
    [Philadelphia,
    Feb, 10, 1823.]
    PUSEY, Appellant against CLEMSON, Appellee.
    IN ERROR.
    If the creditor makes his debtor executor, the debt is still assets, so far as respects creditors of the testator, or a residuary legatee.
    No rule can be established as to the amount of the commissions of executors, that will suit every case. In common cases; five per cent, has been fixed as the standard, by common opinion and understanding; but in the discretion of the couxt, it may exceed, or be less than that.
    Where the value of the estate was near 100,000 dollars, and the executors had little trouble or hazard, the care of lawsuits being intrusted to counsel, who were paid by the estate, and there being more than sufficient to pay debts, and the receipts by the executors were in large sums of money, the court held three per cent, a reasonable allowance.
    If an executor make a compromise of a debt, which is intended for the benefit of the estate, and has actually been for its benefit, he ought not to be charged with the debt.
    Twelve dollars allowed to executors, as a fee paid to an attorney for stating and preparing their accounts, but nothing beyond that for advice as to the mode of stating it.
    This was an appeal by Joseph Pusey, from the Orphans’ Court of the city and county of Philadelphia, on the settlement of the account of Joseph Clemson, one of the executors of his brother James Clemson, deceased. James Clemson, by his will, made the 20th December, 1813, appointed four executors; namely, his brother Joseph Clemson, the appellee, Ellis Davis, Charles Bird, and Jacob S. Wain. Davis and Bird, renounced the executorship x Joseph Clemson and Jacob S. Wain acted, and settled separate accounts. Joseph Pusey, the appellant, was one of eight persons who were the residuary devisees of the testator.
    On the appeal to this court, the appellant filed fourteen exceptions to the accounts settled by the appellee: but in the course of the argument, the 6th, 8th, 9th, 11th and 13th, were relinquished, and the remainder insisted upon, viz:
    1st. The said executor has not charged himself with the sum of 500 dollars, with interest thereon, being the amount of a draft of said Joseph Clemson, dated 16th December, 1809, held by the testator at the time of his death, and due to him by the said Joseph Clemson.
    
    2d. The said executor has charged the said estate with commissions at five per cent, on the sum of 10,690 dollars 49 cents; whereas, the said commissions should not have been charged at so high a rate.
    3d. The said executor has charged the said estate with commissions at five per cent, on the sum of 56,138 dollars 89 cents, received by Jacob S. Wain, his co-executor, amounting to 2,806 dollars 94 cents, of which the said Joseph Clemson claims one half for himself. Whereas the services, if any, were performed by the said Jacob S. Wain, who has charged the said estate with the said sum of 2,806 dollars 94 cents, in the settlement of his account, and claims the said sum as belonging to himself.
    4th. The said executor has charged the estate in his account, No. 2, with commissions at five per cent, on 7,444 dollars 36 cents; being not only too high a rate of per centage, but also, twice charged on that sum ; the executor having charged a commission on it in his account, No. 1.
    5th. .The said executor has charged the estate with too high commissions on the sum of 9,625 dollars, being the amount of sale of real estate.
    7th. The said executor has not chai’ged himself with interest on monies remaining in his hands, but has charged the estate in his account, No. 3, with interest on a certain legacy, left to him, as alleged by his father.
    10th. The said executor has not charged himself with the amount of a mortgage for 900 dollars and interest, given by Flag Bacon and wife, to Joseph L. Dickerson, the amount of which mortgage with interest, was received by the executor. Said mortgage is stated in the inventory, filed by Jacob S. Wain, one of the executors, as belonging to the estate.
    12th. The said executor has not accounted for the proceeds of five shares in the Harrisburh Bridge Company, and one share in the Centre Turnpike Company, and one share in the Susquehan-nah and York Borough, and one bond of J. Greenleaf, for 1,248 dollars 70 cents, with interest, and one note of Daniel Buckley, for 500 dollars, all of which, are stated by the executor, as being in. his possession.
    14th. The appellant objects to all sums charged by the executor for stating his account, as his commissions are intended as a full compensation for performing this and other services as executor.
    
