This is a suit by the children of George Hayes, deceased, calling upon Gould, the late executor of their father’s will, to account for the real and personal estate which came to his hands or under his control,, and charging him with gross negligence in its management, as well as multiplied acts of malfeasance and waste in regard to it.
The case has been elaborately and very ably argued by tho counsel on both sides, and we proceed briefly to announce our conclusions, attained after a careful examination of tho unusually large record. Although very many points have been argued, yet we think they are collateral to three leading inquiries, to which wo propose confining what we have to say. These are, first, does the bill contain allegations sufficient to make this a case proper for equitable relief 1 second; conceding that it does, is the proof of those allegations sufficient, to justify a de - cree 1 and third, whether, if the ex.ecutor is entitled to any compensation, he should have an annual allowance made to him,.instead of commissions upon the amounts collected and disbursed, by him..
1. And first, as to the case made by the bill. It is objected that the jurisdiction of the chancery court cannot bo maintained, because the Orphans’ Court, having concurrent jurisdiction, and being in possession of the cause when this bill was filed, bad the. right to retain and proceed with said cause to a final settlement. The law is too well settled to be questioned, that where two courts have concurrent jurisdiction, that which first takes cognizance of the cause has the right to retain it to the exclusion of the other.—4 Burns Ecc. L. 266; Harrison v. Harrison et al. 9 Ala. 479; Stearns v. Stearns, 16 Mass. 171; Flournoy’s Ex’r. v. Holcomb, 2 Mun., R. 34; King & Ansley v. Smith & Steele, *44915 Ala. 269, and cases cited; Nelson & Hatch v. Dunn, et al. ib. 514; 9 Wheat. 532. But we do not think this well settled principle applies to the case before ns. Without stopping to inquire whether the Orphans’ Court had obtained such jurisdiction in this case as would, in cases where the jurisdiction of both courts was entirely concurrent, prevent the Chancery Court from interfering, we think that it is very clear that there are executory trusts created by the will of George Hayes which devolved upon the executor, and which the Orphans’ Court had no power to enforce. Such, for example, as the investment of the proceeds of certain crops to be raised in bank stock, and the payment of the dividends to the complainants, the designation of a fund for the support and education of the complainants under the direction of the executor, the outfit for the daughters under the 11th section of the will, the sale of lands lying without this State, and the like. To take an account growing out of the execution of these express trusts, or the enforcement of their execution, if not of. exclusive equitable cognizance, certainly justified a rosort to a court of equity as being the only tribunal which could afford adequate relief. So that we are of opinion, that even had a settlement between the executor and the estate been pending at the time this bill was filed, it would have been entirely competent for the Chancery Court to take cognizance of the cause and to arrest the further action of the Orphans’ Court in regard to it. The complicated and numerous matters of account, connecting themselves either immediately or remotely with these express trusts, very clearly show, we think, that the Court of Chancery alone could have furnished adequate relief.
After the passage of the statute in England requiring the spiritual courts to make distribution, it was insisted that distribution ought to be made in that court, but in answer to the objection Lord Keeper King, as early as 1682, said that £t the spiritual court had but a lame jurisdiction, and there being no negative words in the act of Parliament, he thought a bill for distribution very proper in this (chancery) court,”—Matthews v. Newby, 1 Vern. 133. Judge Story says, “ for a great length of time th ■> usual resort has been to the Court of Chancery to. settle the administration of estates ; so that, practically speaking, in cases of any complication or difficulty, it has acquired almost exclusive jurisdiction,” There are many cases where it is impossible *450t-for any other couit-to administer full 'and satisfactory relief between all parties in interest.” — 1 Story’s Eq.-juris. § 543. The remedy in the Orphans’ Court-being cheaper and more expeditious than that afforded in Chancery,-this court, at an'early day, -doubtless more as a matter of sound policy than of strict legal -requirement, was inclined to confine heirs, distributees, &c., of -deceased persons’ estates, to the Orphans’ Court, in cases where the powers of that court were adequate to administer full relief.—Gayle v. Singleton, 1 Stew. 572. But we apprehend the rule ¡•is undeniable, that the rightful jurisdiction originally exercised ¡by courts of equity, is not impaired by legislative enactment conferring a similar jurisdiction upon any other court, unless there be prohibitory or restrictive words used, denying the exercise or continuance of such jurisdiction to the courts of chan•cery.—Story’s Eq. Juris. § 80; Dement v. Boggess, 13 Ala. 143. And this court has repeatedly sanctioned the exercise of such jurisdiction on the part of -the Chancery Courts.—Singleton & Gayle, supra; Cherry v. Belcher, 5 Stew. & Por. 133; Dobbs et al. v. Distributees of Cockerham, 2 Por. 328; Levons v. Butler & Wife, 8 ib. 300; Blakey’s Adm’r. v. Blakey’s Heirs, 9 Ala. 394; Seott v. Abercrombie, 14 ib. 270; King & Ansley v. Smith & Steele, 15 ib. 264; Horton, Adm’r. v. Moseley, 17 ib. 794; Pearson et al. v. Darrington, 18 ib. 348.
