In re Estate of Walker

• Decision Date: 04 June 1923
• Citation: 13 Del.Ch. 439,122 A. 192
• Court: Court of Chancery of Delaware
• Parties: In the Matter of the Estate of HAROLD P. WALKER, deceased

122 A. 192

13 Del.Ch. 439

In the Matter of the Estate of HAROLD P. WALKER, deceased

Court of Chancery of Delaware, Sussex

June 4, 1923

The grounds of exception and the facts material to the decision thereof are sufficiently set forth in the opinion of the court.

Charles W. Cullen, for the exceptant.

James M. Tunnell, for the administrator.

RICHARDS J., sitting.

OPINION

RICHARDS, J.

Some time in the year 1920, the State Highway Department and the Sussex County Improvement Commission awarded two contracts to the firm of Walker & Savage for the construction of concrete roads in Sussex County, one of said contracts extending about five miles west from Millsboro and the other extending about five miles east from Laurel. The contractors were required to give bond for the sum of , on each contract and the Fidelity & Deposit Company of Maryland was accepted as surety on each bond. Before the completion of the contracts, Harford P. Walker died and shortly thereafter the said two contracts were taken over by the Fidelity &amp Deposit Company of Maryland, surety on the bonds, as it had obligated to do and the work was completed by it.

Letters of administration on the estate of Harford P. Walker were granted to Frank F. Davis by the Register of Wills of Sussex County on March 21, 1921. The administrator passed his final account on March 21, 1922, showing that the assets of the estate amounted to $ 20,017.34. In said account an item of $ 700 was allowed George N. Davis for professional services as attorney for the administrator, an item of $ 99.82 was allowed the administrator as "expenses for auto, car fare, telephone, etc.," and commissions were allowed the administrator as compensation for his services amounting to $ 2,001.73, being ten per cent. of the total amount of the estate.

Exceptions to the account were filed in the Orphans' Court on May 24, 1922, by Fidelity & Deposit Company of Maryland, a creditor, but the argument thereon was continued from time to time for various reasons until January, 1923. The items excepted to are the one for $ 700 allowed George N. Davis for professional services as attorney for the administrator, the one for $ 99.82 allowed the administrator as "expense for auto, car fare, telephone, etc.," and the one for $ 2001.73 allowed the administrator as commissions. The reasons given for the exceptions are as follows:

"That your petitioner is informed and believes that the time, trouble and expense bestowed and incurred by the said administrator in the collection of said accounts and in the selling of said property (personal) has been little, and that there has been no litigation respecting the same, so that the time and labor bestowed by said administrator in the settlement of said estate has been small."

Commissions allowed an executor or administrator are considered as compensation for his services in the settlement of the decedent's estate. They are not only meant to cover his efforts in collecting the assets of the estate, but his labor, risk and trouble in connection therewith.

In most jurisdictions the rate of compensation is fixed by statute, being based upon a certain percentage of the value of the estate which comes into the hands of the executor or administrator. But in the absence of such a statute the custom is for the probate court or Register of Wills to grant such an allowance as will be just and reasonable under the circumstances of the particular case in question. Bendall's Distributees v. Bendall's Admr., 24 Ala. 295, 60 Am. Dec. 469; Mayer v. McCracken, 245 Ill. 551, 92 N.E. 355; Granberry's Ex'r. v. Granberry, 1 Wash. 246 (Va.) , 1 Am. Dec. 455; McKin v. Duncan, 4 Gill. (Md.) 72; McPherson v. Israel, 5 Gil & J. (Md.) 60; Merrill v. Moore, 7 How. (Miss.) 271, 40 Am. Dec. 60; Pomeroy v. Mills, 37 N.J.Eq. 578; Clark v. Knox, 70 Ala. 607, 45 Am. Rep. 93.

There is no statute in this state fixing the amount to be allowed executors or administrators for their services but the established practice or custom in Sussex County, as long as any one who has ever been connected with the office of the Register of Wills can remember, has been to allow them ten per cent. of the total amount of the estate which has come into their hands. This practice has been varied from occasionally, however, but they were cases where the estate consisted almost entirely of cash in bank stocks and bonds, or such liquid assets as were very easy for the executor or administrator to get control of and to dispose of according to law.

The estate of Robert F. Godfrey, upon which a first and final account was passed January 26, 1918, was one of that nature. The account is recorded in the office of the Register of Wills at Georgetown, in and for Sussex County, in Administration Account Book V, No. 21, page 241; showing a total estate amounting to $ 13,526.39, consisting of cash in bank $ 8,251.67, bank stock $ 1,012. 50, three notes for $ 1,000 each, stock in two other companies, and small notes, and further showing that the Register of Wills had allowed the executors $ 1,352.64, which was ten per cent. of the total amount of the estate. Exceptions to the account were filed in the Orphans' Court and an order made by the court reducing the allowance to the executors to $ 676.32, which was five per cent. of the total amount of the estate. (See supplemental final account passed January 1, 1919, and recorded in the office of the Register of Wills at Georgetown, in and for Sussex County, in Administration Account Book V, No. 21, page 384.)

In the case before me the total estate amounted to $ 20,017.34 consisting of $ 11.11 in cash, an unloading plant at Millsboro, an unloading plant at Laurel, between fifteen and twenty miles apart,...