      Ewing & J. 8. Smith for the appellant.
    1st exception. The executor has not charged himself with the sum of 500 dollars, and interest, due to the estate, because he contends, that his appointment as executor, operated as an extinguishment of the debt. But though this be so at law, equity will consider him as a trustee for the residuary legatee, or even for the next of kin, where a legacy is given to the executor, 3 Gwillim’s Bac. Jib. 11. 12. Executors and Administrators, Jl. 10. There is, therefore, no extinguishment of the debt in the present case, but he is bound to account for it to'the residuary legatee.
    2d and 3d exceptions. The executor charges the estate with five per cent, commission, improperly in various instances.
    It was here stated by the counsel for the appellee, that it was the intent of Mr. Wain, to charge but one half of the five per cent., so that the two executors might divide equally, between them, the commission on all monies received by them.
    
      Ewing and J. Smith, then contended under this head, that five per cent, was too high a charge: it would make the commissions of the executors amount to the sum of 5,655 dollars 19 cents, besides what will accrue on debts yet to be collected: altogether, exceeding 6000 dollars. This is an unreasonable compensation for their services, and burdensome on the estate. There is no settled rule as to the commissions to be allowed to an executor: it must be governed by the amount of the estate, and the labour, and the responsibility incurred. In this estate there was no risk run: the estate was more than sufficient to pay- all the debts. There was comparatively little trouble: there were 4000 dollars in bank, and in several suits,large sums of money were recovered. The executor has charged the estate besides, with expenses in going from home on business concerning it. Some of the property was sold at Long Island by an administrator, who recovered the money, and paid it over to the attorney for the residuary devisees. The amount of commission not being fixed by any rule, rests on the sound discretion of the court, and we contend, that too large a sum has been allowed, considering the amount of the estate, and the services required' of the exe-ecutors.
    4th exception. This is founded on a plain mistake committed by the executor, in charging in his first account, a commission on his whole receipts, and stating a balance against him, and afterwards, in a second account, charging a commission again on the same balance.
    5th exception. There was a sale of lands for 9,655 dollars, and the commission charged, is five per cent., which was too much. It does not appear that this money ever went through the hands of the executors. It was paid into bank, and drawn out by the different heirs, on the checks of the executors. But they had no right to receive it as executors. In fact, as there was no intestacy, the Orphans’ Court had no power to order a sale.
    7th exception. The executor having money in his hands, ought not to be permitted to charge interest on a legacy due to him under his father’s will.
    10th exception.' On tips exception it appeared in evidence, from a deposition fhat the amount of Bacon’s mortgage had not been received; that it was defective in consequence of not being recorded by the testator in his life time: that the executors had made en-deavours to recover the money, but had failed to do so: and that in consequence of the insolvency of the debtor, they made a compromise,. under which they obtained for the estate, some real property in the Northern Liberties.
    
    On this evidence, the counsel for the appellant contended, that it was owing to the remissness of the executors, that the money due on this mortgage was not obtained.
    12th exception. 'On this head, .no difficulty will be made, if the executors are willing to account for the certificates.
    13th exception. The question here is,- whether the executors are to be allowed the charge of fees to counsel, for advice in stating his account. We do not object to 12 dollars, allowed as a compensation to counsel for stating the account. Advice relative to stating the account, is the executors own business, not the business of the estate, and is compensated by the commission he receivies. .It is a matter between him and the estate, and not a business of the estate. For the latter, many allowances are made for counsel’s feesin these accounts, and not objected to.
    
