
    (Philadelphia,
    Feb. 10, 1823.]
    In the case of JOSEPH WALKER’S Estate.
    APPEAL
    Commission of executors fixed at three per cent, upon settling an account to the amount of 37000 dollars, which principally consisted of bank shares transferred to the legatees, though the executors were also to pay some annuities, clothe and educate children, and distribute some dividends of bank shares in charities; there being no evidence of the degree of trouble the executors had had in these respects.
    The number of the executors is not to make any difference in the rate of commission. If their trouble is unequal, a share of the commission ought to be assigned to each, proportioned to his trouble.
    Commission should be paid for services when rendered, not by anticipation for such as may be done in future.
    This was an appeal by Samuel Walker, William Blakey and Thomas Hutchinson, executors of Joseph Walker, deceased, from the decree of the Orphans’ Court of Philadelphia, County, on the settlement of their accounts. The only dispute was respecting the amount of the commissions they were entitled to. The will of Joseph Walker was proved on the 3d May, 1813. On the 24th December, 1813, the first account of the executors was filed, in which they charged a commission of five per cent, on 41,117 dollars and 15 cents; and on the 18th February, 1814, this account was confirmed in the Orphans’ Court. In August, 1818, they filed a second account, which was referred to auditors: the commission charged, was 102 dollars 37 cents, on 14,108 dollars 36 cents, which was allowed by the auditors, and no exception was taken. In April, 1818, an application was made to the Orphans’ Court, to refer the first account to auditors, which was done. The auditors confirmed the allowance of five per cent, commission, the account, after correcting errors, being reduced to little more than 37000 dollars. Exceptions were filed to their report, that the commission was too high. . The court, after hearing the exceptions, reduced the commission to three per cent.
    
      Binney for the appellant,
    contended, that the commission ought to be restored to the sum fixed by the auditors, namely, five per cent.. No particular sum is established by any law, and courts, in the adjustment of the commission, must be governed by circumstances. If the trusts imposed on the executors by this will are adverted to, five per cent will be thought a moderate compensation. In the first place, all the children of the testator’s sister Mrs. Pax-ton, who are under age, are to be clothed, and completely schooled and educated, at the expense of his estate, by his executors. Secondly, the interest on the bond and mortgage of Mahlon Paxton, is to be recovered by the executors, and paid to Mrs. Paxton, during her life. Thirdly, an annuity of 200 dollars is to be paid to Ker during life. Fourth, an annuity of 100 dollars is to be paid to Mrs. Hutchinson for life. Fifth, ten shares in the bank of Philadelphia, are to be received by the executors, and expended in charity, viz; the clothing of poor children. No additional charge will be made on paying the annuities hereafter. It is, also, to be considered, that the trouble is increased by the residence of two of the executors in Bucks County, and one, in Philadelphia.
    
    
      J. B. Ingersoll, contra.
    The compensation to executors cannot be settled by any definite rule. On large sums, where the trouble is not much, the commission should be small; and e contra, it must be increased in proportion as their trouble is increased, and the sum passing through their hands diminished. If there are several executors, and their trouble is unequal, the compensation to each should be different. In this case, Hutchinson is allowed 100 dollars extra, for travelling expenses. As to the annuities to be paid, it is uncertain how long these executors may live, to pay them, and then others will come, who may charge a commission on their payments. These executors have charged commissions on money remaining in their own hands, (about 5000 dollars,) as a fund to perform the trusts: and it is doubtful, whether the commission for paying these annuities, ought not to come out of the fnnd which is to pay them. The inventory contains almost the whole estate, which consisted of bank stock of different kinds, transferred by the executors-to the legatees without further trouble. Mrs. Paxton’s children are all now of age: and S. Walker, the acting executor, who lived in Philadelphia, has removed to a distant part-of New-York, so that he cannot do much more, and some- other person must be employed, who will be entitled to receive compensation. When the Orphans’ Court heard these exceptions, evidence was laid before them respecting the trouble which the executors had had, in administering the estate, and upon this they decided. This court has no evidence laid before them, upon which they can undertake to say, the Orphans’ Court were wrong, and, therefore, will not lightly change the sum they have allowed.
    Binney, in reply.
    Five per cent, has been the usual commission, and was allowed by the auditors, who heard these parties fully, and thought it reasonable. Part of the receipts are rents from old houses which must have required great attention: the sums received were small, and the various disbursements consist of numerous small sums. Five per cent, is a small compensation for the receipt of such rents. After correcting errors, the total commission will be but five per cent, on 37000 dollars. - There would be a peculiar hardship in reducing it now, because the first account was never questioned until after the settlement of the second account in •dugust, 1818, and this account was settled on a supposition, that the first account was closed, and therefore, less commission was charged, than would have been, had it been known that the first account was to be opened, and the commission called in question. The executors have charged travelling expenses, but nothing for the time spent in travelling. It is extremely difficult for executors to prove the exact degree of trouble they have had.
    Until some law is made, fixing compensation, the best rule is to consider five per cent, as the ordinary allowance, and not to depart from that, ■ either by exceeding o.r falling below it, unless under special circumstances.
   The opinion of the court was delivered by

