
    Farneyhough’s Ex’ors v. Dickerson &c.
    December, 1843,
    Richmond.
    (Absent Cabell. P.)
    Supersedeas — Executorial Account — Admission to Record. — An executorial account being settled by commissioners under an order of the court of probate, some of the legatees file exceptions to the account, and the court overrules the same, orders the account tobe recorded, and adjudges the exceptors to pay the executor’s costs. Held, this is a Anal proceeding or order, within the meaning of the act in Sess. Acts of 1830-31, ch. 11, § 30, p. 50; Suppl. to Rev. Code p. 115, to which, on the petition of the exceptors, a supersedeas may be awarded. Accord. Triplett’s ex’ors v. Jame-son, 2 Munf. 342.
    Executors and Administrators — Commissions.—As a general rule, an executor is not entitled to commission on the amount of debt due from him to the testator, and credited to the estate in the executorial account. Accord. Carter’s ex’ors v. Cutting and wife, 5 Munf. 237.
    Same — Same.—The commission of an executor should not be on the amount of Ms disbursements. He ought generally to be allowed a commission on the amount of the credits in his account, except on a credit for a debt due from Mm to the testator. Though some of the credits are for bonds due the estate, that were passed over by the executor to legatees, and voluntarily received by the latter, commissions will nevertheless be allowed the executor on the amount of such bonds.
    Same — Charges lor Clerk’s Hire. — An Item of $21, paid by executors for services rendered by a clerk, being allowed by commissioners, the same was excepted to by legatees, upon the ground that what the clerk did ought to have been done by the executors, and therefore that he should be paid out of their commissions. The record contained no evidence on the subject, except tbat the dale of the item was a few days after the date of a large credit for sales at public auction, which furnished some ground for the inference that the clerk was employed during those sales. Held, the court of probate did not err in overruling the exception.
    On the application of Nimrod Branham and Edward Earneyhough junior, executors of Edward Earneyhough senior deceased, the court of Albemarle county, at 583 August "'term 1832, appointed commissioners to settle the accounts of the said executorship. The accounts were accordingly settled from January 1832, when the executorship commenced, to July 1832, and a report returned, to which there were seven exceptions filed by legatees.
    The second exception was to an item of 21 dollars “paid B. Townley for services as clerk. ’ ’ It was excepted to upon the ground that if the executors thought proper to engage the services of a clerk to perform labour which they should themselves have performed, he should be paid out of their legal commissions. The date of this item was the 31st of January 1832; the credit for sales at public auction bore date on the 23d of that month; and the amount of those sales was 14695 dollars 51 cents.
    The credits to the estate being 23813 dollars 51 cents, and the disbursements 22177 dollars 7034 cents, a commission of 5 per cent, on the disbursements was allowed, amounting to 1108 dollars 88 cénts, and the said disbursements and commissions being deducted, a balance was reported in the executors’ hands of 526 dollars 9234 cents. One of the credits was ‘ ‘Nimrod Branham’s note, 1123 dollars 47 cents.” And the third exception was because the executors were allowed a commission of 5 per cent, on this debt, and it was deemed illegal and unjust that an executor should be allowed a commission for paying his own debt.
    Among the sums credited as received by the executors, were credits on account of notes assigned to Douglass Dickerson and Thomas Birkhead, two of the legatees. By statements subjoined to the report, it appeared that the amount -of notes assigned to Dickerson was 2029 dollars 19 cents, and that the amount of notes assigned to Birk-head was 2687 dollars 34 cents. The fourth exception was because the commissioners allowed the executors 5 per cent, corn-584 mission on the *amount of notes so assigned to the said Dickerson and Birkhead. The notes, it was stated in the exception, were in part in possession of the testator at the time of his death, and in part for property sold by the executors, and were assigned, at the instance and request of the said executors, to the legatees, who assumed the trouble, expense and responsibility of collecting the same.
    The county court overruled the exceptions to the report, ordered the said report to be recorded, and adjudged the legatees who filed the exceptions to pay the executors their costs. On the petition of the legatees, a supersedeas was awarded. The circuit court was of opinion that the county court erred in overruling the second, third and fourth exceptions, which alone were insisted on; and the order of the county court was therefore reversed with costs, and the report directed to be recommitted for the purpose of being reformed accordingly.
