Mr. Justice Shepard
delivered the opinion of the Court:
1. The first exception to the account is on the failure of the administrator to charge himself with interest on the $10,000 found, by the award to have come into his hands April 18, 1884. We are of opinion that this exception should have been sustained.
[349]*349The administrator confessed the receipt of the money on that date, and the decree referring the matter to arbitration,to which he consented, expressly provided that interest should be charged from the date of receipt. These $10,000 were not paid into court with the remaining money of the estate, but; as we have seen, were represented as divided between the four sisters of the administrator on account of their shares in the estate under the will, according to their several receipts dated February 25, 1885. The arbitrators to whom these receipts were exhibited had nothing to do with the collection of the fruid reported by them' as due the estate. No order for its distribution was ever made and nothing entered of record that indicates an approval of the action of the administrator.
But as the validity of the will had not then been contested, and the distributees were all special and residuary legatees and entitled to far more than the amounts so paid them, there would seem to be no reason why the administrator should not be credited with the payments so made to them and as of that date. Notwithstanding the extraordinary proceedings through which, with his own express consent, he had been deprived of the actual custody and administration of the assets of the estate, as well as the insufficient bond that he had first given, he was still administrator of the estate in name by the recognition of the court. He should therefore be charged with interest on the said $10,000 from April 18, 1884, to February 25, 1885, at the legal rate of 6 per cent, per annum.
The four legatees who received equal shares of the $10,000, according to their receipts, should be charged with the same, as of that date, as credits upon their respective legacies; but not as residuary legatees as has been contended on their behalf. That would be unjust to the remaining residuary legatees. The special legacies to these four persons, and their brother, the administrator, bear interest after one year from the death of the testator, and it is [350]*350right that those who received the payments should have them charged to that account. In the absence of any order for the distribution "of the fund in any other way the presumption ought to be that it was on account of the interest-bearing legacies which are.the first charge upon the estate in the 'hands of the administrator.
In restating the account the said payments will be credited upon the special legacies of the payees as of the date of receipt; and. the interest due by the administrator upon the said $10,000 will be charged against his special legacy also, as of the same date.
2. The second exception relates to the attorneys’ fees that were paid out of the funds of the estate, to Messrs. Henkle and Totten, in obedience to the orders hereinabove mentioned. No doubt, as contended'on behalf of the appellant, the regular order of proceeding therein should have been an application filed, under the leave given in the last four of said orders, to charge the said sums against the estate.
No such application was made, and the administrator began his account with the assets of the estate as turned over to him by the quasi-receivers when relieved of their trust.
Thereby, without change in the orders charging those disbursements to the special legatees, they were transferred to the estate. Considering, however, the want of technical formality that must, from their nature, naturally prevail in such proceedings in the Orphans’ Court, together with the fact that opportunity was given to present exceptions to the account, on that ground as well as others, the final order approving the account and ordering distribution should be regarded as amending or vacating the former orders.
There can be doubt under the Probate Act of 1798, that, after a will has been admitted to probate, it is the duty of the executor .to appear to a caveat filed against it, and make defense on behalf of those interested in the will; and, necessarily,- he is entitled to a reasonable allowance for attorneys’ charges incurred therein. Act of 1798, Ch. 101, Subch[351]*35110, Sec. 2; Compton v. Barnes, 4 Gill, 55; Glass v. Ramsey, 9 Gill, 456; Townshend v. Brock, 9 Gill, 90, 92; Gorton v. Perkins, 63 Md. 589, 590.
We can see no reason why the same rule should not be made to apply in this case, to the administrator with the will annexed. He was appointed to execute the will because the testator neglected to name an executor. All the duties of ah executor devolved upon him in the administration of the estate under the will. The interests of all the parties to the controversy, as legatees, depended upon the final establishment of the will, and it became the duty of the administrator to defend it when assailed. There is nothing in the record to show that the fees charged against the estate were excessive or unreasonable, and hence the court did not' err in overruling the exceptions in respect of the second payment to S. S. Henkle and the three payments to Enoch Tot-ten on account of their services in the contest of the will.
The first payment to S. S. Henkle of $500, made March 6, 1886, appears in a different light. This money was ordered paid upon the petition of the special legatees, wherein they recited their special interests under the will and in the contest of the same, and that they had retained S. S. Henkle “who for some months past has been managing their interests.”
