Worsham v. Worsham's Adm'r

9 Ky. Op. 37, 1876 Ky. LEXIS 308

• Court: Court of Appeals of Kentucky
• Decided: March 13, 1876
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The appellee was properly allowed the additional credit for the $7,000 note on Thomas. The proof tends to show that said note was worthless, and it is clear that it has not been collected, notwithstanding reasonable diligence upon the part of appellee.

But we are satisfied that the amount allowed him in the way of commission is excessive. His own testimony shows that the difficulties in the winding up of the estate in his hands were slight. One-half the amount received and paid out was collected for him without charge by the bank at Stanford. He wa.s allowed his traveling expenses on the two- trips taken to the south. He avoided personal liability for his acts, by obtaining the approval of Mrs. Worsham to each and every settlement involving a controversy, and he turned over to her, without recourse upon him, the two notes on Toler, as so much cash.

He should have been allowed no commissions on the two notes, and should have had no commission- on the amount retained to pay himself the debts due him by the testator. Excluding the commission on these amounts, he will receive pay at the rate of over $150 per month for over six months continuous service. It is evident that he did not devote that length of time to the business of settling the estate, and that the rate suggested is at least reasonable compensation for his services.

Hill & Alcorn, A. J. James, for appellant. Sauñey & Warren, for appellee.

Instead of rendering judgment against appellant for $324.52, her petition and the cross-petition of appellants should each have been dismissed, and appellee should have had judgment for his costs. The judgment is reversed and the cause remanded for a judgment conformable to this opinion.