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

cent. on $263.56, seem to be gratuitous and not as compensation for any service performed by the defendant.

The allowance of commissions to an administrator on money of which the intestate died possessed, and upon money which the administrator collects, is illegal. 7 Fla. Reps., 44.

It appears that the defendant came into the possession of the above sum of $1.942.25 when he qualified as administrator, and deposited it with William Munroe for about two months, when he disbursed it to the next of kin.

He was engaged a part of a day only in disbursing this money, was put to no expense whatever in and about the same, and charged $2 for this service, which was allowed to him. The defendant thought the allowance of two dollars for this service reasonable and fair, and the Probate Court allowed it to him. If, therefore, the master allowed the defendant the above commissions as a compensation for the custody and disbursement of these moneys he has gone contrary to the order of reference and the evidence in the

case.

There is no evidence whatever that the defendant collected $263.56, or any other sum of money.

The Third Exception.-The allowance of $24.58, a commission of three per cent. on $819.40, the amount of the note against John T. Seegar, which was charged to defendant, seems to be gratuitous also, and not as a compensation for any service performed by the defendant.

The defendant is charged with a liability incurred by him for his inexcusable omission of duty, and the master allows him a commission of (3) three per cent. upon this lability as a compensation for his omission of duty.

This is a new principle, and one of first impression, which we think unsound both in law and ethics and ought not to be sustained.

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

The allowance of $15 is for compensation to defendant in attending the Circuit Court in Liberty county to collect some worthless claims. At the time the defendant performed this service he knew these claims to be utterly worthless and uncollectable, and that any expense incurred upon them would be useless.

Besides it does not appear that defendant made any effort toward collecting these claims, other than attending the Circuit Court for Liberty county several times. On these occasions he saw none of these debtors, had no reason to expect to meet them at court, never communicated with. any of them, and never sued any of them, because he knew them to be insolvent. Under these circumstances we think this compensation ought not to have been allowed.

The disbursement of $5 to R. S. Tucker, $8 to J. E. DuPont and $4.35 to S. E. Stewart were for costs incurred in the suit against McAlpin and Martin, and should not have been allowed for the same reason urged against the allowance of the McAlpin note.

Besides the costs paid to Tucker and $5 of the costs paid to DuPont are for the same service and a double charge against the estate.

Defendant's Exceptions.-The testimony touching the subject-matter of the defendant's first exception is to the effect that the defendant qualified as administrator of the said Alfred on the 8th of November, 1870, and immediately thereafter took possession of the Seegar note. More than two years afterwards, to-wit: on the 13th of December, 1872, John T. Seegar departed this life in Gadsden county, and letters of administration on his estate were granted to H. B. Seegar on the 23d of December, 1872. The credit of John T. Seegar up to the time of his death was considered good, and he was regarded as solvent.

The note was overdue and unpaid when it came into the

Shepard's Heirs v. Shepard's Admir-Argument of Counsel.

possession of the defendant, and no action was taken to collect it until the 29th of March, 1873, a period of more than two years after it came to his possession.

A suggestion of the insolvency of the estate of Seegar was made in the Probate Court for Gadsden county on the 24th of April, 1874, and the note has not been collected in consequence thereof.

The defendant testifies in regard to this note as follows: The indebtedness of Seegar originated in loan made to him by Alfred Shepard in his lifetime. In the summer following the death of said Alfred (who died in November, 1870,) the defendant called on Seegar for payment, who informed defendant that he was hard pressed for money, but would pay him as soon as cotton commenced moving. As defendant had no immediate use for the money at that time, and as Seegar was regarded by defendant and the whole community as perfectly safe, defendant deemed it most advisable for the interest of the estate not to sue immediately. Defendant called on Seegar again the ensuing fall, and Seegar informed him that he had shipped cotton to pay the debt, and would settle the same on a certain day or sooner if return of sales should be received, and manifested a great desire for a speedy settlement, and would undoubtedly have met the payment promptly according to promise but for his unfortunate death which occurred a few days prior to the time appointed for payment.

The defendant never instituted suit for collection, because Seegar always acknowledged the claim and promised to pay. Seegar was regarded as a safe man, was paying interest on the money, and defendant thought it best to wait until Seegar could raise the money and thereby save the cost and expense of a suit.

Among the papers turned over to defendant, as administrator of Alfred Shepard, was a note on John T. Seegar for

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

$1,000. In June, 1872, the defendant notified Seegar that he held this note as administrator, and wanted it paid by the following February, as he wanted then to make his final settlement. Seegar then told defendant to put it off until in the fall of that year, and he would pay it as soon as cotton began to stir.

Defendant called on Seegar again in October for payment of said note, and Seegar then told him that he had cotton in Savannah to pay the debt, and that as soon as it was sold he would pay the note. Seegar then told defendant that if he was pushed for the money he would draw on the cotton, but it was no use as the defendant would get the money as soon by a sale as a draw. Defendant then told Seegar not to disappoint him, as he was arranging to make his final settlement in February following. And Seegar told him not to be uneasy as he would pay it as soon as the money came. Defendant's object in calling on Seegar in June, 1872, was to notify him that the note must be paid by the following February so that defendant's final settlement should not be delayed. Defendant had not previously notified Seegar to pay the note. This was the first time defendant named it to him. The note came into the detendant's possession on the day Alfred Shepard's estate was appraised.

The defendant in October, after the June above stated, called on Seegar and told him he must certainly pay the note by the following February, and that defendant was willing that Seegar keep the money until the February, provided that he would certainly pay it at that time.

John T. Seegar in October, 1872, told S. S. Strange to push up defendant to collect said note as he was ready to pay it, and the defendant did not care to collect it. S. S. Strange repeated the above statement of Seegar's to the defendant about a week afterwards, and the defendant then

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

said that he did not care to collect this note until he knew that all the heirs were ready for a final settlement, as he did not want to pay interest on it. The defendant further said that the note was good, and he was going to hold on to it until the last day in the morning, as he did not know what might turn up.

It is apparent from the foregoing facts that the note could have been collected of John T. Seegar in his lifetime by proper diligence on the part of the defendant, and that it las become uncollectable and worthless on account of and through the negligence and delay of the defendant in enforcing the collection thereof, hence he was properly charged with it. 4 Fla. Repts., 118; 11 Wendell Repts., 361; 5 Vesey Rept., 839; 6 Watts Repts., 46; 9 B. Mon. Repts., 540; 4 Hayw Repts., 134; 2 Y. Col. C. C., 634: 2 Green Ch.. 300; Williams on Extrs., 1806 and 1815 (last Edition); 31 La. An., 311; Stone vs. Creditors.

The testimony touching the subject-matter of the defendant's second, third and fourth exceptions is that the defendant got mad, retained attorneys and brought suit on the Seegar note and gold certificate against Seegar's administratrix within six months after the granting of letters of administration to her.

Under these circumstances the law imposes the costs upon this defendant, (Thomp. Dig., 205,) and he ought not to be allowed them against the estate. Besides he had waited until these claims became worthless before taking any action on them, and even then brought the suit to soothe his ruffled feelings. These disbursements were an unnecessary expense, or made necessary by the laches of defendant and should not be allowed to him. Taylor vs. Glanville, 3 Madd. Repts., 178, 2 Madd. Repts., 159; Caffrey vs. Darley, 6 Vesey Repts., 497; O'Callaghan vs. Cooper, 5 Vesey Repts., 117, note 2; Jones vs. Lewis, I Cox Repts., 199.