment. The case is different where a new guardian is appointed and receives from his predecessor the wards’ funds. There the money is transferred from one to another in the same office, and the law allows but one commission.

When one who was an executor or administrator becomes the guardian, he assumes an entirely new trust or office, with new and different duties and responsibilities, which office may continue with all its burthens and liabilities for a long period of time.

For the performance of this trust, the law álso allows two and a half per cent, for receiving and paying out. If another person had become the guardian, the right of the guardian to charge two and a half per cent, for receiving the fund, and of the executor to charge that commission for paying that fund to the guardian, would have been undisputed. Here there is but one person, but two distinct offices, or trusts, and the law allows the same compensation in both. The principle is the same where one person performs both trusts. The appeal is dismissed and the decree affirmed.

Johnston and Wardlaw, CO., concurred.

*Appeal dismissed.*

*

 The lltli section of the Act of 1745, is not either in Grimke or in the Statutes at Large, and it is not correct, as is said in both those comjhlations, that it is reenacted by the Act of 1789, (vide 3 Stat. 668; P. L. 202 ; 5 Stat. 112.) The Act of 1745 gives commissions to “ every guardian or trustee,” as well as to executors and administrators; the Act of 1789 is confined to executors and administrators ; see 1 Brev. Dig. 392; *Muckenfuss*vs. *Heath,*(1 Hill Ch. 183.) E.