      P. A. Brown and Binney contra.
    
    1st exception. The court ought not in this way, to decide on this objection, but to leave it open to a suit at law. If the court do decide, they must decide it as a court of law, and not as a court of equity: in which case it is clearly extinguished. Roll’s Jib. 920, 921. 2 Bl. Comm. 511. Co. Lit. 264. 1 Salk, 299. Sir IV, Jones, 345. Hob. 10. Thomas v. Thomson, 2 Johns. 421.
    2d, 3d, 4th, and 5th exceptions. The question as to the amount of commissions proper to be allowed to executors, is a difficult one, much contested, and on 'which there is no standard to refer to. In deciding it, regard should be paid to custom, because executors and administrators expect what is usually allowed, and are induced by that expectation to undertake the trust. The general rule in Philadelphia, has been, to allow five per cent. The records of the Orphans’ Court, from 1813 to 1821, have been searched with a view to this point, and 436 accounts in all, have been examined. In these, less than five per cent is allowed in 40 cases: in 394 cases, five per cent., or more. So that nine tenths of the accounts have passed with an allowance of five per cent. This is sufficient to constitute a general rule, which ought not to be departed from without particular reasons. In this particular case, the testator had somewhat more than 4000 dollars in bank : the rest of his personal estate consisted of dbonds, notes, &e. He had some mortgages, all of which-were in dispute. A very considerable portion of the estate, amounting to 37000 dollars, was collected by suit: a considerable part of which, has been paid by the executors, namely, 27000 dollars, after suit: and they have successfully defended several suits. Not less than fifteen suits were instituted by and against them. There was business in several states, and they made a voyage, by sea, to Moose Island, and journeyed back by land. The responsibility of executors is a very serious consideration: a mistake in judgment, might make them liable to the residuary devisees. As to the com-, mission on land sold by order of the Orphans’ Court, there is no reason why it should be less than five per cent.
    7th exception. We grant, that if the executor had money in his hands, he had no right to charge interest on the legacy.
    10th exception. The first security proved bad, and an attempt was made by the executors to change it for a better. It was done with the advice of counsel: and though it miscarried, it was done with a view to the benefit of the estate. Where executors act with due diligence, and with honest intentions, they are .not responsible for accidental losses. In Blue v. Marshall, 8 P. Wms. 387.,' the administrator released the arrears of rent to an insolvent tenant, who, in consideration thereof, gave up his lease: yet it being- done for the benefit of the estate, he was held not chargeable with the arrears. In 7 Johns. 411., the same principle is decided. In the People v. Pleas, the case of Blue v. Marshall, is cited and recognized. In Thompson v. Brown, 4 Johns. Ch. 625, it is said, that trustees acting bona fide, are always favoured. If the court have doubts as to the propriety and fairness of the executor’s conduct, it would be proper to direct an issue to determine it.
    12th exception. We have the stock in specie ready to deliver up.
    14th exception. It is as proper that an executor should be allowed for money paid for advice in stating the account, as for actually stating it. He is not supposed to be sufficiently conversant in the law, to enable him to make up the account safely, without legal assistance. It is in the execution of the trust: an indispensable branch of it: and, we conceive, a proper item of charge.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an appeal from the Orphans’ Court, on the settlement of the account of Joseph Clemson, one of the executors of his brother James Clemson, deceased. James Clemson appointed four executors, viz. his brother Joseph Clemson, Ellis Davis, Charles Bird, and JacobS. Wain. Davis and Bird renounced, and Joseph Clemson and Jacob. 8. Wain, acted, and settled separate accounts. Joseph Pusey, the appellant, is one of the residuary devisees of James Clemson, the testator. Fourteen exceptions were taken to the settlement of the account in question, of which the 6tb, Sth, 9th, 11th, and 13th, have been relinquished. All the others the appellant has endeavoured to support.

