Satterwhite v. Littlefield et ux.

fendant in the court below to compel Stinson, the defendant in error, to give security for the costs of the suit.

The motion was predicated on the provision of the statute in regard to actions at law commenced in the name of any person not a resident of this state.

At the return term of the writ in this case, the sixty-day rule was taken against the plaintiff, who failed to give the security required. At the succeeding term, the defendant entered his motion to dismiss the cause, on the ground of this failure; which motion was overruled, the plaintiff tendering the requisite security.

In this there was no error. The object of the statute was to secure the payment of the costs which might be adjudged to the defendant, in case the plaintiff failed to obtain judgment, and the fees which were or might become due to the officers of court. In this, as in all similar cases, the circuit courts are vested with a discretionary authority. The purpose of the statute was fully attained by the giving of the security, and that discretion was properly exercised in disallowing the motion, and permitting the security to be given. Judgment affirmed.

JAMES S. SATTER WHITE, Administrator of James Satterwhite, vs. F. Littlefield et uxor.

An administrator, as such, and by virtue of the law of this state, has no power to collect assets of the estate in another state; but if he do so, and bring such assets into this state, and subject them voluntarily to the order of the court of probates in this state, they must be governed by the same rules with the assets in this state.

An administrator, by the laws of this state, is entitled to a commission of from one to ten per cent. on the whole amount of assets administered, for his compensation, to be allowed by the decree of the probate court; this is his whole compensation for the labor, expense, and responsibility of the administration.

Satterwhite v. Littlefield et ux.

An administrator cannot, therefore, be allowed any thing for his expenses incurred in the administration of the estate, nor for lawyers' fees incurred by him in the course of his administration, to enable him to administer the estate properly; but if he have to bring suits for the estate, or defend those brought against it, he is entitled to employ counsel for that end, and pay for the services out of the estate.

It seems, however, that if an administrator have charged the estate with travelling expenses and counsel fees, and, in allowing his account, the probate court do not allow the entire sum charged by the administrator to have been paid out by him, and the administrator appeal therefrom, the high court of errors and appeals will not set aside the allowance in his favor, as the distributees made no objection to it.

If, after twelve months from the grant of administration, the administrator permit money to lie on hand without any good reason, or if he use the money himself, he will be liable for interest; he himself must show the necessity or reason for keeping it. The probate court is not bound by the rules which regulate proceedings in chancery; it may refer an administrator's account to the clerk to report thereon, and, without waiting for the report, may examine and decree upon the account directly; and, if the decree be otherwise correct, it will not be disturbed because rendered before the clerk made his report.

It is in the discretion of the probate court to fix the amount of the commissions allowed administrators and executors within the limits fixed by law; it is so much a matter of discretion with the probate court, that the high court of errors and appeals would not interfere with an allowance by that court, unless where there had been a manifest abuse; and in this case it did not so consider an allowance of three per cent.

ON appeal from the probate court of Panola county; Hon. J. T. M. Burbridge, judge.

The facts will be found stated in the opinion.

S. B. McKee, for appellant,

1. On the point for the allowance of expenses and lawyers' fees, cited 15 Ves. 277; 2 Atk. 126; Wm's Ex'r, 1138, 1141; North, Prob. 171, n.; The Bank v. Trapier, 2 Hill, Ch. 26; 2 Daniel's Ch. Pr. 1430.

2. The administrator should not have been charged with interest. Dunscomb v. Dunscomb, 1 Johns. Ch. R. 508; Manning v. Manning, Ib. 527; Brown v. Ricketts, 4 Ib. 305; Wm's Ex'r, 1132; Toller, Ex. 480; North, 167, n.; De Peyster v. Clarkson, 2 Wend. 77.

Satterwhite v. Littlefield et ux.

3. The court should not have made a final decree without the report of the clerk. 2 Dan. Ch. Pr. 1486.

Mr. McKee argued, also, the points presented by the record, and reviewed the proof.

Watson and Clark, for appellee,

On the subject of interest, cited Chilton on Prob. Courts, 361; 10 Yerg. 160; 8 S. & M. 682.

They insisted that the decree in other respects was correct.

Mr. Justice CLAYTON delivered the opinion of the court.

The questions in this case grow out of certain exceptions taken by the plaintiff in error, in the settlement of his account as administrator of his father, James Satter white, deceased, in the probate court of Panola.