But it is ¡further strenuously insisted, that the administrator with the will- annexed, and not the distributees, should be entitled to call upon the executor -to account, and that-the several statutes of 1806,1821 and 1846 mus-t all be construed in pari , materia, as constituting but one body of statutory laws upon ■ this subject, -and 'that these statutes clearly recognise the right -of Leaehman, the administrator de bonis non with the will annexed, to the assets belonging to the estate in the hands of the ■executor, and to an account for the waste committed, or the effects misapplied by him.
.It must be borne-in mind that this bill was filed before the ¡•statute of 1846 was .passed, and the case must be - decided without regard to that statute; for 2 take it ¡to be the law, that although the act at the time of the trial authorized the administrator de-bonis non do maintain a bill against the administrator in chief, it does not relate back so as to destroy the complainants’-action if well-brought. It is-a maxim ¡-as ¡old as the law, *451¡that u nova constitutio futuris formam imponere debet, et non „pnceteritis.” — Bráct. Lib. 4, fol. 228-; 2 Inst. 292; Bacon’s Abr. Tit. Statute.) -CL In general, the law as it existed at the ■time the action wasujommenced must‘decide ¡the rights of the parties, unless the Legislature express a clear intention to vary &he-relation of the parties.—Hitchcock v. Way, 6 Adol. & Ellis 943; S. C. 33 E. C. L. R. 253, and -cases there cited. And this rule applies as well to remedial as -to other statutes. — Per Story J., Prince v. U. States, 2 Gal. C. C. 208. A retrospective statute in respect either to contracts or property would violate every sound principle, and partakes in its character of the mischiefs of an ex post facto law.—2 Dwar. Stat. 677, 680-81; Paddon v. Bartlett, 3 Adol. & Ellis, 884; 30 Eng. C. L. R. 258. The rights of -the parties, whatever those rights were, attached before the act of 1846 was passed, and as it contains no express words giving it a retrospective operation, the court •would violate not only sound principle, but multiplied precedents, were we to construe it so as to defeat the action rightfully commenced.—See Latless v. Holmes, 4 T. R. 660; Moro et al. v. Phillips, 12 Me. & Wels. 536; Unwin v. St. Quintin, 11 ib. 286.
The act of 1846 out of the way, what is the correct construe-tion of the previous acts .conferring upon the administrator de bo-nis non certain -remedies against the .first administrator or executor'? We think that construction has been very clearly settled by several-adjudications of this-court; adjudications which we are unwilling to disturb, oven though we should doubt their correctness, as no hardship or inconvenience can result from adhering to them. We should on the other hand impose a hardship upon suitors to require them to conform to the law which wo unsettle or Tender doubtful by our decisions. -Hence it is that .courts are ¡usually governed by precedents, which establish rules,governing the practice, or settling the -construction of statutes .or questions respecting real estate.—2 Dwarr. Stat. 785; Doe ex d. v. Allen, 8 T. R. 504; Broom’s Maxims, 65 and cases cited.
