#### *R. G. Norton, ordinary,*vs. *Legatees and Creditors of S. R. Gillison, deceased, et al.*

Uader tlie 7th. section of the ordinary’s Act of 1839, the ordinary is entitled *“*to fire per cent oí the value -of the estate,” taken charge of hy him as derelict, only Trien he has performed the duties prescribed in that section. Where, instead of selling the whole estate, paying the creditors, and depositing the net balance in bank, he applied to the Court for instructions, and, by order of the Court, sold so much of the estate only aá was necessary to pay the debts;— *held,*that he was entitled to five per cent [of so much of the estate as he had sold and no more.

Where the ordinary takes charge of, and administers the estate of a testator, under the Act of 1846, he is not entitled *“*to five per cent of the value of the estate he can claim only the commissions of an executor'under the Act of 1789.

*214*Before*Dunkin, CL, *at*Beaufort, February, 1851.

Dunkin, Cb. Samuel R. Gillison left a will devising and bequeathing his estate to his widow and children, in the proportions and with the limitations therein specified. Ilis son, Thomas S. Gillison, and the Hon. W. E. Colcock, were appointed executors, the former of whom qualified and the latter renounced.

Thomas S. Gillison has since died intestate. The ordinary has taken charge of both estates as derelict.

The personalty of Sami. R. Gillison was appraised at one hundred and eight thousand three hundred and ten dollars sixty-six cents. The real estate consisted of several plantations, the value of which does not appear. Among other provisions of the will was the following, viz : *“*To my son Thomas, I give, devise and bequeath' an equal share of my negroes, &c.; also, the sum of five thousand dollars, if so much be necessary, to be raised (if no cash is on hand at my death) by keeping all my estate together, except what is given to my wife, until that sum can be realised from the planting income. To have and to hold the said negroes, other personal property and money, on the following trusts, that is to say: — In trust to invest the said money, if so much be necessary, in the purchase of a plantation, to be held and managed by him, &c., in trust for the sole and separate use of my daughter, Adela, (Mrs. Lartigue,) and the issue of her present or any future marriage.”

The testator died in 1847. At the last sittings of this Court, it seems that an order was made, that the ordinary should sell so much of the testator’s estate as would pay his debts and raise the sum of five thousand dollars bequeathed, in trust, for Mrs. Lartigue. The ordinary has reported a sale of personalty amounting to $27,008, and of realty to the amount of $785, altogether $27,793. From this sum he has deducted auctioneer’s commissioners, amounting to $694 83, and he claims to deduct a further commission of five per cent on the whole value of the testator’s personal estate, $108,310 66, and also on so much of *215tbe real estate as be bad sold, tbis five per cent amounting, by bis statement, to tbe sum of $5,447 78. It will thus be perceived, that from tbe sales made under tbe order -of tbis Court, amounting to $27,793, a deduction for commissions is claimed of $6,144 61, nearly one-fourth of tbe sales, and tbe counsel for the ordinary, in bis argument, insisted that tbe claims for commissions bad been considerably understated ; and, if tbe argument is sound, tbe Court is of opinion that tbe deduction is legitimate.

It is said, that tbe Act of 1889, allows tbe ordinary, as a com-jfensation, five per cent of tbe value of tbe estate ; that tbe Act of 1846 is only amendatory of tbe Act of 1839, and that tbe game commission should be allowed. In tbe case of *ex parte*R. Gr. Norton, ordinary, in tbe matter of Mary A. Roberts’s estate, (a)*216to which I refer for my views of these Acts, I have said that the Legislature never contemplated that such estates as this would be derelict. If Samuel R. Gillison had died intestate, the ordinary, by the Act of 1839, would take charge of his estate, sell the whole of it in six months, deposit the proceeds, probably, amounting to one hundred and forty thousand dollars, in bank, and for this service claim a commission of seven thousand dollars, (not to mention the three thousand five hundred dollars which he now insists to deduct for *auctioneer’s commissions).*He has no judgment to exercise, no responsibility to assume. He has not even the trouble to look out for a purchaser. He receives seven thousand dollars for doing what the best broker in Charleston would, probably, gladly do for one-seventh the amount.

But I think the Act of 1846 was only intended to apply where the provisions of the will were simple. In order to administer the estate according to the provisions of the will, the ordinary is, by that Act, vested with all the powers, and subject to the same liabilities as an executor.