The order directed the payment to be made and charged to the distributive shares of the petitioners.- There was no leave given in the order to move subsequently to have the payment charged to the estate. This item seems to have been overlooked in the settlement of the account. It is not included in the account of the special custodians of the fund, because the disbursement was made from the funds in the registry of the court before their appointment. In restating the account this item should be brought in and charged to the said special legatees as provided in the order for its payment.
3. The third exception is taken to the commissions claimed [352]*352by, and allowed to, the administrator in settling his final account. These it is conceded amount to more than 5 per cent, of the cash value of the assets of the estate. Under any view of the question the allowance of more than 5 per cent, was error.
The statute limits the commissions that may be allowed an administrator to' 10 per cent. Now, as a commission of 5 per cent, has been allowed and paid to the quasi-receivers, that amount must be reckoned in any allowance subse-quently made to the administrator. It is not' to be treated as an independent allowance to regularly appointed collectors of the estate, as was the case in Wilson v. Wilson, 3 G. & J. 20. Grant that there was no authority of law for surrendering the assets of the estate to those receivers for administration, but as the administrator consented thereto, and to the allowance made to them for the performance of his duties, he can not now deny that the commission was paid to them as his representatives, in the course of the administration of the estate.
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Mr. Justice Shepard
delivered the opinion of the Court:
1. The first exception to the account is on the failure of the administrator to charge himself with interest on the $10,000 found, by the award to have come into his hands April 18, 1884. We are of opinion that this exception should have been sustained.
[349]*349The administrator confessed the receipt of the money on that date, and the decree referring the matter to arbitration,to which he consented, expressly provided that interest should be charged from the date of receipt. These $10,000 were not paid into court with the remaining money of the estate, but; as we have seen, were represented as divided between the four sisters of the administrator on account of their shares in the estate under the will, according to their several receipts dated February 25, 1885. The arbitrators to whom these receipts were exhibited had nothing to do with the collection of the fruid reported by them' as due the estate. No order for its distribution was ever made and nothing entered of record that indicates an approval of the action of the administrator.
But as the validity of the will had not then been contested, and the distributees were all special and residuary legatees and entitled to far more than the amounts so paid them, there would seem to be no reason why the administrator should not be credited with the payments so made to them and as of that date. Notwithstanding the extraordinary proceedings through which, with his own express consent, he had been deprived of the actual custody and administration of the assets of the estate, as well as the insufficient bond that he had first given, he was still administrator of the estate in name by the recognition of the court. He should therefore be charged with interest on the said $10,000 from April 18, 1884, to February 25, 1885, at the legal rate of 6 per cent, per annum.
The four legatees who received equal shares of the $10,000, according to their receipts, should be charged with the same, as of that date, as credits upon their respective legacies; but not as residuary legatees as has been contended on their behalf. That would be unjust to the remaining residuary legatees. The special legacies to these four persons, and their brother, the administrator, bear interest after one year from the death of the testator, and it is [350]*350right that those who received the payments should have them charged to that account. In the absence of any order for the distribution "of the fund in any other way the presumption ought to be that it was on account of the interest-bearing legacies which are.the first charge upon the estate in the 'hands of the administrator.
In restating the account the said payments will be credited upon the special legacies of the payees as of the date of receipt; and. the interest due by the administrator upon the said $10,000 will be charged against his special legacy also, as of the same date.
2. The second exception relates to the attorneys’ fees that were paid out of the funds of the estate, to Messrs. Henkle and Totten, in obedience to the orders hereinabove mentioned. No doubt, as contended'on behalf of the appellant, the regular order of proceeding therein should have been an application filed, under the leave given in the last four of said orders, to charge the said sums against the estate.
No such application was made, and the administrator began his account with the assets of the estate as turned over to him by the quasi-receivers when relieved of their trust.
Thereby, without change in the orders charging those disbursements to the special legatees, they were transferred to the estate. Considering, however, the want of technical formality that must, from their nature, naturally prevail in such proceedings in the Orphans’ Court, together with the fact that opportunity was given to present exceptions to the account, on that ground as well as others, the final order approving the account and ordering distribution should be regarded as amending or vacating the former orders.
There can be doubt under the Probate Act of 1798, that, after a will has been admitted to probate, it is the duty of the executor .to appear to a caveat filed against it, and make defense on behalf of those interested in the will; and, necessarily,- he is entitled to a reasonable allowance for attorneys’ charges incurred therein. Act of 1798, Ch. 101, Subch[351]*35110, Sec. 2; Compton v. Barnes, 4 Gill, 55; Glass v. Ramsey, 9 Gill, 456; Townshend v. Brock, 9 Gill, 90, 92; Gorton v. Perkins, 63 Md. 589, 590.