Let us then turn to some of the previous decisions of this court, and see whether the settled construction of -these statutes is not adverse to «that insisted on for the plaintiff in error. — In Chamberlain v. Bates, 2 Port. R. 550, it was held that the authority of an administrator de bonis non extends only to such of *452the personalty of his intestate as remains in specie, unaltered or unconverted by his predecessor, and so far only can he be regarded as a trustee for distributees and creditors ; that the commission or letters of an administrator de bonis non, as his name imports, extends only to the unadministered assets ; and that he could maintain no action against the former executor or administrator, either at law or in equity, for assets wasted or converted by him, but such suit must be brought by creditors, legatees or distributees. In this case the former administrator had died, and tho administrator de bonis non brought assumpsit against the representative of such former administrator, to recover a sum of money alleged to have been received by him, and never accounted for or paid over. The action was disallowed. The Chief Justice, in delivering the opinion, however, said, that “ if administration be granted to an improper person, or by an improper court, and afterwards revoked, the subsequent administrator properly appointed has a general commission of the administration, and is thereby entitled to call the displaced administrator to account, as in tho case of an administrator de son forty In the case of the Judge of tho County Court of Benton v. Price et al. 5 Ala. R. 36, the act of 1806 is referred to, and the court say “ tho act only applies where letters of administration have been revoked for any of the causes mentioned in it,” and that even in such case, it may be questionable, whether an action can be maintained where the assets have been wasted or converted. — In Moore et al. v. Armstrong, 9 Port. R. 697, the administrator in chief became a non-resident, and the bill w'as filed against him by the distributee ; the administrator died, and tho bill was amended, making the administrator de bonis non a co-plaintiff with the distributee; a demurrer for this misjoinder was held to have been properly sustained.
In Willis v. Willis, 9 Ala. R. 721, the Orphans’ Court proceeded to render a decree and award execution in favor of the administrator de bonis non against tho former administrator, whose letters of administration had been revoked for a failure to renew his bond. The court cite tho previous cases of Chamberlain v. Bates, and Judge Benton County Court v. Price, supra, and hold the decree erroneous, at least so far as the award of execution is concerned.
In Nolly v. Wilkins, 11 Ala. R. 872, the administrator with *453the will annexed was cited to give additional security. He came in, filed his accounts and vouchers for settlement, and resigned his trust. A settlement was ordered, and Wilkins was appointed administrator de bonis non¡ in whose favor a decree was afterwards rendered, and execution awarded for the assets in the hands of the former administrator. It was held that such administrator could only recover from his predecessor, whether he has resigned or been removed from his office, the assets which remain in his hands in specie unconverted, and that a settlement could only be made between him and the distributees or legatees of the estate. This, of course, was confined to cases where the estate was solvent; ftr where the estate proved insolvent, the act of 1843 confers upon the administrator de bonis non the right to sue the former administrator, either in the Orphans’ Court, or any other court of law or equity, to recover the assets belonging to the estate.
In King and Ansley, administrators, v. Smith and Steele, 15 Ala. R. 264, the plaintiffs as administrator de bonis non with the will annexed of Jeremiah Smith, deceased, filed their bill in equity against Smith, the former administrator, who had been removed, and his security on his bond, for an account of the assets of the estate, which the former administrator had received and failed to account for, &c. We held that prior to the act of 1846, a Court of Chancery would not entertain a bill filed by the administrator de bonis non against a former executor or administrator in chief of the same estate, for an account of the assets that had been w'asted, embezzled or misapplied by him. True, this case might well have turned exclusively, as it did mainly, upon another point, namely, that the former executor had come to a full and final settlement with the Orphans’- Court, which had jurisdiction, and which wre held concluded the parties in equity, no grounds for impeaching the decree being averred in the bill. Nevertheless, the other point was expressly decided, and, as will appear by the previous cases, was sustained by their authority.
It is very manifest from an examination of these cases, that this court has not been disposed to extend the provisions of the 40th section of the act of 1806, but by a strict construction of its provisions, to confine its operation to cases w'here the letters of administration have been revolted, because they were granted npon insufiU *454cient security, and the .administrator'has failed to give sufficient security upen-, being required to do so:by the Orphans’ Court, or when it should appear upon examination, that the administrator had embezzled, wasted or misapplied the decedent’s estate.
