In re Waring

1 Goebel 146

• Court: Hamilton County Probate Court
• Decided: December 16, 1887
• Status: Published

Opinion

Goebel, J.

This cause is submitted to me upon exceptions to two accounts. The principal exceptions are to attorneys’ fees, allowance for extraordinaiy services to the administrator, and statutory allowance to the administrator de bonis non.

Upon full consideration I do not think that the attorneys’ fees or the allowance for extraordinary services made to the administrator are excessive. The exceptions to these items will be overruled.

The administrator de bonis non, in. his account filed, charges himself with the amount received from the administrator of the former administrator of this estate, and in addition thereto the account shows that he collected about nine hundred dollars. Upon these amounts he has charged the statutory allowance, namely, six per cent, on the first thousand, and -four per cent, upon the next four thousand. This he is clearly not entitled to. Where an administrator has once charged the statutory allowance and is succeeded by an administrator de bonis non, such administrator de bonis non is not entitled to again charge upon an amount which had already been subjected to a charge, six per cent, upon the first thousand, four per cent, upon the next four thousand, and two per cent., upon any balance; but may charge the percentage that the preceding administrator may or could have charged upon money subsequently collected.

To this extent the exception will be sustained, and the administrator de bonis non will be entitled to charge two per cent, upon the money which came into his hands since the death of the former administrator.

I am reminded by counsel that section 6188 of the Revised Statutes makes no distinction between an administrator and an administrator de bonis non in fixing their statutory compensation. It is true that the statute does not say an administrator de bonis non shall or shall not receive the percentage. The statute, however, says that six per cent, shall be allowed upon the first thousand, four per cent, upon the next four, and two per cent, upon the balance. That clearly means it shall be once allowed, and not allowed to every succeeding administrator, for otherwise you aré subjecting an estate to two or more commissions, depending altogether upon the number of persons called upon to administer, and thereby permitting a greater percentage to be paid than the law would have authorized had there been but one administrator. In contemplation of law there is but one estate, although there may be more than one administrator. In this case the administrator de bonis non received a large amount from the former administrator, upon which had been charged the statutory commissions. While there is a responsibility in receiving and paying this money by the administrator de bonis non, for which the court may make an allowance, I am clearly of the opinion that the statutory commissions can not be again charged upon this amount.