Shepard's Heirs v. Shepard's Adm'r-Argument of Counsel.

said Alfred the amount of 1,727.35 as per his account sales, less $22, the amount of the McAlpin account not collected. It appears from the evidence that H. McAlpin purchased a portion of the personal property of the said Alfred at the sale thereof by the defendant, and afterwards, on the 20th. of December, 1870, made his promissory note with J. J. Martin as surety in the sum of $22 payable twelve months after the date thereof, and delivered the same to the defendant for the price of said property. This note was not paid at maturity, and the defendant made no effort to collect it until the 4th of March, 1874, when he put it in suit. Judgment was rendered against McAlpin and Martin on the 5th of May, 1874, for $27.80 and costs, execution issued on said judgment on the 25th of May, 1874, and was returned by the sheriff "nulla bona" on the 6th of April, 1878. The surety was approved by the Judge of Probate who thought him good. The said Judge always made inquiry as to the pecuniary standing of parties before he approved notes.

The defendant has failed to show that either the principal or surety of this note was good and solvent at the time it was made and the credit given, and that they have since become insolvent. The onus is upon the defendant to prove these facts in order to relieve himself from liability. for the amount of this note. (Thomp. Dig., 202.) Besides, it appears that the defendant failed and neglected to make any effort to collect this note until more than two years had elapsed after it became due, and that it has become worthless and uncollectable.

Under these circumstances we think the defendant should not have been allowed the amount of this note, but should have been charged with the full amount of the sales.

The gold certificate of $673.78 was made by John T. Seegar on the first day of January, 1867, delivered to Alfred Shepard and came into the possession of the defendant immediately upon his qualifying as administrator.

Shepard's Heirs v. Shepard's Adm'r-Argument of Counsel.

And no effort was made to collect it until the 29th of March, 1873, more than two years after it came into the defendant's possession and sometime after the death of John T. Seegar.

The defendant himself testifies that John T. Seegar always denied his liability under this certificate of deposit. That he brought suit on it, to collect it, on the 29th of March, 1873, and the presiding Judge ruled that it could not be admitted in evidence for want of a proper United States revenue stamp, and consequently he failed to collect it. At the time the suit was instituted John T. Seegar had become insolvent and died. But up to the time of his death his credit was considered good in the community, and he was regarded as solvent.

The defendant allows this claim to go out of date, which was a devastavit. Wms, on Extrs., 1805.

It is apparent from the foregoing facts that by proper diligence the defendant might have collected this claim, but he neglected for several years to make any effort whatever to collect it. Indeed, he waited until the claim had gone out of date, and until Seegar had become insolvent and died, before he moved in the matter. Under these circumstances we insist that the defendant should be charged with the debt. Long's Estate, 6 Watts, 46; 9 B. Monroe, 540; II Wendell, 361; 5 Vesey, 839; 4 Florida Reps., 118.

To relieve himself from liability on this claim the defendant relies upon the ruling of the Circuit Court for Gadsden county that this certificate was not admissible in evidence in said court, because it was not stamped with the proper United States internal revenue stamp.

This, we insist, ought not to avail him for that purpose, because, first, at the time said ruling was made the defendant had full power and authority under the laws of the United States to affix the proper United States internal

Shepard's Heirs v. Shepard's Adm'r-Argument of Counsel.

revenue stamp to said instrument, and thus comply with the ruling of said court. Second, at the time the said ruling was made the honorable, the Supreme Court of Florida, had decided the contrary of said ruling to be the law of the State of Florida, and the defendant should have excepted to said ruling and prosecuted his appeal to this honorable court instead of attempting to use it as a cloak to cover the liability which he had already incurred by his negligence in not collecting said claim. U. S. Rev. Statutes, Sec. 3422; also Supplement to Rev. Stat. U. S., pp. 102 and 201; 14 Fla. Repts., 239.

The second exception embraces a number of items, which we will consider in their order. The disbursement of ten dollars to W. J. Gunn was for his services as auctioneer in selling the personal property of the said Alfred. Gunn was engaged one day in doing it, and the compensation paid to him was fair and reasonable according to the defendant's testimony. The law imposed upon the defendant the duty of selling this property, and allowed him compensation for this service. Thomp. Dig., 202 and 208. This disbursement, therefore, was not a proper charge against the estate, but was a personal debt of the defendant's which should be paid out of the compensation allowed to the defendant for this particular service, otherwise the estate will pay twice for this service-once to Gunn and a second time to the defendant.

The disbursement of $19 to Owens & May was for advertising the time and place of sale of this personal property.

This service was connected with and constituted an essential part of the sale itself, hence the same objection which was made to the allowance of the disbursement to Gunn will apply with equal force against the allowance of it.

Shepard's Heirs v. Shepard's Adm'r—Argument of Counsel.

The disbursement of $9 to Commissioners, $3 to R. P. Green, and $6.55 to J. E. A. Davidson were for costs which accrued in a partition suit before the Probate Court for Gadsden county between the defendant and plaintiff.

This proceeding was entirely disconnected with the administration of the estate. Wms. on Extrs., 1575. Besides, the said Probate Court had no jurisdiction to grant partition of real estate, and the said proceedings in that behalf were void, and the costs incurred an unnecessary expense. Therefore these disbursements ought not to have been allowed defendant.

The disbursement of $50 to Stephens & Love, attorneys, was for professional services in the conduct of said partition suit, and is subject to the same objection that is made to the three preceding disbursements.

The allowance of $24 is for services as specified in Voucher 44.

Many of the items of service mentioned in this voucher are disconnected with the administration of the estate and were performed by the defendant voluntarily for his own. personal advantage and benefit; besides, the allowance is exorbitant in this, that defendant is allowed for a day's service when he was engaged for a few moments only.

The allowance of $125.85, a commission of 6 per cent. on $2,097.32, amount of sales of the personal property, is for compensation for the sale of said property.

The defendant was engaged one day in the performance of this service. The sale was made by Gunn, an auctioneer whom the defendant employed for that purpose, at the price of ten dollars. This was a fair and reasonable price for the service. The notes, which, taken for the purchase money of this property, were written and taken by J. E. A. Davidson, to whom the defendant paid sixteen dollars for this service.

Shepard's Heirs v. Shepard's Adm'r-Argument of Counsel.

The care and preservation of the property prior to and subsequent to the sale. and up to the delivery thereof to the purchaser, was entrusted to S. S. Strange, whom the defendant employed for that purpose.

The defendant employed S. S. Strange soon after-qualifying as administrator to finish gathering the crop, to assist in paying off and dividing with the hands, to superintend the ginning, to take care of the stock and gather them for sale and deliver the property to purchasers. S. S. Strange was engaged in this service for two months and found himself during this time, and defendant paid him twenty dollars for his services.

He performed the service in a very satisfactory manner and the compensation was very reasonable.

The notice of the time and place of sale was advertised by Owens & May, to whom the defendant paid for this service $12.50.

The defendant's services for one day with his buggy and horse are reasonably and fairly worth $2.50. And the defendant charged the estate with $2.50 for this service of selling the personal property.

Under this state of facts we think that such a per cent. on the gross amount of the sales of the personal property as would pay all expenses necessarily incurred in and about said sale by the defendant, and in addition thereto would pay the defendant for the value of his time and service as proved by the testimony, would meet the intention of the statute. The law certainly does not contemplate that the administrator shall make a profit out of the estate entrusted to his care, but simply contemplates the allowance of a fair and reasonable compensation.

The allowance of $58.26, a commission of (3) three per cent. on $1,942.25 coin and currency, of which said Alfred died possessed, and also $15.60, a commission of six per