Tilgjiman, C. J,

The executors of Joseph Walker have ap-. pealed from the decree of the Orphans’ Court, on the settlement of their account. The only dispute is on the subject of their commission. The executors charged five per cent, which the court reduced to three.

There were three executors, one of whom, (Samuel Walker,. brother of the testator,) resided in the city of Philadelphia, and the two others in Bucks County. A commission of five per cent, was allowed on a sum óf 37000 dollars, and something more. The amount of the commission was 1,862 dollars 10 cents, which being divided between the three executors, gave 620 dollars 70 cents to each. Having explained the principles by which the compensation of executors should be regulated, in the opinion which I have just delivered in the case of Pusey v. Clem son, it is unnecessary to repeat them now. The Orphans’ Court were of opinion, that this was a case in which the usual commission of five per cent, should be departed from, and it lies upon the appellants to show that the decree was erroneous. It appears, that the estate consisted principally of bank stock, which was transferred by the executors to the legatees of the testator, so that the executors were saved the trouble of collecting the money, and paying it over. For this kind of service, three per cent, is a very ample allowance. But several circumstances have-been mentioned, to show that the executors had considerable trouble in the discharge of their duty. They were to attend to the clothing, and education of the children of the testator’s sister, Mrs. Paxton, while in their minority. They were to pay an annuity of 200 dollars to Mrs. Paxton for her life; an annuity of 100 dollars to Mrs. Hutchinson for her life, and distribute the dividends on 10 shares in the bank of Philadelphia, in charities. Some reliance too was placed on the circumstance of there being three executors, so that the compensation was not so great, as if the whole had been given to one. I do not think, the number of the executors should make any difference in the rate of commission. The question is, what is an adequate allowance for the trouble of doing the whole business. If the trouble of the executors has been unequal, as is generally the case, they should do'justice among themselves, by assigning to each, a share of the whole allowance, proportioned,to his trouble; or, if they choose to divide it equally, it is their own concern, and they may settle it as they please. With regal’d to the clothing and education of Mrs. Paxton’s children, it may have been very great, or very little. If the executors had to attend to all the details of clothing, schooling, &c. the trouble has been great. But if the mother took all this upon herself, and the executors had only to advance, from time to time, such money as was necessary, their trouble has been little. On this subject we have been left in the dark. The executors have produced no evidence! As to the annuities and the charity, the counsel for the executors says,' that it is not intended to make any charge for the trouble of future payments, and therefore, it is reasonable, that they should be allowed a commission of five per cent, on the whole capital remaining in their hands, as a fund to answer the annuities, and the annual charity, (upwards of 5000 dollars). But to this it has been truly answered, that it is impossible to say, how long the executors may live, and in case of their death, the trouble will fall on other persons, who will expect a compensation. The safest way is, to make a reasonable allowance to the executors, for the services which they have performed, without anticipating what may be done in future. Considering all the evidence which has been laid before us, I cannot say, that the appellants haye shown sufficient cause for reversing the decree of the Orphans’ Court, and therefore, I am of opinion that it should be affirmed.

¡Judgment affirmed.

CASES IN THE . SUPREME COURT OF PENNSYLVANIA. • EASTERN DISTRICT — MARCH TERM,' 1823.  