We can see no reason why the same rule should not be made to apply in this case, to the administrator with the will annexed. He was appointed to execute the will because the testator neglected to name an executor. All the duties of ah executor devolved upon him in the administration of the estate under the will. The interests of all the parties to the controversy, as legatees, depended upon the final establishment of the will, and it became the duty of the administrator to defend it when assailed. There is nothing in the record to show that the fees charged against the estate were excessive or unreasonable, and hence the court did not' err in overruling the exceptions in respect of the second payment to S. S. Henkle and the three payments to Enoch Tot-ten on account of their services in the contest of the will.
The first payment to S. S. Henkle of $500, made March 6, 1886, appears in a different light. This money was ordered paid upon the petition of the special legatees, wherein they recited their special interests under the will and in the contest of the same, and that they had retained S. S. Henkle “who for some months past has been managing their interests.”
The order directed the payment to be made and charged to the distributive shares of the petitioners.- There was no leave given in the order to move subsequently to have the payment charged to the estate. This item seems to have been overlooked in the settlement of the account. It is not included in the account of the special custodians of the fund, because the disbursement was made from the funds in the registry of the court before their appointment. In restating the account this item should be brought in and charged to the said special legatees as provided in the order for its payment.
3. The third exception is taken to the commissions claimed [352]*352by, and allowed to, the administrator in settling his final account. These it is conceded amount to more than 5 per cent, of the cash value of the assets of the estate. Under any view of the question the allowance of more than 5 per cent, was error.
The statute limits the commissions that may be allowed an administrator to' 10 per cent. Now, as a commission of 5 per cent, has been allowed and paid to the quasi-receivers, that amount must be reckoned in any allowance subse-quently made to the administrator. It is not' to be treated as an independent allowance to regularly appointed collectors of the estate, as was the case in Wilson v. Wilson, 3 G. & J. 20. Grant that there was no authority of law for surrendering the assets of the estate to those receivers for administration, but as the administrator consented thereto, and to the allowance made to them for the performance of his duties, he can not now deny that the commission was paid to them as his representatives, in the course of the administration of the estate.
Under ordinary circumstances, the allowance of commissions to an administrator, within the statutory limits, is a matter of discretion with the orphans’ court, the exercise of which will not be reviewed. Sinnott v. Kenaday, ante, p. 1; Nichols v. Hodges, 1 Pet. 562.
There are special circumstances in this case, hpwever, sufficient to create -an exception to the foregoing rule. At the very beginning of his administration, as we have seen, the administrator, by his own consent, was shorn of all'actual responsibility for the collection and preservation of the estate. It is true that he was allowed by the same order to continue “to act as administrator;” but upon the express condition that this should be “without allowance for commission or other charge for his services as such administra tor.” It is contended, on behalf of the administrator, that a contract or agreement of an administrator to act without charge for his services is without consideration as well as [353]*353against public policy, and therefore not enforceable. Apparently the consideration in this case was the empty title of administrator that was permitted to be retained through this extraordinary proceeding.
Having expressly agreed to relinquish all claim to commissions as the price of this equivocal recognition, we think that he ought not now to be allowed to deny the obligation of that relinquishment. The cases cited on behalf of the administrator do not support his contention. Eversfield v. Eversfield, 4 H. & J. 12; Richardson v. Stansbury, 4 H. & J. 275. Doubtless there may be circumstances under which a declaration that no commissions would be demanded by an administrator, would not be regarded as binding; but they do not exist in this case. In Eversfield v. Eversfield, supra, there was no agreement that commissions would not be demanded. At the time of procuring certain allowances for expenses, the executrix stated that she would not make a claim for commissions; but no such condition was imposed in the order therefor, and it was held that she was not bound by the declaration. In Richardson v. Stansbury, supra, there were two executors, but one of them had the entire management of the estate. He refused to divide the commissions allowed by the court with his coexecutor, who thereupon sued him, and was permitted to recover his portion. In commenting upon that case it was afterwards said, that had there been an agreement between the executors that one might retain the commissions in consideration of his exclusive management of the estate, it would have been upheld. Brown v. Stewart, 4 Md. Ch. 368, 371. See, also, McKim v. Duncan, 4 Gill, 85.
Again, all that remained to be done when the assets were redelivered to the administrator, was to settle the final account and procure an order of distribution. The litigation over the will had ended in its establishment. The labor and responsibility of administration were practically ended. And it is apparent that the full recognition of the adminis[354]*354tratqr was for tlie purpose of closing the administration by distribution.
