Laurens, *Washington District.*

Heard by Chancellor Desaussure.

#### Henry Ruff and others, *vs.*the Executors of J. A. Summers.

CASE BXXV,

The court cannot allow executors commissions or any other charge for the delivery of specific legac.es to the legatees, whatever trouble may have attended the service. The statute is explicit that executors are not to be allowed any charge for any services, but a percentage on money received, and money paid away. If more is claimed by the executor for extra services, the statute directs h.m to make up ,m ,s.sue mid try it before a jury. The statute is too explicit to admit of any other mode.

ÍN this case tlie testator, Mr. I. A Summers, being possessed of a very considerable estate, disposed of the same, by his last will and testament, chiefly in specific legacies; and he imposed the duty on bis executors of dividing his estate, according to bis will, and supplying the loss of any of the specific legacies, by the purchase of other property in its place. This has accordingly been done, and the estate has been settled, and tlm legacies delivered over to the persons entitled to them,

JUNE, 1814.

*530There were few or no debts *;*yet the whole personal estate was appraised; and the executors have charged commissions of five per cent, on the amount of monies actually received and paid away; and of two and a half per cent, on the amount of specific legacies delivered over to the legatees, and they have deducted these commissions out of the money which was in their hands.

The object of this suit is to recover from the exec if/ tors the amount of the commissions charged on the de-> livery of the specific legacies, and to oblige them to distribute the same among the complainants, who are the children and legatees of the late Mr. Summers the testator. ,

The complainants insist, that the executors are entitled to no commissions, but what are allowed by law, and that the law provides,,for the payment of no services, but what consist in the receiving and paying away monies of the estate, in debts or pecuniary legacies; and expressly declares, that if executors think themselves entitled to greater compensation than the law allows, they shall apply to the court of Common Fleas to have their claims decided upon by a jury.

The defendants insist, that though the compensation provided by law, extends only to the commissions on the money received and paid away, on behalf of the estate, yet there are other services in the management of an estate, and in the delivery over of specific legacies, which justly entitle executors to compensation. And that the law directing an application to the Court of Common Fleas, and a jury, does not apply to the case of specific legacies, so as to bar executors from coming to this court for relief, or from defending themselves in this court when they have made deductions of reasonable commissions for extra services.

It has always appeared to me that the ground for compensation to executors being made by law to rest solely on the foundation of money received and paid away, was not a perfectly reasonable rule; inasmuch as there is often great service performed by executors, when only small sums of money are received and paid *531pway. But l do apprehend the law to be dear on that point; and I do not feel myself at liberty to depart from it; I do not sit here to make law, but to administer *it;*and the judgment of every individual judge must yield to the public will, distinctly or intelligibly expressed, by existing laws. And I apprehend the act of the legislature, prescribing a particular mode of trial on the application of executors, does apply to all cases which can arise. I feel, therefore, that 1 am precluded from granting extra compensation. If I were entirely at liberty on this subject, the leaning of my mind would be to grant s some moderate compensation, for delivering over specific legacies; though perhaps I should pause even on that, for the general usage as far as 1 have known it, has been against the claim 5 and the general usage and construction is seldom without some reasonable foundation. Upon the whole, I am of opinion, that the executors were not entitled, as the law stands, to deduct out of the funds of the estate of Mr. Summers, any sum for compensation for the delivery of the- specific legacies to the legatees ; and that they must account for the sum deducted by them, that it may be distributed among the complainants.

It is therefore ordered and decreed, that the defendants do.pay over to the complainants the sum retained by them for commissions on the delivery of the specific legacies to the legatees, to which the executors are not legally entitled, together with interest thereon, from the settlement of the estate, to be distributed according to the respective rights of the children of the late Mr. Summers,

(Signed) HeNiiy W. Busatjssube.

From this decree the defendants appealed, and gave notice that they would move at the next sitting of the Court of Appeals at Columbia, to reverse the aforesaid decree, on the following grounds, to wit,

First, — Because the court was not bound by the act of the 25th of May, 1745, nor was it thereby precluded from exercising a discretionary power in affixing the compensation, which was proper and reasonable to havt?, *532been allowed the defendants in this particular case, prov^et^ ^ did not exceed 5 per cent.

' Second, — Admitting tire Court was bound by the act a^ove alluded to, yet all the facts directed by that act to be tried by a jury, were admitted before the court, originally brought thereby the complainants themselves, who elected the tribunal before which they would investigate the righteousness of their demand: the. court ought, therefore, to have done what a jury would have been bound to do upon similar or the same evidence before them.

Third, — Because, if at any stage of the case, the court had discovered that the intervention of a court of law, or the verdict of a jury was necessary to the complete justice of the case, the court ought then to have suspended its decree and directed an issue to have beep made up and tried, and havo modelled its decree in conformity to. the verdict of the jury, on that point, or those points directed to be tried.*

Fourth, — Because the court ought not to have decreed the payment of costs out of the pockets of the defendants.

Fifth, — .Because the court ought not to have decreed tli'' payment of interest upon the amount retained. Caldwell, defend ants’ solicitor.

The anneal was heard by the judges Besaussnre, Gad Sard, james and Thompson, who, after argument, unanimously affirmed the decree of the Circuit Court.

*

**No issue was asked for by the counsel, at the hearing in the Circuit Court of Equity.