1. The appellee has not charged himself with a debt of 500 dollars, and the interest thereon, which he acknowledges to have been due from him to the testator, because he supposes that the debt was extinguished by the appointment of him as an executor. In this he is clearly mistaken. When a debtor is appointed executor, the debt is extinguished in law,, because he cannot bring suit against himself. But it is assets, and as such, he is accountable for it to creditors. And where, as in this case, the testator has devised the residue of his estate to others, the executor is considered in equity, as a trustee for the residuary devisee, to the amount of the debt due from him. The case has been carried even further. For where the testator gave legacies to his brother and nephew, who were indebted to him in different sums, and appointed them executors of his will, and made no disposition of the residue, these debts were declared to be a trust for the next of kin, the Lord Chancellor observing, u that he thought it a settled point in the Court of Chancery, that the appointment of the debtor executor, was no more than parting with the action.” Bac. Ab. Appen. vol. 1 p. 533, a. No. 10. Joseph Clemson must therefore be charged with this debt and interest.

The 2d, 3d, 4th, and 5th exceptions, are to the allowance of a commission of 5 per cent, to the executor, on the whole amount of the money received by him. The 4th exception is admitted to be good, as it points out a palpable error in the charge of commission, and shows what little consideration this account must have undergone in the Orphans’ Court. The executor settled two accounts. In the first, he was allowed a commission of 5 per cent, on his whole receipts, and a balance of upwards of 5000 dollars, which appeared against him, was carried to his second account. In this second account, in which the estate was credited with the balance of the first, the executor was allowed a commisson of 5 per cent, on the balance, as if it had been money received by him. This was a plain oversight both in the accountant and the court, and must now be rectified. The other three exceptions to the allowance of 5 per cent, commission, require very serious consideration.- It is a subject on which there has been great difference of opinion. And it is no wonder: for the law has fixed no certain compensation, nor is it possible for the court to establish a rate of commission which shall do justice in all cases. An executor should receive a compensation adequate to his care and trouble, besides a liberal allowance for all necessary expenses. But. it would be debasing the sanctity of the trust, to consider it as an office of profit. It is an honourable duty, which ought not be undertaken from motives of mere gain. Still, it is not to be expected, that executors should sacrifice their time, and subject themselves to hazard, without some remuneration But the difficulty is in fixing the quantum. It is very desirable, both for the sake of the executors, and the family of the testator, that there should be some standard to which both may look, on the subject of commissions. And in the cases which generally occur, it appears to me, after considerable research, that the common opinion and understanding of this country, has fixed upon 5 per cent, as a reasonable allowance. But to this rule there must be exceptions. There are estates, where the total amount is small, and that too, collected in driblets. In such, 5 per cent, would be insufficient. ' On the contrary, there are others, where the total being very large, and made up of sums collected and paid away in large masses, 5 per cent, would be too much. It must be left to the discretion of the courts, to ascertain those cases in which the general rule should be departed from. The personal care and anxiety of the executor, is a fair subject of consideration. An estate not equal to the payment of its debts, is always attended with hazard, which should not be forgotten in fixing the compensation. I have carefully examined the ac.count on which the present dispute arises, and am of opinion, that, it should be considered as an excepted case. In order to explain the reasons on which this opinion is founded, I shall consider the separate accounts of the two executors, as one. On the subject of commissions, there is no difference between them. Both depend on the same principles; and I understand, that the executors themselves consider the aggregate of the commission in both accounts, as a whole, to be equally divided between them. In the. first place then, we perceive an estate, which'at a round sum-, may be called 100,000 dolllars. In the next place, there was no hazard óf a de-vastavit from misapplication of assets, through ignorance of the law; the estate being much more than equal to the debts of the testator. There have been law suits in which large sums have been recovered. But the trouble has fallen principally on the counsel employed for the executors, for whose reward, a very liberal allowance has been made. All the expenses of the executors have also been paid, over and above their commissions. But what weighs-most with me, is the manner in which the money came to the hands of the executors. In order to show that the trouble was remarkably little, I must enter into some detail. Joseph Clemson reserved about 12,400 dollars, of which about 9400 consisted only ai five items. He took goods of the estate at the appraised value, amounting to about 500 dollars, and received the residue of the 9,400 dollars, in four payments, each of which was above 1200 dollars, and one of them 4,925 dollars. In looking into Jacob S. Wain’s accounts, we find, that in his first account, amounting to 58,000 dollars, and upwards, he received more than 49,000 dollars in large payments. There were four payments, of between 1,500 and 3,000 dollars each, six of between 4 and 8,000 each, and one of 10,000 dollars. In his second account, amounting to 35,000 dollars, and upwards, the receipts are likewise, in sums uncommonly large. There are other circumstances against a large commission in this case. There was a sale of real estate, which cost but little trouble to the executors, and a remittance to them of the proceeds of a mortgage in New York, which cost still less. Moreover, the estate has been burthened with very considerable sums paid to agents and attorneys who have had all the trouble of collecting large debts, and the executors have in some instances had little to do but to receive the money. Such accounts occur but very rarely. If in general, 5 per cent, may be deemed a reasonable allowance, it certainly cannot be so here. Considering all circumstances, it appears to me, that 3 per cent, would be quite sufficient, and that is the rate.at which I am of opinion it should be fixed.