No provision is made for commissions where the bulk of the *217estate, as in this ease* consists of lands and negroes disposed of by the will — no executor was ever supposed entitled to commissions on assenting to the legacies, or on delivering over the ne-groes, &c. Yet the ordinary claims five per cent, on the appraised value of the entire personal estate. When the provisions of the will are complex, and the ordinary finds it necessary to apply to the Court of Equity, I think, as in the case of an administrator asking aid in the administration of assets, the Court having all the parties before it, should take charge and administer the funds, or cause distribution to be made according to its decree.

But the Act of 1839, in allowing five per cent on the value of the estate, contemplates that the whole estate will be sold by the ordinary, and after payment of debts, the proceeds be deposited in bank. It is a commission on the sale and payment of the fund. I have not before me the amount of the disbursements in debts, &c., to be made by the ordinary. But I think the five per cent, must be allowed only on the' moneys actually received and disbursed by him, and that this must cover all charges for auctioneer’s commissions, &c.

The next question relates to the provision for Mrs. Lartigue. It is not a bequest of five thousand dollars, but a direction that the trustee should receive so much of that sum as should be necessary for the purchase of a plantation, to be held “ for her use,” or that entire sum, “if so much be necessary,” and, if no cash is on hand, the testator directs “ his estate to be kept together until that sum can be realised from the planting income.” If the directions of the testator had been pursued, and at the expiration of two or three years five thousand dollars had been realised from the planting income, and invested by the trustees in a plantation of that value, it would seem that the object was accomplished and the provision satisfied. If the testator had directed that two hundred dollars, if so much be necessary, be invested in the purchase of a gold watch and trinkets for his daughter, this is equivalent to a bequest of a gold watch, &c., of about that value. The testator seems himself to have contemplated that there might be delay in *218raising the necessary amount. He directs his “ estate to be kept together until *that sum*can be realised from the planting income.” I adopt the conclusion (but not without hesitation) that the exception must be overruled.

It is ordered and decreed, that the debts of the testator, as reported, be paid, and that the account be affirmed or reformed, according to the principles herein stated.

The complainant appealed, on the ground:

Because he says that he is entitled to five per cent, commissions upon the whole personalty of the estates, and to five per cent, upon so much of the real estate]]of Thomas S. Gillison, as he sold under the order of the Court.

And the defendants, Isadore Lartigue and wife, also appealed :

Because, they say, they are entitled to interest on the legacy of $5,000 bequeathed to Mrs. Lartigue by the will of Samuel B. Gillison, and his Honor erred in deciding otherwise.

*Hutson,*for complainant.

*Treville, JTiclcling,*for defendants.

(a)

 In the case *ex parte Norton,*the circuit decree is as follows:

Dtjnkin, Ch. The petition states that Mary A. Roberts died intestate, on the eighth day of October, 1850; that the intestate owned considerable personal estate, and, among the rest, eighteen slaves, appraised at five thousand six hundred dollars, besides perishable property, appraised at ten hundred and fifty-five dollars ; that on the eleventh day of October, the petitioner took possession of the estate as derelict, under the provisions of the Act of 1839; that he has sold the perishable property for eleven hundred and forty dollars — he believes this sum will be more than sufficient to pay all the debts of the intestate. The petitioner further states, that the six months during which he is required by the Act to keep the estate together, will not expire until three days after the sale day in April. The prayer of the petition is, that permission may be granted to sell the estate on the sale day in April, and that the petitioner may be permitted, after due notice, *to make distribution of the proceeds of the sale amongst the parties entitled thereto.*

The Act of 1839 provides that where any estate shall be left derelict, the ordinary shall collect and take charge of the same for the period of six months, after which time, if administration shall not be sooner applied for, he shall sell the same, after due public notice, either for cash, or upon a credit of six months, and after payment of the debts of the deceased, shall deposit in the Bank of the State of South Carolina, or in some one of the branch.es, the net proceeds, to the account of the estate to which it belongs, and shall file in the office of the Clerk of the Common Pleas of his district, a certificate of such deposit; and to the end that he may so collect such estate and effects, he shall have power to institute and maintain all necessary legal proceedings; and, for the services aforesaid, he shall be entitled to five per cent of the value of the estate.

