In re Ledbetter

Supreme Court of North Carolina

In re Ledbetter

70 S.E.2d 667, 235 N.C. 642, 1952 N.C. LEXIS 439

CourtSupreme Court of North Carolina

DecidedMay 21, 1952

StatusPublished

Cited by3 cases

This text of 70 S.E.2d 667 (In re Ledbetter) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Ledbetter, 70 S.E.2d 667, 235 N.C. 642, 1952 N.C. LEXIS 439 (N.C. 1952).

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Opinion

EeyiN, J.

In tbe absence of an effective testamentary provision on tbe subject, tbe right of tbe personal representative of a decedent to compensation is controlled by tbe statute now codified as G.S. 28-170.

Under this statute, tbe clerk of tbe Superior Court having jurisdiction in tbe particular case has tbe discretionary power of allowing an executor or administrator commissions not exceeding five per cent upon tbe amount of bis “receipts . . . and . . . expenditures.” The terms “receipts” and “expenditures,” as used in tbe statute, refer to tbe actual receipts and tbe actual expenditures of tbe personal representative. Tbe administrator in tbe instant case has no lawful claim to commissions on tbe credits or offsets deducted by tbe consent judgment from tbe indebtedness of bis testate to tbe banks. This is necessarily so for tbe very simple reason that tbe deductions were neither actually received nor actually expended by tbe administrator. Walton v. Avery, 22 N.C. 405; 34 C.J.S., Executors and Administrators, section 865 (b).

Tbe order of Judge Phillips is

Affirmed.

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EeyiN, J.

In tbe absence of an effective testamentary provision on tbe subject, tbe right of tbe personal representative of a decedent to compensation is controlled by tbe statute now codified as G.S. 28-170.

Under this statute, tbe clerk of tbe Superior Court having jurisdiction in tbe particular case has tbe discretionary power of allowing an executor or administrator commissions not exceeding five per cent upon tbe amount of bis “receipts . . . and . . . expenditures.” The terms “receipts” and “expenditures,” as used in tbe statute, refer to tbe actual receipts and tbe actual expenditures of tbe personal representative. Tbe administrator in tbe instant case has no lawful claim to commissions on tbe credits or offsets deducted by tbe consent judgment from tbe indebtedness of bis testate to tbe banks. This is necessarily so for tbe very simple reason that tbe deductions were neither actually received nor actually expended by tbe administrator. Walton v. Avery, 22 N.C. 405; 34 C.J.S., Executors and Administrators, section 865 (b).

Tbe order of Judge Phillips is

Affirmed.

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Bluebook (online)

70 S.E.2d 667, 235 N.C. 642, 1952 N.C. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ledbetter-nc-1952.

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