    On the petition of the executors, a super-sedeas was awarded.
    Eeigh for plaintiffs in error.
    The first question is whether, under the present circuit court law, a supersedeas lay to the order of the county court. Under the old circuit court law, 1 R. C. of 1819, p. 239, ch. 69, l 56, it was held in Triplett’s ex’ors v. Jameson, 2 Munf. 242, that an appeal lay from such an order. But now by the new law, the judgment, proceeding or order to which a supersedeas may go must be “final, ■and nowise interlocutory.” Sess. Acts of 1830-31, p. 50, ch. 11, $ 30; Suppl. to Rev. Code p. 145. Here the order settled nothing finally, — established no right to the credits. It merely had the effect of making the account prima facie evidence in case a bill to surcharge and falsify that account should subsequently be filed in chancery by the legatees.
    585 *11. There is no ground on which this court can pronounce the allowance of 21 dollars for clerk hire unreasonable or improper. All - that we know is, that the commissioners and the county court thought it reasonable, that in point of fact the charge had been incurred by the executors. It may have been expended in procuring the services of a clerk at the sale of the decedent’s estate, to keep the account of sales, take bonds from the purchasers, &c.
    Ill and IV. The exceptions to the commissions allowed proceed upon the idea that an executor is only entitled to a commission on money actually collected or bonds actually taken by him, for debts due the testator or proceeds of sales of the estate. Even on this principle, a commission ought to have been allowed on such of the notes as were the proceeds of sales made by the executors. But an executor is not to be thus restricted. The commission is not given merely on account of his personal trouble, but as a compensation also for the risk and responsibility which he incurs.
    Patton for defendants in error.
    The order of the county court disposed finally of the whole case before that court, which then had neither the power nor the materials for any further action. And any order which is the final action of the court in the cause is a final judgment of the court, and nowise interlocutory. What the effect of that judgment may be as evidence, —-whether it is to conclude the parties to the proceeding, or merely to operate as prima facie proof of the matters determined by it, in any other and distinct litigation involving the same question, is a consideration which cannot in any degree bear upon the question whether the judgment is final or not. But here the judgment of the county court was pronounced inter partes. The legatees appeared and controverted the propriety of allowing the items in question. Having done so, they could 586 *not be permitted to file a bill in chancery for the purpose of surcharging and falsifying the account in respect to the same items. Therefore, even in the sense of finality which is contended for on the other side, the judgment of the county court was final: it concluded the legatees until reversed, and left them no means of continuing or reviving the controversy except by the proceeding which they have resorted to.
    II. Where an item of an administration account is excepted to, the party relying on the account must prove the item ; the burthen of proof is on him; and until that proof is adduced, the item is inadmissible. The other side reverses this principle, and contends that as there is no evidence to shew that the charge for clerk hire was unreasonable, this court cannot say that it was so. The commission ordinarily allowed to the executor is to be considered as full compensation for all the trouble and expense incurred by him in the administration, until its inadequacy is shewn. In Hikpius v. Bernard &c., 4 Munf. 83, it was expressly decided that clerk hire is not to be allowed to an executor generally, though it was allowed in that case under special circumstances; the estate being large, and the administration unusually troublesome, so that a bookkeeper was regarded as necessary.
    III. Carter’s ex’ors v. Cutting and wife, 5 Munf. 227, decides that where an executor is indebted to the estate, no commission is to be allowed for the collection of that debt.
    IV. Hipkins v. Bernard &c., 2 Hen. & Munf. 21, is relied upon as sustaining the fourth exception.
    C. Johnson in reply.
    It should be borne in mind that the present statute was passed after the decision in Triplett’s ex’ors v. Jameson, in which the court of appeals with great hesitation came to the conclusion that the appeal might be sustained. It is at least probable, then, 587 *that the emphatic language in the present statute, whereby the proceeding to which a supersedeas may go is required to be nowise interlocutory, was introduced for the purpose of excluding from an appellate court such cases as this, where the whole litigation, however protracted, could settle nothing whatever.
