
    Wood’s Ex’or v. Garnett.
    April, 1835,
    Richmond.
    (Absent Bbooke and Brookiohbbotjgh, J.)
    Executors and Administrators — Interest on Balances. —The propriety of charging an executor with interest on balances in his administration account, depends on the particular circumstances of each case; and he ought not to be charged with interest on small annual balances, when it appears, that he was in no default in not paying them over to legatees, and never applied the money to his own use.
    Same — Settlement of Accounts — Commissions.- -An executor, however meritorious his administration, is not entitled to commission, if he fail to settle and return his accounts of administration, according to the statute of 1824-5, ch. 8,§ 8.
    This was a suit, in the superiour court of chancery of Richmond, by Garnett, one of the residuary legatees in the will of Wood, against Stevenson the executor, and the other residuary legatee, praying an account of the estate, and of the executor’s administration, and a decree *for the plaintiff’s share of the balance which should be found due thereon. The cause having1 been transferred to the circuit superiour court of Charles City, that court referred the accounts to a commissioner.
    In the' account reported by the commissioner, the executor was charged with interest on the annual balances found due to the estate; and he was allowed ten per cent, commission, for extraordinary trouble in the administration, and for some expenses, which appeared to have been incurred by him, and which he -had not specifically cttarged. The defendant objected to the charges of interest on the annual balances; and the plaintiff objected to the credits for commission allowed to the executor. The court declared, that five per cent, commission only should be allowed on the general transactions of the executor, and that two and a half per cent, commission should be allowed him, on some bank stock transferred by him at par to the legatees. And the accounts being reformed accordingly, there appeared to be balances of 874 dollars, with interest from the 31st December 182S, due the legatee Garnett, and 190 dollars, with like interest, due the other residuary legatee. Whereupon, the court decreed those balances to the legatees respectively. And Stevenson applied, by petition, to a judge of this court, for an appeal from the decree; which was allowed.
    1. The claim of Stevenson to be exempted from the charge of interest on the annual balances, was founded on the peculiar circumstances of the case; which, as they appeared by the report of the commissioner, and by the proofs, were as follows —The balances in the hands of the executor at the end of each year, after deducting payments made by him to legatees, were verj' small. There was a suit threatened upon a claim against the testator’s estate, which the executor was warned by the ap-pellee Garnett, not to pay. The money belonging to the estate was kept by him in bank, *separate from his own ; and was only drawn out for payment of debts and legacies. And it appeared, that within less than six months after his qualification, he paid the legatees, including Garnett (to whom a legacy of 4000 dollars was bequeathed, as well as half of the residuum) more than half of their legacies, and that too without requiring any refunding bond, though he was not bound to pay any part of them in less than a. year, nor even then without such bond.
    2. The objection to the allowance of commission to the executor, was founded on the provisions of the statute of 1824-5, ch. 8, Supp. to Rev. Code, ch. 158, $ 8, p. 217. Stevenson qualified as executor of Wood, in the hustings court of Richmond, at June term 1822; and his accounts of administration were settled, for the first time, before a commissioner of the hustings court, in 1829. The statute requires, that all executors &c. who should qualify after-wards, should within two years from the time of qualification, and those who had qualified before, should within two years after the passing of the statute, apply to the court of probat, to appoint a commissioner to settle their accounts, so far as the administration should have proceeded; and requires executors &c. to cause their acco'unts to be so settled before such commissioners, and returned to court; and, in like manner, to settle their accounts in every two years during the administration : and then the statute provides, th,at “any executor &c. who shall fail to comply with the provisions of this act, shall forfeit all right to anjr commission or compensation whatever, for services rendered in administering so much of the estate of the testator &c. as shall not have been settled agreeably to the provisions of this act; and in no case where such failure shall occur, shall any compensation be allowed by the court to which such account may be rendered;” with a provision containing exceptions which do not affect the present case.
    *The cause was argued here, by J. S. Myers for the appellant, and Brook for the appellee,
    on the two questions respecting the charge of interest on the annual balances, and the allowance of commission to the executor.
    
      
      Executors and Administrators — Settlement of Accounts — Commissions.—In Estill v. McClintic, 11 W. Va. 413, the court said: “If the administrator had failed to settle his account in the time required by the statute, and he had been allowed a commission for receipts during this time, this allowance might have been objected to for the first time in this court. For unless such failure occurred during the war, extraneous testimony could not be introduced to show the justice of allowing a commission, the statute expressly declaring that no commission under such circumstances shall be allowed. Wood’s Ex’or v. Garnett, 6 Leigh 271; Chapman v. Shepherd, 24 Gratt. 377.”
      The principal case is cited in Strother v. Hull, 23 Gratt. 670. See foot-note to Morris v. Morris, 4 Gratt. 295, and monographic note on “Executors and Administrators ” appended to Rosser v. Depriest, 5 Gratt. 6.
      And that the loss of commissions by reason of a failure to settle the accounts is not a forfeiture or penalty, but a mere matter of statutory regulation, see the principal case cited in Crigler v. Alexander, 33 Gratt. 679.
    
   CABELL,, J.

The first question is, whether it was proper to charge the appellant with interest on the annual balances in his hands? The propriety or impropriety of charging an executor with interest, must always depend on the particular circumstances of each case. And under all the circumstances of this case, I think it was wrong to charge this executor with interest on the annual balances. [Here the judge stated the circumstances.]