The fourteenth section of tire act of 1821- authorizes the court to require of the executor, administrator, or guardian, further-security, upon complaint being made by any of those who have gone on his- bond,, or when it is made to appear that there are-sufficient grounds for believing, that' he is about to waste, embezzle or misapply, or remove from the State,.the property committed to his charge, or on proof of g'ross neglect, &c., or that his securities have become insufficient,, as well as for the causes heretofore specified. This section fails to- provide what- the court shall do on the failure of the administrator or executor to-give the-additional security which is required,, nor does it confer any authority upon the court-to remove such delinquent administrator ; but by the fifth section of the same act, (Laws of Alabama by Toulinin, 193,) the judge of the County Court is empowered to repeal letters testamentary,, and of administration,, to appoint and displace guardians, &c.,.and to make all necessary orders for the issuing process and other purposes within, his jurisdiction, according to- such regulations as arc or may he established by law in such casesso that we apprehend the argument of the counsel for the plaintiff in- error* that the fourteenth section would he utterly powerless, .unless, for its enforcement, it may borrow the consequences attached as the penalty by the fortieth section of the act of 1806, fails, since this act. justified the court in displacing the executor or administrator-. .But without, consuming further? time on this point, wc feel quite sure that the,construction placed by this court, in the cases previously citedf-is opposed to that contended for by the counsel for the plaintiff in error,, and shows that this suit may well be maintained in the name of. the distributees. The court has refused to indulge a.doubtful construction in favor of enlarging the powers of an administrator de honistjion, from considerations of policy.. There would usually he delay,.and cases might readily bo imagined where there would be great hardship and injustice done to legatees, distributees and creditors, by continuous removals and appointments of successors, if the creditor or the dis-tributees or legatees should bo-compelled', to wait the tardy pro*455cess of a-su.it between tbo out-going administrator and bis successor, and-.perhaps again between the latter and his successor,., until, to say nothing of the hazard of total loss consequent upon these changes^ the funds would be greatly, lessened by costs and commissions as it swept along the tide of litigation.—Chamberlain, adm’r. v. Bates, adm’r. 2 Port. R. 559; Coleman v. McMurdo, 5 Hand. R. 51. We think the statutes furnish non-objection to the maintenance-of the action,directly by the com*, plainants to this-bill.
But it is contended for the plaintiff in.error, that tho walkin': this case creates continuous trusts, which devolve upon the successor,, and that according to its provisions, the complainants are entitled to no decree other; than to provide for the security of the assets, which are nofcshown to be in any danger, and that, therefore, the hill was prematurely exhibited. The demand, against the exeeutor, which these complainants assert, and the-decree itself,,.is for moneys which they insist he should pay.. If this fund, or any portion of,it,.is needed to pjay the debts due - from the estate,, it is clearly, competent for the Chancery Court to call the creditors before it¡, and to make this disposition of it.. By the fifteenth clause in the will, all the surplus proceeds, after the maintenance and support of the plantations, which tho testator desires should be kept up,. together with all moneys arising from the sale of lands, or accruing to the estate from any other sources,, except as is otherwise provided in the will, are required to he invested in the safest; hank stock, which is to he a. permanent'fund,, the interest or dividend tobe equally divided-, amongst the testator’s three children.. It is the duty of the-court, as far as can be done, to effectuate the intention of the ■ testator., by carrying into execution the provisions .of his will.. The farms then must be kept up,, and; the proceed?,..as w'ell as the funds-.derived from other sources,., except such as may be required to carry out the previous provisions of tho will, must, lie invested as required, if the same can he profitably done... But the paramount duty of the executowwas, and of tho administrator with tho will annexed now is,.to pay the debts,.and until they are paid, the heirs or distributees are entitled to no* portion of the estate.^-Thrash v. Sumwalt, 5 Ala. R. 14. It, maybe,, for aught that we can judicially know, that after.the-dlbts are paid, the exigencias of the- estate-which is to. be kepi *456together until the period designated in the will, may require the expenditure of a portion of these funds. If so, it is very clear that the administrator with the will annexed should be allowed to appropriate them in that way. So we conclude, that in so far as the discharge of the duties devolved upon the adminis-istrator de bonis non by the will requires the appropriation of ail or any portion of the money here decreed, to that extent should the funds have been decreed in furtherance of such objects. But how could the debts be paid, or tho interest of the estate, as respects the duties devolved upon the administrator with the will annexed, be protected and forwarded in the absence of the creditors, and of such administrator'? None of them were made parties, or brought before the court, or the master, in any way. The decree therefore, which gives the fund to the complainants absolutely, without regard to the demands existing against the estate which remain unsettled, without regard to tho necessities of the estate, growing out of the duties devolved by the will upon the personal representatives, is erroneous. Ordinarily, where the distributees file a bill for an account against an out-going administrator, it may not be necessary to make the administrator de bonis nona party.