Hosack v. Rogers , 2 Sarat. Ch. Sent. 10 ( 1842 )

Exceptions to master’s report. In this case the chancellor decided that where a trustee is entitled to costs, and there is a fund under the control of the court, he may be allowed his costs as between solicitor and client, out of such fund. But that the master, in taking an account in anticipation of a decree, and before the question of costs has been disposed of by the court, is not authorized to credit the trustee with fees paid to his counsel in that particular suit; unless he was directed to do so in the order of reference.

That where a surrogate refuses to allow an executor his costs for resisting a successful application to compel the executor to give security, the latter cannot charge them against the estate. Nor where the executor has been charged personally with the costs can he charge them against the estate, in his accounts.

That this court will relieve parties against the injustice occasioned by its own acts or oversights at the instance of the party against whom the relief is sought. And that upon this principle where a creditor entitled to receive a payment of interest towards his debt has been prevented from receiving it by an injunction, he will be allowed interest upon the amount, from the service of the injunction.

That an executor is not entitled to commissions upon the periodical rests in his accounts, so as to give him full commissions each time a balance in the account is struck.

That an executor is only entitled to a commission, on moneys received, of one per cent on the first thousand dollars, two and a half per cent on the next four thousand dollars, and one per cent on all sums above that.

That the commissions of the executor should be computed and deducted at the time of the settlement of his accounts, except in those cases where periodical settlements or rests are directed to be made. But that where the executor is a credit- or of the estate if he receives moneys and applies them in part payment of his debt, his commissions may be first deducted from the amount.

That an executor or other trustee, during the pendency of a suit for an account and distribution of the fund in his hands, should either ask for leave to pay it into court, or to invest it under the direction and sanction of the court.

Case referred back to the master to re-stato the accounts, upon the principles of this decision; without costs to either party as against the other, or to the executor as against the fund.