4. Three of the special exceptions have been argued together, as they relate to the construction of the will in making the distribution of the estate among the special and residuary legatees.
(1) The first point made is that the orphans’ court has no jurisdiction beyond the probate of a will and the distribution of the estate when no construction of the will is required therefor. As the will in this case requires interpretation, in order to determine the respective interests of the legatees which are in dispute, the contention is that resort must be had to a court of equity. In this view we can not concur. Undoubtedly the orphans’ court has but a limited jurisdiction in matters of probate and administration, and is not a court of construction. But it is expressly vested with jurisdiction “for the purpose of . . . directing the conduct and settling the accounts of executors and administrators, securing the rights of legatees, superintending the distribution of the estates of intestates, securing the rights of orphans and legatees, and administering justice in all matters relating to the affairs of deceased persons according to law.” Chap. 101, Subch. 15, Sec. 1. Other sections provide for calling together distributees and legatees, and section 12 provides: “The orphans’ court shall have full power, authority and jurisdiction to examine, hear, and decree upon all accounts, claims, and demands, existiog between wards and their guardians, and between legatees, or persons entitled to any distributable part of an intestate’s estate, and executors and administrators, and may enforce obedience to, and execution of their decrees in the same ample manner as a court of chancery may.”
The power to make settlements, secure legatees and order distribution of the estate must include, by necessary implication, the power to construe the provisions of the will in so [355]*355doing. McLane v. Cropper, 5 App. D. C. 276, 292; Sinnott v. Kenaday, 12 App. D. C. 115, 121, and cases cited.
Whether an order so made may be subsequently reviewed by a proceeding in a court of general jurisdiction, is a question that we are not now called upon to decide.
(2) In construing the clause of the will giving to the children of the testator’s brother Edwin the sum of $1,360.64, with interest calculated at 6 per cent, per annum from July 1, 1854, to the date of the testator’s death, the court was clearly right. The terms of the will are plain and admit of no doubt. The bequest is to each of them and is a first charge upon the fund.
(3) It seems equally clear also that the court did not err in the construction of the residuary clause of the will. The provision that the residue of the estate “be equally divided between my brothers Edwin and Charles’ children,” can only be satisfied by a division per capita. The children of Edwin and Charles are not divided into classes, but made one. Maddox v. State, 4 H. & J. 539; Brittain v. Carson, 46 Md. 186. In the first of those cases the bequest was: “To be equally divided between my brother Justinian and my brother,George’s children.” In the second it read: “Shall be equally divided between my said daughter and the children of Virginia Carson.” In both the distribution was ordered to be made per capita. See, also, Benson v. Wright, 4 Md. Ch. 278; Allender v. Keplinger, 62 Md. 7.
5. Under the next exception in order, it appears that whilst the assets were in the hands of the attorneys, an order was made authorizing a loan of $5,000 to Charles Q. Duncanson. His note was taken for that sum with 6 per cent, interest payable semi-annually, and secured by a deed of trust. This note passed into the possession of the administrator with the other securities of the estate. In his final settlement he has failed to account for one or more instalments of interest accruing due prior to the order therefor. As there is nothing in the record by which it can be determined that [356]*356this interest had or could have been collected, it is sufficient to say that, in restating the account, the administrator should be charged with the several instalments of interest unless it be made to appear that they could not be collected by the use of reasonable diligence.
6. The last exception for consideration was taken to the - omission of the administrator to charge himself with interest upon the sum of $1,419.73, shown by the account to have come into his hands' on or before February 27, 1891. ■
It appears that the administrator received from the Pennsylvania Railway Company in July, 1889, certain stock therein that had been issued as a dividend upon stock held by the testator. The money aforesaid consisted of cash dividends collected upon that stock. Neither this additional stock nor the cash dividends collected thereon had been delivered by him to the then custodians of the estate as required by the order. Had this money been turned over to them it might have been invested along with other funds under the direction of the court. It remained, however, in the possession of the administrator and subject to his private use, for there is nothing to show its use, or reservation for the probable needs of the estate.
If it be not shown that the money was used or kept for the necessary benefit of the estate, the administrator should be charged with interest upon it; or it may be applied as a credit upon his special legacy as of the date of its receipt by him.
For the reasons given, the order appealed from will be reversed, with costs to be charged to the estate, and the cause remanded for further proceedings in settlement of the account and final distribution, not inconsistent with this decision. It is so ordered.
Reversed.