    II.It is very probable that the 21 dollars was allowed for the hire of a clerk at the auction sale made by the executors. The payment was made within four or five days after the sale. And the exception is not for defect of proof that the services were rendered, but proceeds on the ground that the allowance is wrong in principle, — that an executor is not to be allowed for clerk hire. There is no such rule. The act of assembly provides that all disbursements by the executor shall be allowed, and that j a compensation for his personal trouble shall also be allowed. 1 JR. C. of 1819, p. 389, ch. 104, 'é 59; 2 Rob. Pract. 369. In Hipkins v. Bernard &c. the charge for clerk hire was allowed as a proper one, in addition to 5 per cent, commission on an estate of 40,000 pounds.
    III. The effect of the credit for the whole amount due on Nimrod Branham’s note is to make the executors jointly responsible for the amount, and to treat it as cash in their hands. Moreover, the balance appearing against the executors upon the account is only 500 and some odd dollars; so that at least 600 dollars of Branham’s note was. actually disbursed. The case of Gran-berry’s ex’or v. Granberrj's, 1 Wash. 246, decides that an executor may charge himself with the amount of his debt to the estate, and scale it as of the date of the charge, besides being allowed his commission upon it. In 2 Rob. Pract. 368, it is. laid down that an executor indebted to the decedent should generally be charged with the amount of the debt due from him, and Decker &c. v. Miller, 2 Paige 149, is there referred to. The case of Carter’s ex’ors v. Cutting and wife, 5 Munf. 227, 588 'xis no decision of this court on the point for which it was adduced; though the principle is laid down by chancellor Taylor, in-the instructions given by him to the commissioner in the court below. What were the circumstances under which that instruction was given does not appear. They may have been such as to render the instruction in that case correct.
    IV. The legatees were not bound to accept the bonds, but might have required the executors to collect the money due upon them. Having accepted them as so much money, they cannot object to the allowance of commission on them. The opinion of the chancellor in Hipkins v. Bernard &c., 2 Hen. & Munf. 21, was overruled in toto by this court in 4 Munf. 83. Under the decision of this court in that case, and the other decisions cited in 2 Rob. Pract. 370, the commissions allowed the executors in this case were not unreasonable. It being admitted that the executors are entitled to commissions upon the amount of bonds taken at their sale of the estate, and the legatees being in .possession of the bonds assigned them, if they rely upon the fact that a part of the bonds were executed to the testator before his death, they are bound to produce the evidence of that fact; the onus probandi is on them. The executors producing the receipt of the legatees for so much paid them in bonds, make at least a prima facie case of title to commission on the whole.
    
      
      Executors and Administrators — Commissions.—See foot-note to Claycomb v. Claycomb, 10 Gratt. 589. The principal case is cited in Buxton v. Shaffer, 43 W. Va. 296, 27 S. E. Rep. 320 ; Claycomb v. Claycomb, 10 Gratt. 592; Gregory v. Parker, 87 Va. 451, 12 S. E. Rep. 801. See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   STANARD, J.,

delivered the following as the opinion of the court:

The court is of opinion that the circuit court erred in sustaining the exceptions to the allowance of 21 dollars to the executors for clerk hire, and to the allowance to the executors of commission on the amount of bonds due the estate, which the executors' passed over to the legatees, and which were, as far as appears, voluntarily received by the legatees from the executors. The court *is further of opinion, that, as a general rule, an executor is not entitled to commission on the amount of debt due from him to the testator, and brought to his debit in the executorial account, and that nothing appears in this case to prevent the application of this general rule to it; and that therefore the county-court erred in overruling the exception to the allowance of commission on the debt of the executor Branham to his testator. The executors ought to have had credit for commission on the amount of the credits in the executorial account, except the credit for the said debt of Branham; instead of limiting their commission, as was done by the commissioners of the county court, to the amount of the disbursements. Therefore it is considered that the judgment of the said circuit court be reversed and annulled, and that the plaintiffs in this court recover against the defendants their costs expended in the prosecution of their writ of supersedeas here. And this court proceeding to render such judgment as the said circuit court ought to have given, it is further considered that the order of the county court admitting the account of its commissioners to record be reversed and annulled, and that the plaintiffs in the said circuit court recover against the defendants there the costs by them in the prosecution of their writ of supersedeas in that court expended. And it is ordered that the cause be remanded to the said circuit court, and from thence to the county court, with instructions to recommit the said report of the commissioners, to be so reformed as that, instead of the commission thereby allowed the executors, a commission be allowed them on all the credits to the estate except that for the debt of Branham the executor, and that the account so reformed be admitted to record in the said county court.  