—Draughan v. French, adm’r. 4 Port. R. 352. But the will in the case before us gives the administrator the funds, if necessary to the maintenance and support of the plantations, while it confers upon the complainants the right to demand the means necessary for their maintenance and education, and the payment of the interest or dividends, which will accrue from an investment of the surplus means to be derived from tho estate. There can be no surplus until the debts are paid, and until the fact is ascertained, that tho condition of the plantations is such as to require no appropriation to be made for their support and maintenance. It then follows, that in taking an account so as to distribute this fund, tho administrator de bonis non should he made a party defendant, and the hill should show that no claim of his was setup, or, if setup, that the samo constituted no charge upon this fund, which should intervene between them, and an absolute appropriation. of the money to them, or for their benefit as contemplated by-the will. As to tho creditors, they may (as we havo before- said,) bo brought in before the master, as in case of a creditor’s bill. We think the complainants, in regard to the fund re*457’'■covered, occupy substantially the relation of residuary legatees, ■being only entitled to the apgróp nation "for-their 'benefit of the • surplus or -residuum, after satisfying the-previous charges upon '•the fund- Tn such cases, it ‘is well -settled that alb-other persons interested in the distribution -must be-made.p'ar-ties, so-that -only one account may fee taken-. Atwood v. Hawkins, Finch, 113; West v. Randall, 2 Mason’s C. C. &. 181; Sherrit v. Birch, 3 Bro. C. C. 229; Parsons v. Neville, ib. 365; Julian v. Reynolds, 8 Ala. R. 680; Edwards on Parties, 138; Peacock v. Monk, 1 Ves. Sr. 127; Cockburn v. Thompson, 16 Ves. Jr. 321; Pritchard v. Hicks, 1 Paige’s C. R. 270. At'all events-, the hill should be so framed, as that the -interest of all parties ■might be.protected, and the trusts'created -by‘the will properly enforced according to the intention of' the testator. — Story’s Eq. •Plead.'§§ 104-105, and notes, .(4th Ed.’}
'We are farther of opinion, that this defect in the frame of'the !bill might be taken advantage of on.-general '"-demu-rrer; for it is •impossible for the court to say what amo&nt will remain after the debts are .paid, and the amounts necessary (if any) to maintain the plantations, until ¡an account is taken of these matters, ’and no account was or could he taken of them under the bill -as •at present framed, the parties interestedtherein not being before the court fey any of the modes allowed by the practice. — 1 Stew. & Port.'81J; 2 Stew. 280. The omission of an indispens'a-\fele party is an error for which % decree may he reversed on error, though the objection he made for the‘first time in the appellate court.—18 Ala. R. 576. The demurrer therefore should have been sustained, and leave given the party t© amend, so as •to bring the proper parties before the court, -fes the practice in •'such cases is not to dismiss‘for want of proper .parties, but to let the case stand over for an amendment or supplement to tlio bill, <as the case may require.—Rugely et al. v. Robinson, 10 Ala. R. 703; Batre v. Auge, 5 Ala. R. 179; Toulmin v. Hamilton, 7 ib. 369; Alderson v. Harris, et al. 12 ib. 580.
Having disposed 6f the question of parties, let ns consider the inext proposition; whether the case made by the record -.justifies 'the interposition of the Chancery Court, so as to withdraw it from the Orphans’ Court, which had ordered initiatory pro-'ccedings for the final settlement of G-ould’s executorship.
Without in this place going into a critical examination of i'ko *458numerous allegations of the bill charging both nonfeasance and' malfeasance, not only .in, regard to.the executorial duties proper,, but also with respect to the several trusts devolved uppn the executor by the will, .and without stopping to ascertain how far the proof sustains all or any of them,,we feel'quite sure that the whole case presented by the record is one in which the Court of Chancery is alone competent to afford full relief. This is manir fest from an examination of the will, and the account which was ■filed by the plaintiff in error in the Orphans’ Court, and which, lie insists, exhibits the true condition of the monetary affairs of the estate. The account, ..asjd'é from the various matters of ex--. planation which the answer discovers,, is certainly unsatisfacto-. ry. It furnishes no definite idea of the manner in which the estate has been managed, „or of the assets remaining on hand!.. It sets forth the receipt by the administrator of $63,124, and although but a comparatively small amount of debts due from the estate at the time of the testator’s death appears to have been paid,, still the account brings the estate in debt to the executor in the sum of $3,957, .the main bullc. of the,sums re-, caived having been disbursed .in, the payment of expenses attending the prosecution and defence of law suits, the defraying the expenses of the farms in the matter..of overseer’s wages, physicians’’bills, provisions Ac.,,and still leaving a considerable sum duo of debts, which he had contracted,' and which remained unpaid when he was removed from.office... Besides, a portion of t’ae sums collected for rents accrued upon lands not disposed of-, by the will,, and these descended to tlie .complainants who are the heirs at law of the testator. .It is not shown that these lands •were rented to the highest bidder at public out-cry,..as required by the statute of 1839, (Clay’s Dig.. 199r § 36,) and if ¡the exe-.. cutor rented them out otherwise than authorized by law, his act was unauthorized, and he would hold. the proceeds iu trust for the complainants.