#### Potter, administrator v. Stone and others.

From Wake.

The allowance made to administrators is to be proportioned to the care and attention bestowed in each particular case, so as however not to exceed five per cent, on each side of the account.

The office is not intended to be one of profit, and nothing' more than a bare compensation can be allowed.

Payments made to distributees on account of their portions, whether before the administration is settled, or at the close of it, are not con. sidered as expenditures, and no allowance 'of commissions can be made on them.

This was a motion by Henry Potter, originally made in Wake County Court, and carried by appeal to the Superior Court, for an allowance of commissions to him as administrator of the estate of David Stone, deceased* Administration on the estate of Stone was granted in November, 1818, in December, 1818, a sale of property was made in Wake. In January, 1819, a similar sale was made in Bertie. The administrator personally attended, both sales, and also went to Bertie one other time on the business of the estate. The administrator also claimed commissions on the payment of portions to the distribu-tees. The County Court of Wake, allowed a commission of 5 per centón $31781. This sum was greater than either the debit or credit side of the account. The *31•Superior Court allowed commissions to the amount of one thousand dollars.

It was referred to the Clerk of this Court to ascertain the particular sums received by the administrator, at different times, and as arising from distinct and separate funds, and from his report it appeared that a portion of 5525,000, (Ihc largest sum received) was obtained from sales made hv 'he administrator, of Ítimber which lie had caused to he cut at a saw-mill owned by his intestate.

Taylor, Chief-Justice,

delivered the opinion of the Court.

Trustees were entitled to no allowance at common law, for their care and trouble., but are merely indemnified for their actual expenses. The Legislature has thought fit to alter this rule and to make an allowance according to the actual care and attention bestowed in each particular case. A large estate, being unincum-bered, may, in. fact, require but a small portion of the attention of the administrator, and merit, therefore, a small commission ; whereas a less estate, if much involved, and having many claims to liquidate, may call «pon the Court to go to the full extent of the law. As the maximum is fixed at five per cent, it is a plain declaration of the Legislature, that however great the degree of trouble may be with which the administration is attended, that shall be deemed an adequate compensation. But neither the law nor the reason and justice of the thing, lends any countenance to the idea, that such offices shall he considered as sources of profit to the incumbent, or desirable on that account. On the contrary, considering whose interests are most frequently concerned, that of widows, minors and creditors, every consideration of policy and right, strongly impels the Court to avoid any construction of the law which may lead to such u consequence. A bare compensation, ami nothing more, 2c all they feel authorized to allow. The most trouble. *32gomo part in tbc management of this estate, was probably that whicli the administrator was not obliged to an- ° dertake, that of the saw-mills, which probably belonged £() tbc guardian oJ‘ the, children. For the labour thus bestowed, the administrator is undoubtedly entitled to compensation from those who have been benefited by his attention, hut not as administrator $ nor has the Court any power to take it into consideration on this motion.

To ascertain toe degree of trouble which has hem bestowed in' the administration, properly so called, the Court has couside-cd the duration of the trust and the sums received and paid away in a course of administration : and as the estate, though nominally large, was in fact unembarrassed with law-suits or debts, and the latter for the most part of easy liquidation, the Court, upon a full view and due consideration of all the circumstances* thinks that two and a half per cent, upon the receipts and three per cent, on the expenditures, will be a just compensation for the trouble of the administrator, so far as the law permits the Court to act in relation to the sub-ject_For the sake of future cases, we think it right to add, that payments made to distributees on account of their portions, whether before the administration is settled or at the close of it, cannot be considered as expenditures, and therefore no allowance of commissions is made on them.

The decision of the Court is, that the orders of the comity and Superior Courts are set aside, and an allowance be made to the administrator upon the foregoing principles, of eight hundred and nine dollars, nineteen cents. The rate of commission, in this case, is formed upon an average of the general payments and receipts, upon some receipts, singly considered, a half per cent, would be a full allowance, and upon others we could with propriety go to the maximum. The case cannot therefore furnish a rule fr. any particular charge that may fee-selected.