
    *Waddy’s Ex’ors v. Hawkins’s Adm’r.
    April, 1833.
    (Absent Cabell, J.)
    Administrator d, b. n. — Capacity to Sue — Case at Bar. —The sureties of an executrix require counter security from ber under the statute of wills of 1792, ch. 92, § 2D, and she failing' to give counter security, the court orders her to deliver the testator's estate then in her hands, consisting of slaves, to her sureties; she delivers the estate to them, and they receive the profits for several years; then the executrix dies, and there is an administrator de bonis non with the will annexed of the testator; the sureties having never settled any account of their transactions while the estate was in their hands, a suit in chancery is brought by the administrator de bonis non against the sureties, for an account of the profits, to which the legatees of the testator are not parties. Held, the suit well brought, the administrator, not the legatees, being entitled to demand the account of profits and the balance due thereon.
    Executors — Compensation — Amount. — Testator directs, that his executors shall be handsomely paid out of his estate, for the trouble they shall be at in discharging that trust; it appears, that there is no extraordinary trouble in the administration: Held, nothing shall be allowed beyond the usual commission of five per cent.
    The last will and testament of John Hawkins deceased, proved and recorded in the county court of Hanover, in the year 1779, after appointing his executors, “desired that they might be handsomely paid out of his estate for the trouble they should be at in discharging that trust.’’ His wiilow Mary Hawkins qualified as executrix, and William Waddy and George Dabney were her sureties, in her executorial bond. At the May term of the county court 1794, the executrix having received due notice of an application to be then made to the court, by her sureties for counter security, and failing to appear, an order was made by the court, that she should deliver the estate of her testator in her hands, to the sureties, Waddy and Dabney.' And, accordingly, she delivered to them, all the estate that remained unadministered, consisting of a few debts due or claimed to be due to*the estate and yet to be collected, and about twenty slaves; and thenceforth till December 1801, Waddy had the possession and management of the whole property, taking steps to collect the debts claimed for the estate, and receiving the profits of the slaves. His co-surety Dabney, took no part in the business. At the end of the year 1801, Mrs. Hawkins the executrix being dead, and Joseph Hawkins, having taken administration de bonis non with the will annexed of the testator John Hawkins’s estate. Waddy delivered him all the slaves belonging to the estate, but he rendered no account of his transactions while the estate was in his hands. Application was. made to Waddy to render this account in 1809 ; when he admitted his duty to render it, but owing- (it appeared) to ill health, bemade no settlement; and shortly afterwards, he died.
    In 1813, Joseph Hawkins, the administrator de bonis non wiih the will annexed of the testator John Hawkins, exhibited his bill, in the superiour court of chancery of Richmond, ag-ainst Dabney and John Waddy executor of William Waddy, praying an account of the administration of the estate by Dabney and Waddy, while it was in their hands under the order of the county court of May 1794, and a decree for the balance that should be found due thereon. And the defendants having put in their answers, by which it appears that Waddy had had the sole management of the estate, and was alone accountable for the same, the court ordered the executor of Waddy to render an account of Waddy’s administration of Hawkins’s estate while it was in his hands.
    The commissioner reported two statements-The first, after allowing Waddy the usual commission of five per cent., shewed a balance due from his estate to that of Hawkins, of 1671 dollars, with long arrears of interest; which balance ^consisted, almost intirely, of the profits of the slaves while they were in Waddy’s hands, from 1794 to 1801. The second statement shewed a balance of only 288 dollars ; the balance being reduced to this sum, by crediting Waddy with 200 dollars, yearly, for the seven years of his agency, for his trouble in managing the estate. It appeared clearly, from the face of the accounts, that he had incurred no extraordinary trouble at all; and, in the first statement, all his expenses were credited to him, over and above the five per cent, commission therein allowed. The claim for the extraordinary compensation of 200 dollars a year, during the seven years, was founded wholly on the provision in the will of the testator Hawkins, that his executors “should be handsomely paid out of his estate for the trouble they should be at in discharging their trust.”
