#### FRANCIS HODGE v. JOHN D. HAWKINS and RICHARD BULLOCK.

June, 1837.

Where a testator leaves the same person executor of his will, and guardian of his children, he is chargeable with simple interest only for the time he was acting as executor; but from the time when the administration of the estate was or might have been concluded, he is to be charged with compound interest; unless he can show special equitable circumstances to discharge him of such accountability.

Where one of two joint executors and testamentary guardians settled with his ward, and was allowed commissions, that allowance is no criterion for estimating the commissions to the other. The compensation to the latter must depend on the time he employed ; the labour he performed; the services he rendered; and the responsibility he encountered in the performance of his duties.

This cause was heard on exceptions to the commissioner’s report. By a former order the commissioner was directed to take an account of the receipts and disbursements of the defendant, John D. Hawkins, as one of the executors of James Boyd, deceased, and testamentary guardian of his children ; and to report the nature of the services rendered by said defendant, and what amount of commissions should be allowed him therefor. The report of the commissioner set forth an account of the receipts and disbursements, in which the said defendant was charged with the sum of nine hundred and two dollars, and credited by the sum of two hundred and ninety-one dollars and eighty-nine cents, for interest. The report also ■found he was entitled to a commission of two and a ■'half per cent, on thirty-seven thousand one hundred and seventy-nine dollars, being the amount of receipts and •disbursements of James Boyd’s estate, as audited and ¡returned to the August Term, 1816, of Granville County 'Court-; also upon three thousand two hundred and sixty-three dollars and three cents, amount of money paid Thomas Brown, a creditor of the estate; also upon the •sum of six hundred and eighty dollars and thirty-two cents, recovered from Thomas Boyd ; and on the sum of four hundred dollars, recovered from Spain’s heirs, *565amounting to one thousand and thirty-eight dollars and nineteen cents. To this report the plaintiffs excepted, first, for that in the account of receipts and disbursements, the commissioner- ought to have charged compound, and not simple interest, on the balance in his hands; and secondly, for that the defendant was not entitled to any commissions on the sums whereupon the commissioner allowed him commissions; because a full commission of five per cent, had already been recived by his co-executor and joint guardian ; and also, for that the commissions so allowed by the commissioner were unreasonable and excessive.

Upon the pleadings and proofs it appeared, that the testator appointed Richard Bullock and John D. Hawkins joint' executors of his will, and guardians to his two infant children ; and that upon the death of one of them under age, the whole beneficial interest in the testator’s estate, according to the limitations of his will, accrued to the survivor, the present plaintiff. Both these gentlemen qualified and joined in returning the inventory, and both of them acted, more or less, in the management of the trusts confided to them. Shortly after the marriage of the plaintiff with William S. Hodge, (who died after the institution of ■ this suit,) a settlement was made between the plaintiff’s-husband and Bullock, who had been the principal acting executor, and had the great bulk of the estate in his hands; to which settlement the defendant Hawkins was not a party, when Bullock made a statement of his accounts as executor and guardian, (containing the items, the commissions on which were excepted to,) and charging therein a commission of five per centum on all his receipts and disbursements, amounting to the sum of four thousand seven hundred and three dollars and eighty-eight cents. It appeared that a proposition was then made to the said Hodge, which he accepted, to deliver over to him the whole estate, including the bonds and other effects in the hands of Bullock, and pass receipts. The present bill was afterwards instituted, to call the defendant Hawkins to account, because of his receipts on account of the estate which were not included in the settlement with Bullock, *566and in the adjustment of these matters, the order for ascertaining the commissions, now the subject of dispute, was made.

Devereux, for the plaintiff.

Badger and W. H. Haywood, for the defendant.

Gaston, J.,

after stating the case, as above, proceeded:— With respect to the matter of the first exception, the Court understands the law to be, that as executor, the defendant is chargeable with simple interest only; but that as guardian, he is accountable for the annual interest on the balance of principal and interest in his hands, unless he can show special equitable circumstances to acquit him of such accountability. Branch v. Arrington, 2 Car. Law Repos. 252. In this case it does not appear what portion of the moneys charged was held by the defendant as executor, and what as guardian. This part of the report, therefore, must be recommitted to the commissioner, with instructions to make this discrimination ; and to regard all balances due from the defendant because of receipts as executor, to be held by him as guardian from the time when the administration of the estate as executor, was, or might reasonably have been concluded.

With respect to the matter of the second exception, it appears to the Court, that the commissioner has proceeded upon an erroneous principle; and hath not so found the matters as to enable the Court to decide thereon. After setting forth the mutual allegations of the parties, the report finds, that it appears, “ that in the settlement made by Richard Bullock with the plaintiff, he had charged five per cent, commissions on the whole amount of receipts and disbursements; which sum ought to be a sufficient charge for settling the whole estate ; but if the plaintiff was willing to make that compensation to one of the executors, the master, notwithstanding, is of the opinion, under all the circumstances of the case, that the defendant ought to have a commission of two and a half per cent on such part of the estate as he had a joint agency in settling. If the master had concluded that the allowance of five per cen-tum by the plaintiff to the defendant’s co-executor, although *567quite enough to satisfy the claims of both, ought not, under the circumstances of the ex parte settlement, to preclude the defendant from receiving a fair remuneration for his time, trouble, risque and services, such conclusion would have received our sanction. But we understand him as taking this rate of commission as that settled to be the fair amount of compensation ; and giving one-half of the commissions allowed on all property which had been under the agency of the joint executors. Now we hold it to be clear, that the settlement in question was one solely between the plaintiff and Mr. Bullock; and whether there was any commission allowed to this gentleman, and if so, what was the amount thereof, is a matter wholly immaterial between the parties now litigant. We hold, that the commission found by the master to have been allowed, is no criterion for estimating the value of the entire services rendered by both executors; and that the circumstance of Mr. Hawkins having & joint agency in the matters which were the subject-matter of that settlement, does not therefore give him a right to one-half of the value of the entire services.

This part of the report must also be recommitted. The master, in revising it, will direct his attention to the inquiry, what is the reasonable amount of compensation for the time he, the defendant, employed; the labour he performed; the services he rendered; and the responsibility he encountered in the performance of his duties; and report such a commission, not exceeding five per cent., as will amount to this compensation. It cannot be expected, and ought not to be demanded of the defendant, to make proof in detail, as of items in an account; but the commissioner can satisfy himself by general evidence of the commission proper on an entire settlement of such an estate; and of the proportion of this sum which the exertions of the defendant Hawkins entitle him to.

PeR Curiam. Direct accordingly.