The first is, to the refusal to allow the administrator $150 for expenses in travelling to and from Georgia, in order to collect debts there due to the estate. In point of fact, the court allowed $112.50 for this purpose, so that the objection only extends to the residue. There was proof as to the usual amount of expenses in travelling to and from that part of Georgia, and the court decided according to the proof. We are not disposed to disturb the order upon the proof; and as the defendants in error have filed no exception to the allowance as made, we shall not interfere with it in their behalf. We may be permitted to say, however, lest the case should be drawn into a precedent, that the entire charge is of very doubtful propriety. An administrator, as such, and by virtue of the law of this state, has no power to collect assets in another state. They are subject to the jurisdiction of the courts of that state in which they are situated. On this point, the supreme court of the United States said: "Every grant of administration is strictly confined, in its authority and operation, to the limits of the territory of the government which grants it, and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased in any other state; and whatever operation is allowed to it, beyond the original ter

Satterwhite v. Littlefield et ux.

Vaughn v.

ritory of the grant, is a mere matter of courtesy." Moody's Adm'r, 15 Peters, 1. But if the administrator in this state really collect assets in another state, bring them here, and subject them voluntarily to the order of the court of probates in this state, they must be governed by the same rules with the assets in this state. If he claim any other compensation or reimbursement for expenses than that which the statute prescribes, it can only be sustained on the ground of some agreement with the distributees. Otherwise, he might get indirectly far more than the seven per cent. as commissions, or for charges which the law seems sedulously to guard as the utmost limit of charge against the estate.

Unless there be some law or usage in Georgia, by courtesy, giving the power of collection to foreign administrators, there must by law have been a new ancillary administration there; and after the settlement of the assets there, according to the laws of that state, and after deducting the costs of administration there, the balance would be payable to the principal administrator here, for distribution according to the laws of this state. Garland, Ex'r, v. Rowan, 2 S. & M. 636.

The course pursued in this instance secured the end in a more direct way, but the probate court had no jurisdiction of the assets till they were brought into this state, and consequently no right to allow for expenses-not authorized by law, incurred beyond the limits of the state. But, as before stated, we shall not interfere with the charge allowed, because the defendants in error do not complain of it.

The next exception is to the refusal to allow $75, paid by the administrator to an attorney for advice and counsel in regard to the administration.

By the English law, executors and administrators are not entitled to compensation for their services, trouble, or loss of time, in the performance of their duties; but they are allowed all reasonable expenses incurred in the conduct of their office. 2 Wm's Ex'rs, 1314. By our statute, a compensation, if not less than one, nor more than seven, per cent. on the whole amount of assets administered, is secured to them. Pamphlet

Satterwhite v. Littlefield et ux.

Acts, 1844, p. 121. This allowance, left discretionary with the court of probates, between the extremes indicated, is intended to cover all their compensation. Within this limit it may be made to vary according to circumstances. Out of it they must pay their own expenses, and fees of counsel for advice touching their duty in the conduct and management of the estate. But if there should be suits, for or against the estate, which make it necessary to employ counsel, those fees must be paid by the estate. But when counsel are employed to give advice as to the correct course of duty of the executor or administrator, the fees must be paid by him individually, out of his own compensation. If he have not the requisite knowledge to discharge the duties of the office he undertakes, he must pay for its acquisition himself. His commissions are intended to cover all the charges which he is authorized to make against the estate in the course of administration. In this instance, fifty dollars were allowed for the payment of counsel fees; the distributees do not complain of this, and we shall let it stand unchanged.

The next exception is, as to a charge of interest upon a certain sum of money in the hands of the administrator, from the 18th December, 1848, up to the final settlement. The administration was granted in June, 1846, the money was received in December, 1846, and it thus appears that interest was not charged until more than twelve months after grant of administration, and after the money was in his hands. After twelve months from the grant of administration, the amount was liable to distribution. Hutch. Code, 665. It is not possible, perhaps, to lay down any general rule as to instances in which interest should or should not be charged. But if, after twelve months, when distribution may be lawfully made, the administrator permits money to lie on hand without any good reason, or if he uses the money himself, he will be liable for interest. He must himself show the necessity or reason for keeping it. Chilton, Prob. Court, 347, 360; Jones v. Ward, 10 Yerg. 163.

Another objection taken to the decree is, that the court, after making an order of reference of the account to the clerk, afterwards proceeded to make a final decree without a report from the clerk.