
    William P. Corbin, and Wife, v. Jesse M. Howell, Administrator of John Howell, Executor of William F. Goodwyn, Abraham D. Jones, Surviving Executor of William F. Goodwyn, and Others.
    The administrator of an executor, is competent to make a return to the ordinary, of his intestate’s administration of the estate of the testator, where the intestate has failed to make such return in his life time ; and if the return is made within twelve months after the grant of administration, the estate of his intestate will be intitled to commissions, upon his receipts and payments, on account of his testator, within one year preceding his own death: nor is it material, at what time of the year the account is rendered.
    Before Haepee, Chancellor, at Columbia, February, 1830.
    This was a bill for an account and settlement of the estate of William F. Goodwyn, deceased, which had been referred to the commissioner, and now came up upon exceptions to his report. The only exception, which it is necessary to notice, related to commissions, which were allowed, on the receipts and payments of John Howell, the deceased executor, which were very considerable ; and all the facts material to the question, raised by this exception, will be sufficiently understood, from the circuit decree.
    Haepee, Ch. The general rule is, that executors and adminis. ttators are intitled to commissions, under the statute, for all moneys received, and paid away, by them; but they must conform to the requisitions of the statute.
    In this case it is objected, that the executor did not make any return to the ordinary, although he had been in the management of the estate, for several years. It has been long settled, that for the years for which an executor, or administrator, has not made returns to the ordinary, he is not intitled to commissions; nor is he to have commissions, on sums of money received, and paid away, in one year,in which he neglected to make a return, by subsequently bring, ing forward those sums into a later year, for which he does account, as that would defeat the statute altogether : but there can be no doubt, as to his right to commissions, on his receipts and payments, within the year immediately preceding his making his returns.
    The circumstances, under which the question arises in this case, are peculiar. The facts are as follows. John Howell, the executor, died in October, 1825,-without having made any return ; but an account of his administration, was returned to the ordinary, by bis administrator, Josse M. Howell, in November, 1826 s and the commissioner has allowed commissions on the transactions of the year 1825, which were very considerable.
    ^'s contended, for the complainants, that it is not competent for the administrator of an executor, or administrator, to make the return, and obtain the commissions, even for the estate of his intestate; for that-case is not provided for by the statute. In my judgment, however, it is clearly within the spirit of it.
    Suppose an executor, or administrator, conducts large pecuniary concerns for an estate, and receives, and pays away, considerable sums of money, which he enters in his book, but dies at, or near, the end of the year; and his executor, or administrator, goes at the beginning of the year, and exhibits the accounts to the ordinary : ought not that officer to receive them, and allow the commissions ? The service was performed, and the policy of the law is to encourage returns and accounts, by executors, and administrators, before the ordinary. It seems to me, that in such a case, the commissions ought to be allowed.
    Another objection was made, that Jesse M. Howell, the administrator of John Howell, did not make the return of the pecuniary transactions of the estate of Goodwyn, for the year 1825, for which the commissions were allowed, until November, 1826; whereas, they should have been made at the first Court of Ordinary for that year.
    The 28th section of the statute enacts, that executors, and administrators, shall, annually, whilst the estate shall remain in their care, or custody, at the first Court to be held after the first day of January, render to the Court of the county, or ordinary, of the district, from which they obtain probate of will, or letters of administration, a just and true account, upon oath, of the receipts and expenditures of such estate, the preceding year : and if any such executor, or administrator, shall neglect to render such annual account, he shall not be intitled to any commissions for his trouble, in the management of the estate, and shall, moreover, be liable to be sued for damages, by any person, or persons, interested in- the said estate. P. L. 495.
    The letter of the statutory provision does seem to require the return to be made at the first County Court, or Court of Ordinary, held after the first day of January, in each year ; but yet it is obvious, that the provision had reference mainly to the County Court system, which then existed, and had regular times of meeting, but have since been abolished. There are, in fact, no stated periods for holding the Courts of Ordinary ; and if the statute should be rigidly applied to these transactions, then a sitting of the Court of Ordinary, called for some special purpose, on the next day after the first day of January, without general notice of its sitting, which • . , „ , . . c .. . , is never given, might cut off the claim of all the executors, and administrators, in the district, however regular their accounts, and habits of accounting. There is an additional reason for not applying such a rule of construction to cases like the present, which is furnished by the statute itself; for, by one of its provisions, on the death of a party, time is given to his representatives to do acts, which he, himself, if living, would have been compelled to do earlier.
    Besides, this provision is in the nature of a penalty ; for it not only works a forfeiture of commissions, but subjects the executor, or administrator, to a suit for damages, and, therefore, must be construed strictly. It might be added, that it has not been shewn, by proof, that there was any regular Court of Ordinary held in the district prior to November, 1826, when the return was made.
    Upon the whole, I am of opinion, that the defendant is intitled to the commissions which have been allowed by the commissioner; and the exception is, therefore, overruled.
    From this decree the complainants appealed, and moved that it might be reversed, on the following grounds :
    1. That executors, and administrators, who fail to make annual returns, are not intitled to commissions.
    2. That commissions are intended as a compensation for the several duties required by law ; and unless all those duties are performed, commissions are not to be allowed.
    3. That none but the executor, or administrator, can perform those duties, so as to be intitled to commissions ; and his adminis. trator is not competent to make a legal return, so as to give a right to the commissions.
    CiiArrEiii., for the motion.
    W. F. De Saussuee, contra.
    