It is quite manifest that the Legislature contemplated that but few estates, and those of inconsiderable amount would fall under the charge of the ordinary as derelict: it is manifest, among other things, from the small amount of the ordinary’s bond, and the liberal amount of commissions allowed. The experience of a very few years, however, has exhibited an entirely different result from that which was anticipated. The ordinary of Beaufort district gives bond in ten thousand dollars, according to the first section of the Act of 1839. A single estate of which he has charge as derelict, was sold for upwards of one hundred and twenty thousand dollars, on which he is supposed to be entitled to a commission of *216five per cent. In several of the districts, a large portion of the estates are becoming derelict. Mrs. Roberts died intestate on the 8th October. Three days after-wards, her estate was in the hands of the ordinary as derelict.

But the Legislature have vested no authority in the ordinary to make distribution of an intestate’s estate. They have prescribed certain duties which he is to perform, and Ms functions then cease. The Act directs that, after the sale of the estate, he shall deposit the proceeds in bank, and file a certificate of deposit with the Clerk of the Common Pleas.

, what authority has the Court of Equity to declare that the Ordinary shall disregard these plain provisions of the Act ? Even where a will was left, directing the testator’s estate to be divided among his widow and children, and the estate was in charge of the ordinary as derelict, he was obliged, under the Act of 1839, to sell the whole estate and deposit the proceeds in bank. To provide for this evil, the Act of 1816 was passed. The Court had no power to interfere. But the Act of 1846 is restricted to the particular case and it is well known, in the history of the legislation on this subject, that an amendment to extend the provision to cases of intestacy was voted down almost unanimously.

It is very apparent that the legislation, on the subject of derelict estates, requires material revision, bnt any irregular interference on the part of the Court will only tend to aggravate the evil.

In the petition before the Court, the ordinary requires no direction. The provisions of the Act are plain and simple, and he has only to pursue them. I think the petition must be dismissed; but I recommend that an appeal be taken, in order that the construction of the Act of 1839 may he authoritatively settled.

The opinion of the Court was delivered by

WáRBLaw, Ch.

After partial administration of the estate of Samuel R. Gillison, deceased, under his will, the executor, Thomas S. Gillison, died intestate; and the plaintiff, as ordinary, took charge of the estates of testator and executor, as derelict. The appeal on the part of the plaintiff involves the extent of compensation to which an ordinary is entitled, in charge of derelict estates of a testator and of an intestate. It is clear that a public officer can claim no other compensation for the discharge of duties imposed upon him by the Legislature, than such as the Legislature chooses to allow. Admitting this principle, the counsel for the plaintiff insists, in argument, that under our Acts of Assembly, an ordinary in charge of derelict estates is entitled to *five per cent,*of the value of the whole estates; although, in this particular case, the ordinary may have waived, by the pleadings, his title to *five per cent,*on the realty not sold.

*219The 7th' section of the ordinary’s Act of 1839 (11 Stat. 40) provides, that, “ In case any estate shall be left derelict, either from partial administration by an executor or administrator, or by reason of no application for letters of administration or letters testamentary, or otherwise, the' ordinary of the district, who might be entitled to grant such letters, shall collect and take charge of the same for the period of six months; after which time, if administration be not sooner applied for, he shall sell the same, after due public notice, either for cash or upon a credit of six months, and after payment of the debts of said deceased, shall deposit, 'in the Bank of the State of South Carolina, or in some one of its Branches, the net proceeds, .to the account of the estate to which it belongs; and shall file, in the office of the clerk of Common Pleas of his district, a certificate of such deposit; and to the end that he may so collect such estate and effects, he shall have power to institute and maintain all necessary legal proceedings; and for the services aforesaid, he shall be entitled to five per cent, of the value of the estate.”

The Act of 1846 (11 Stat. 357) authorizes the ordinary to sell the perishable property and effects of derelict estates, without retaining possession of such perishable property for six months before sale; and further provides, that if the deceased owner of a derelict estate has left a will disposing of his estate, the ordinary in charge of such estate shall administer the same according to the provisions of such will, and for that purpose, that he “ shall be invested with all the powers and authorities and be subject to all the liabilities, which may be necessary for carrying such will into effect, in the same manner as if he had been duly nominated and appointed executor thereof.”