But I am also of opinion, that there is an error against the appellee in the decree, in allowing any commissions to the executor; he having failed to settle his accounts according to the requisitions of the statute of 1824-5. The statute is so explicit, that I cannot doubt its construction. It clearly requires, that every executor who had qualified before its enactment, should settle his executorial account within two years after its commencement; and that on failure to do so, he should forfeit all right to any compensation whatever. The object of the legislature was to force executors to settlements of their transactions, so far as they had gone, in order that all persons interested in the estate might know the state of the assets; and this object is not answered by mere partial payments to legatees. But while I feel myself bound to apply the provision of the statute to this appellant, I must say, that, in my opinion, it has a very harsh operation in his case. He has certainly incurred much trouble, and, the commissioner says, many expenses which he has not charged. He has been unusually prompt in paying to the legatees, what he thought them entitled to, and has never appropriated any of *their money to his own uses. Were I not forbidden by the positive terms of the statute, I should allow him a compensation much larger than that to which the court below thought him entitled.

TUCKER, P.

It is due to the appellant to observe, that there is nothing in the discharge of his official duty to disapprove, except the omission to settle up his accounts according to the provisions of the statute. He has manifested no disposition to withhold the funds of the estate from the persons entitled to them, or to dispose of them for his own uses. On the contrary, he has paid out those funds to the legatees with most unusual promptness, without throwing any obstacles in the way, and without even requiring the refunding bond which he might have demanded by the law. On the small annual balances, I concur with my brother Cabell, that, under the particular circumstances of the case, no interest should be charged.

But the allowance of commissions is objected to: and, while I must say, that X think the objection a most ungracious return for the promptness with which the executor paid over to the legatees the moneys received in 1823, I am compelled to acknowledge its validity, if insisted on. The object of the statute of 1824-5, was to compel executors to settle their accounts before the court of probat, in order to diminish the number of those vexatious suits in equity, which are a sore evil in the land. It designed to compel prompt settlements, while transactions were yet fresh, and vouchers and evidence yet in existence; and though a settlement between the parties themselves by mutual consent, would take a case out of the statute, yet I think it may be safely affirmed, that partial payments, from time to time, without an exhibition and adjustment of accounts, cannot amount to such a settlement as will take the demand of commissions out of the operation of the statute. *It is, indeed, a hardship, that it should be applied, in the present case, at least to so much of the account as is embraced within the transactions of the first year. But we must obey the law; we cannot repeal it indirectly, by construing it away. It was said, that this is a forfeiture of a pre-exist-ing and vested right. Admit it, for the sake of argument; yet it cannot be denied, that the same power which can inflict a pecuniary penalty in the shape of a fine, can take away a right as a punishment for an offence. This is all that is here done. If the legislature had denounced against executors a penalty of ten per cent, on the amount of their receipts, to be paid to the legatees, who could gainsay the act? How, it is not perceived, that the case thus put is stronger than that of taking away a vested right to a commission to be paid out of the estate. There is nothing then in the statute, beyond the power of the legislature. It was said, too, that the plaintiff here, calls upon equity to enforce a forfeiture, which is not within its province. As a general proposition, it is certainly true, that equity cannot enforce a forfeiture. But as that court alone has the jurisdiction to settle finally the accounts of executors, and to decree to legatees and distributees their portions of a decedent’s estate, the law would be a dead letter, if it was not a law for the courts of equity, which they are bound to follow. The statute declares, that upon failure to account, no compensation shall be allowed to the executor. How, then, is the court of equity to settle the account, and decree the balance? It must either reject the compensation, and thus seem to enforce a forfeiture, or it must directly disobey the law. The latter it cannot do. If, therefore, the provision of the law was to be considered as creating a forfeiture, instead of being as it is a mere regulation for settling an account, I should still think we were bound to obey it. But, in truth, it is but a regulation for settling an account. Before the statute of *May 1730, ch. 8, § 21, 4 Hen. stat. at large, p. 287, executors received no compensation, no commission. In England, thej receive no commissions. Qur statute provides, that they shall be allowed such compensation for their personal trouble as the court shall judge reasonable ; 1 Rev. Code, ch. 104, § 59, p. 389. No fixed compensation is established by law. The matter is within the discretion of the court, and until that discretion has been exercised, there is no vested interest in the executor. He cannot say he has a title to any particular sum; and though I am aware of no case in which the court had altogether refused commissions to the executor, because of his misconduct, yet I cannot doubt, that his gross misbehaviour would be good cause for reducing them. The right, then, is not a vested right. The same power which authorized the allowance, now forbids it to be made, where the executor has not settled his accounts. The courts of equity, then, in looking for their authority to one of these laws, surely cannot disregard the limit upon that authority imposed by the other.

Upon the whole, I am of opinion, that the decree should be reversed, and the cause sent back, with directions, that the accounts be recommitted to the commissioner, with instructions to disallow interest except from the close of the transactions, on the one hand, or commissions on the other. The costs must be decreed to thé appellee, as the party substantially prevailing.

CARR, J., concurred.

Decree reversed, with costs to the appel-lee, as the party substantially prevailing ; and cause remanded to the circuit supe-riour court, with directions to recommit the accounts to the commissioner, with instructions not to allow commissions to the executor on the one hand, and on the other, not to charge him with interest, except from the close of the transactions.  