In re Ledbetter

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

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.