   Harper, J.

We agree with the Chancellor on the principles of his decree, which are the subject of appeal. The act of 1789 declares, that executors and administrators, shall annually, « at the first court to be held after the first day of January, render to the Court of the county, or ordinary of the district,” an account on oath; and if he shall neglect to render such annual account, he shall not be intitled to any commissions.” P. L. 495. A distinct clause gives to executors, and administrators, a compensation, not exceed‘n& fifty shillings in the hundred pounds, on all moneys re* cetyed» and Pa*d away. Ib. It is not a condition, precedent to the allowing of commissions, that an account shall be rendered; but they are afi°wed> on afi sums received, and paid away, subject only to be forfeited, if the executor, or administrator, shall neglect to render an account. In the case supposed by the Chancellor, where an executor, or administrator, conducts large pecuniary concerns of an estate, and receives and pays away considerable sums of money,, and enters them regularly in his books, but dies at, or near the end of the year, it cannot be said, that he has neglected to return his accounts. The time for rendering the annual account had not arrived, and there was no neglect. From the necessity of the case, the account can then be rendered only by his personal representative.

As County Courts are no longer in existence, and as there are no stated times for holding the Court of Ordinary, the direction of the act, that the account shall be rendered at the first Court, to be held after the first day of January, can no longer have any effect ; and it has been long settled in practice, that returns may be made at any time of the year. It has been also settled, by repeated decisions, that if an executor, or administrator, makes returns for some years, and neglects to do so for others, he shall be allowed commissions for the years for which he makes returns, and for those only. It follows, that however long he may have neglected to render accounts, if he thinks proper at last to do so, he will be allowed commissions on the amounts received, and paid away, for one year preceding the rendering of such account. Up to the time of his death, if John Howell had thought proper to make a return, he would have had commissions for one year, preceding ; and what John Howell, at the time of his death, might do, his administrator, representing him, had a right to do afterwards.

As to the length of time, within which an administrator of an executor, or administrator, may, by making a return, intitle his testator’s, or intestate’s es'tate, to commissions, that, I think, must be determined by the clause of the act, which provides, that executors, and administrators, “ shall be allowed twelve months, to ascertain the debts due to and from the deceased, to be computed from the probate of the will, or granting letters of administration.” P. L. 494. Of necessity, some time must be allowed ; and there is no other limit than this. We think, then, that by making a return, at any time within one year after probate, or the granting of administration, the administrator of an executor, or administrator, may in-title hia testator’s, or intestate’s estate, to commissions, for the trans. actions of one year preceding the testator’s, or intestate’s death.

It does not appear to us, at what time administration was granted to the defendant, Jesse M. Howell. The return was made by him, within one year and one month after his intes.tate’s death : for the decree states the intestate to have died in October, 1825, and the return to have been made in November, 1826. It is very improbable, and barely possible, that administration may have been taken out, in less than a month after his death. I must suppose this matter to have appeared to the Chancellor. The motion is therefore dismissed. .

Johnson, J., and O’Neall, J., concurred.

Decree affirmed.  