    Much delay was produced in the progress of the cause, by the deaths of all the parties, the necessity of reviving it from time to time, and the delays in the qualifications of other representatives of the deceased parties ; and many years elapsed before the suit was revived between the proper parties, and brought to hearing. At the final hearing, the cause stood revived between Hiddal Bowles administrator de bonis non of the testator John Hawkins, and Anthony Waddy the surviving executor of William Waddy (the surety) and Edmund Goodwin administrator of John Waddy, who alone had first qualified as the executor of William.
    The chancellor, being of opinion that there was no ground for the claim of the extraordinary compensation of 200 dollars per annum to Waddy, for his trouble in managing the estate, and that the usual commission of five per cent, was an ample compensation, decreed, that the surviving executor of Waddy should pay to Bowles the administrator de bonis non &c. of Hawkins, the balance of 1671 dollars, with interest &c. appearing to be due by the first statement of the commissioner’s report. From this decree, the defendant applied by petition to this court for an appeal; which was allowed.
    *Daniel and Johnson, for the appellant, insisted, 1. that Waddy, who had in effect administered the estate of Hawkins from 1794 to 1801, was entitled, by the express provision cf Hawkins’s will to be “handsomely paid for his troublewhich, they said, certainly meant that he should be allowed something more than the usual compensation of five per cent, commission. And 2. that the administrator de bonis non of Hawkins, could not maintain a suit against Waddy, to recover the balance due from him to Hawkins’s estate, any more than he could have maintained a bill against Mrs. Hawkins, the executrix, to recover a like balance due from her, if the estate had remained in her hands, since Waddy must be considered as acting merely as her agent; and that the claim could only be prosecuted by the creditors or the legatees of Hawkins : and as to this point, they relied on Wernick’s adm’r v. M’Murdo, S Rand. 51.
    J. M’C. Wickham and Heigh, for the appel-lee,
    answered, that there was not the least pretext for the claim of extraordinary compensation for Waddy’s services ; for it was plain, from the accounts, that if there had been any extraordinary trouble in the administration of Hawkins’s estate, that trouble had been incurred by Mrs. Hawkins, the executrix, before the estate was taken out of her hands ; that Waddy, certainly, had incurred no trouble for which the commission of five per cent, was not a “handsome” compensation. As to the other point, they said, that Waddy was not an executor or administrator of Hawkins’s estate, nor an agent of the executrix, but only a receiver appointed by the court; per Green, J., in Wernick v. M’Murdo, 5 Rand. 87. But supposing he was to be regarded as the agent of Mrs. Hawkins, the executrix; then, as the moneys he had received had never been accounted for and paid to her, she neither had, in fact, nor could have, administered them, or converted them to her own use; so that the balance due from Waddy was assets of Hawkins’s estate remaining unadministered, and unconverted, which, according to the ^principles of the case of Wernick’s adm’r v. M’Murdo, belonged to the administrator de bonis non of Hawkins ; Id. pp. 72, 73.
    
      
      Administrators d. b. n. — Capacity to Sue. — See mon-ographic note on “Executors and Administrators”' appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Executors — Compensation—Amount.—See principal case cited in Claycomb v. Claycomb, 10 Gratt. 591; Gregory v. Parker, 87 Va. 454, 12 S. E. Rep. 801.
      For further information, see foot-note to Claycomb v. Claycomb, 10 Gratt. 589; monographic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      This order was made under the provision of the revised statute of wills of 1792 (1 Old Rev. Code, ch. 92, § 25; Pleasants’s efli. p. 165), which was In these words: “When sureties for executors or administrators conceive themselves in danger of suffering thereby, and petition the court for relief, the court shall summon the executor or administrator, and make such order or decree thereupon, to relieve and secure the petitioners, by counter security or otherwise, as to them shall seem just and equitable. ” There was, at that time, no other statutory provision on the subject. The order of the county court, in the present instance, was in conformity with the usual practice of the courts under the provision above quoted. — Note in Original Edition.
    
   PER CURIAM.

The decree is to be affirmed.  