7. The 7th exception is, “that the executor has not chargéd himself with interest on monies remaining in his hands, but has charged the estate with interest on a certain legacy, left to him, as he alleges, by his father’s will.” If the fact be so, it is an error which must be corrected. The accounts must be examined, befoie our decree is drawn up, and this exception will then be attended to.

10. The 10th exception is, that the executor has not charged himself with the amount of the mortgage for 900 dollars, and interest, given by Flag Bacon and wife, to Joseph L. Dickerson, the amount of which mortgage, with interest, was received by the executor.” The appellant has not made good his assertion, that this money was received by the execufor. Nothing like it has been proved. On the contrary, it is evident, that it has not been received, and the appellant has shifted his ground, and endeavoured to throw the burthen of this debt on the executors, on account of their negligence. But the charge of negligence has not been proved to the satisfaction of the court. It appears that the mortgage was defective for want of being recorded; and this defect existed in the life of the testator. In that respect, there is nothing to blame in the conduct of the executors. It appears too, that pains have been taken to recover the money, but without success. And finally the executors despairing of a recovery, by reason of the insolvency of the debtors, made a compromise to the best of their judgment, by which they have secured to the estate of the testator, some real estate in the Northern Liberties of Philadelphia. If the compromise was intended for the benefit of the estate, and has actually been for its benefit, (and from the evidence, I incline to think that such was the case,) the executor ought not to be charged with the debt. This principle has been sanctioned in Chancery, in the case of Blue v. Marshall, 3. P. Wms. 381., and The People v. Pleas, &c. 2 Johns. Cas. 378. I am of opinion, therefore, that this exception has not been supported.

12. The 12th exception relates to sundry shares in the Har-risburgh Bridge Company, Centre Turnpike Company, and Susquehannah and York Turnpike Company. There is no dispute on the subject of this exception. The executors acknowledge that they have the certificates for these shares, and are willing to account for them.

14. The 14th and last exception is, to the sum charged by the executors for fees paid to counsel for advice as to the mode of stating the account. There is no objection to the charge of twelve dollars, paid to an attorney for stating and preparing the account. Whoever examines the account will find, that very liberal allowances have been made to the executor, for fees paid to counsel, on the business of the estate. As to stating the account which is to be exhibited to the Register of wills, it has been usual to make a small allowance to the executor, because, he is not supposed to be conversant of the form in which it is to be drawn. But he may want advice for his own satisfaction, which may not be for the benefit of the estate, and with which therefore the estate ought not to be burthen-ed. I have known many instances, where executors have endea-voured to avail themselves of the advice of counsel, for their own benefit, and to the prejudice of the estate. In the present instance, I think twelve dollars sufficient for any assistance of which the executor was in need, in staling the account. Beyond that sum, therefore, the exception is allowed.

These are the principles, on which the court will decree in this cause, and the account must be rectified so as to be conformable to them.  