Opinion
(January Term, 1818.)
The court have a discretionary power of allowing executors and administrators 5 per cent on the receipts and 5 per cent on the disbursements; and though they may allow less, they cannot allow more. But executors and administrators cannot be allowed commissions on a debt due to them as executors of another person.
THE executors, in settling their account with the estate, had charged a commission of 5 per cent on the amount of the receipts and expenditures. Part of the expenditure was a debt paid to W. Turner's executors, who were also the executors of T. Turner. The estate was worth only £ 3,541 11 3 3/4, and the commissions allowed by the master in his report amounted to £ 319 5 5. The case was sent here on exceptions to the report for the preceding reasons.
The court has the power of allowing 5 per cent commissions on the receipts and 5 per cent on the disbursements. The court has a discretionary power to allow less, but not more than 5 per cent.
The defendant, in this case, should not be allowed commissions on his own debt. The exception to the report for that reason must be allowed, and the judge will use his discretion upon the other point. (691)
NOTE. — See McAuslan v. Green, 1 N.C. 260; Hodges v. Armstrong, 14 N.C. 253; Walton v. Avery, 22 N.C. 405; see, also, this case, though not so fully reported, in 6 N.C. 331.