
    Triplett’s Executors v. Jameson.
    Tuesday, April 23d, 1811.
    i. Executors — Account—Who May Object to. — Any person interested in the settlement of an executor’s account may object to its being allowed and recorded, and, being overruled in sucb objection, may appeal to a superior court.
    2. Same — Compensation—Commissions.—A commission of more than five per cent, on the amount of sales and collections, ought not to be allowed an executor, except upon peculiar circumstances.
    On the motion of Charles Little and George Triplett, executors of William Trip-lett, deceased, the court of Fairfax county appointed commissioners to settle their account with the estate of their testator, which was accordingly examined, and reported to be correct, by the commissioners, and, being again examined in open court, was allowed and ordered to ■ be recorded ; though objected to by Robert B. Jameson, (“one of the devisees, in right of his wife,”) who filed exceptions to so much of the report as allowed a commission of 7 1-2 per cent, to the executors upon the amount of sales and collections, as “unreasonable and too much.” Robert B. Jameson appealed to the district court holden at Hay-market, which reversed the order of the county court, and directed a commission of 5 per cent, only to be allowed ; whereupon the executors appealed.
    Botts, for the appellants,
    insisted that Jameson had no right to appeal from the order of the county court; and cited Sayre v. Grymes, 1 H. & M. 403.
    *Peyton Randolph, contra.
    The case of Sayre v. Grymes is not like this; for Sayre, who obtained the supersedeas in that case, was not a party on the record; whereas, here, Robert B. Jameson regularly made himself a party, by taking the objection in the county court.
    Botts, in reply,
    cited Holcomb v. Purnall, referred to by Judge Tucker, 1 H. & M. 406, 407, and Dunlop v. The Commonwealth, 2 Call, 284. In Sayre v. Grymes, the court went upon the general principle, that a person not interested can neither appeal nor obtain a supersedeas. Besides, this was not a proper subject for an appeal: the county court had conclusive power on the subject, and were the best judges whether the commission of 7 1-2 percent, was reasonable or not.
    P. Randolph. The county court was bound to exercise a sound discretion ; and whether they did, or not, is a question properly examinable by a superior tribunal. Nothing is to be presumed in favour of their decision. The account is brought up, and this court has all the data to enable it to form a judgment. Seven and a half per cent, is an extravagant compensation in this case. An executor is not to be allowed as an insurer of the debts ; but in proportion to his trouble and expense, according to fixed principles.
    
      
       Executors — Account—Who May Object to. — See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Same — Compensation—Commission.—On this subject the principal case was cited in Estill v. McClintic, 11 W. Va. 411; Beecher v. Foster, 51 W. Va. 605, 42 S. E. Rep. 654. See foot-note to Fitzgerald v. Jones, 1 Munf. 150.
    
    
      
       Note. The amount of sales was 37,889 dollars and 31 cents; of cash in the bank, and in the desk of the testator, at the time of his death, 1,017 dollars and 25 cents; and of collections 912 dollars and 20 cents. The comniission allowed was 7. 1-2 per cent, upon the total of these sums. — Note in Original Edition.
    
   Wednesday, April 24th.

JUDGE ROANE

pronounced the opinion of the court. “The court, considering that the appellee appeared and contested the allowance of the executors’ account, as stated in the proceedings ; that he averred himself to be interested, as a devisee, in the estate in question, and .appealed from the judgment of the court of Fairfax county sanctioning the account; are of opinion that, under the decision of this court in the case of Wingfield v. Crenshaw, 3 H. & M. 245,-the case was properly carried by him, by way of appeal, to the district court; and that that court rightly reversed *the judgment appealed from ; inasmuch as no facts or circumstances are stated on the part of the appellants justifying the allowance of a commission of 7 1-2 per centum to the executors. The only doubt the court had upon the subject was, whether, inasmuch as the order of allowance by the court of Fairfax county was only ex parte, an appeal would lie from the judgment; but considering that such ex parte settlement might operate injuriously to the appellee and others, in the event of the loss of testimony and documents competent to impeach that allowance, when the same might thereafter be more deliberately questioned ; the’ court is inclined to sustain the appeal, under that provision of the act which gives a right of appeal to all who may be injured or aggrieved, by the sentence or judgment of a county court, in any suit or contest whatsoever.”

Judgment affirmed.  