By the express terms of the Act of 1835, which originally applied to the derelict estates of testators as well as of intestates, the compensation to the ordinary follows the discharge of prescribed functions. He is required to take charge of a derelict estate for six months; then, to sell the same, pay the debts of the deceased;, and deposit the balance of the proceeds in Bank;” *220*u and for the services*aforesaid,” be becomes entitled to five per cent, of tbe value of tbe estate. Tbe reward cannot be claimed where tbe services are not rendered. Tbe compensation to tbe ordinary allowed by tbe Act, is analagous to tbe commissions of an executor. For receiving tbe proceeds of sale and paying tbe same over to creditors or into tbe Bank, tbe ordinary is allowed to claim five per cent, of tbe estate. In tbe present case, so far as respects *the*estate of Tbomas S. Grillison, wbo died intestate, tbe ordinary, instead of selling tbe whole estate, paying tbe creditors, and depositing -tbe net balance in Bank, bas filed bis bill in this Court, for instructions, making tbe distributee of tbe estate a party, and by tbe order of tbe Court, be bas sold so much of tbe estate only as was necessary to satisfy creditors. He bas relieved bimself from responsibility, by voluntarily submitting tbe administration of tbe estate to tbis Court. Under sucb circumstances, wo are of opinion tbat bo is entitled to five per cent, of so much of tbe estate as be bas sold and no more.

The claim of tbe ordinary, however, is principally connected with tbe estate of tbe testator, Samuel E. Grillison. His compensation as to this estate depends upon the construction of tbe Act of 1846. Tbat Act is substantially a repeal of tbe Act of 1889, as to tbe services and compensation of tbe ordinary, where tbe deceased owner of tbe derelict estate bas left a will. Tbe ordinary, instead of pursuing a fixed routine of duties for which a fixed compensation is given, is directed to execute tbe will of tbe deceased, with all tbe powers and liabilities of an executor named by tbe testator, without any express mention of compensation. His functions must vary according to tbe caprice of testators in tbe dispositions of their estates, and it appears reasonable that bis reward should vary according to bis services. He is to be regarded as a statutory executor, with tbe responsibilities and emoluments of an ordinary executor. If tbe estate be small and tbe provisions of tbe will be simple, bis trouble and bis remuneration will be small; if tbe provisions of tbe will be complicated, be may apply, as any other executor, to tbis Court for instruction; and if bis commissions be *221inadequate compensation for extraordinary services, be may make up an issue in the Common Pleas, as other executors, for extraordinary compensation.

We are of opinion, that by the fair intendment of the Act of 1846, the ordinary, when invested with the powers and liabilities of an executor, is entitled to claim the commissions of an executor under the Act of 1789 ; but that the pretension is groundless for a compensation of five per cent, on the value of the estate, which is not received and disbursed. It was never supposed that an ordinary executor was entitled to commissions on the value of the estate, real or personal, delivered to specific legatees.

There is no appeal from so much of the Chancellor’s decree as refuses to allow to the ordinary the auctioneer’s commissions which were claimed; but to guard against misconception, it is proper to mention, that the services as auctioneer were rendered by the plaintiff himself, or by some member of a mercantile firm of which he was a partner.

The remaining question in' this case is upon the appeal of the defendants, Isadore Lartigue and wife, as to interest upon the legacy of $5,000 to Mrs. Lartigue.

It is considered safer to reserve the decision upon this point until we have fuller information upon the facts. Granting that the bequest in trust for Mrs. L. is a general, pecuniary legacy, and by the general rule entitled to interest from a year after testator’s death, still it is suggested to us, that circumstances controlling the general rule as to interest, may exist as to this legacy, at least as to a portion of the arrears. It is said, that the sum of this legacy was some time ago set aside in the administration of this ‘estate, under the direction of this Court; and that this sum has been since unproductive. This may bear upon the interest for a time. It may also be desirable to know when the devisees of testator entered upon the enjoyment of their lands. Inquiry and report by the commissioner will bring out the facts necessary to the final decision of the question.

It is ordered and decreed, that the circuit decree be affirmed as *222to the compensation of the ordinary, and that the appeal of the plaintiff be dismissed.

It is further ordered, that the cause be remanded to the circuit, Court, so far as the claim of Isadore Lartigue and wife for interest upon the legacy to Mrs. Lartigue is concerned; and that the commissioner of this Court for Beaufort district be directed to inquire and report as to all the facts connected with said legacy: with leave to report any special matter.

JOHNSTON, DüNKIN and DabgaN, CC., concurred.