Farneyhough's ex'ors v. Dickerson , 2 Va. 582 ( 1843 )

Stanakd, 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 byjihe 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.