—Martin, ex’r, v. Williams, 18 Ala. R. 190. To obtain a full discovery,, and as indispensable to a correct and satisfactory settlement of this complicated account, we do not entertain a doubt, but that the complainants might properly re -. sort to the Chancery Court, especially as they had the right to. have an account of the manner in which he had discharged the duties imposed by the will as express trusts, and which, wc have üsefore shown, were so intimately blended with" his executorial . *459duties as to require an account of each tó be taken, in-order properly-to settle either. The surplus only is to be invested in bank stock, and to arrive at this surplus involves an inquiry as to the execution of the trusts created by the will, • as well those within, as those without the jurisdiction of the Orphans’ Court. -
In addition, however, .to all this, the account exhibited -by. the executor claims, as a= compensation for his services, -the sum often thousand five hundred dollars. • As compensation to trustees is allowed as a reward- for the faithful execution of the trusts confided to them, it<-was due to the court, which must ad-measure the compensation, and to the parties,.-that the history, of the executor’s proceedings should be fully made known. The court could then determine whether it was called, uppn - to compensate intelligence, ■ integrity, industry, vigilance and enlightened activity on the part of the executor in the discharge of his duties, or whether he had not forfeited all claims to compensation by his wilful neglect and gross negligence, which have resulted in damage to the estate he represented. — 5 Barr’s R. 416-417. For the reasons above stated, -we conclude, that although the complainants may have failed to sustain by proof the allegations of waste and mismanagement charged, still, enough does appear unquestionably to justify the interposition of the Chancery Court.
We come now to consider the last pyoppsition, as tó the compensation to-be decreed to the executor. We do not think that the proof furnishes any evidence that he acted in bad faith, or that he has been guilty of wilful default, or such gross negligence as should deprive him of compensation. The rule upon this subject with us,-as asserted in Powell et al. v. Powell, 10 Ala. R. 914, and recognized as correct in a number of cases, is not to refuse to executors or -administrators reasonable compen Nation, except in- cases of wilful default or gross negligence, by which loss to the' estate has been the consequence. -
It is the anxious desire of Courts of Chancery to protect trustees from harm, -who act in good faith, and not to subject their conduct to the application of such harsh and rigid rules as to deter all prudent men from assuming fiduciary duties and relations. Tlio court must also.look to the number and nature of the duties to be performed, -and while it will exact the exercise of that care, diligence and forethought in the discharge of 'tliosci *460duties which a prudent man would bestow upon his own busL ness of a similar character, it will not be astftte to hunt out and seize upon every slight departure from the strict line of discretion and .good management. Nor should it look merely at the i’csult, which may be Unfavorable to the interest of those concerned, and conclude from thence, that the trustee has been guilty of gross negligence or mismanagement, since it often happens that the best laid schemes fail of success. Such is the imperfection of our nature, and the vicissitudes to which We are exposed, that even the most wary, discreet and prudent are not exempt from misfortunes and failures.
In the case before Us, the result of the executor’s management was certainly unfortundte to the interest of the estate. Much the larger portion of what has been received by him has been expended, as -we have said, in cost consequent upon fruitless litigation, upon overseers, in bills to physicians and other expenses; but when we take into account the number of the duties devolved upon the executor, the size of the estate, consisting of many slaves and several plantations with stock of different kinds, as also of a large quantity of lands, some of which wrore occupied by irresponsible tenants, the enlarged discretion with which the testator invests his executor by his will, the disposition to insubordination which seemed to prevail among the slaves, and the diversified interests which required to he guarded,it is not to be expected that the executor should be able to conduct its affairs without incurring considerable expense, and without sometimes mistaking its interest. The farms appear to have been managed at least ordinarily well. The litigation, we think, was such as the executor, influenced solely by a desire to advance the interest and protect the rights of the complainants, might -well have engaged in, and the points in the main case of such difficulty as to require the retainer of eminent counsel for their discussion, and who, of course, were entitled to reasonable compensation for their services.
Many minor objections to the conduct of the executor, as furnishing evidence of neglect and malversation, were taken by the counsel for the defendants in error, and were discussed with much zeal and' ability; but without extending this opinion to too great a length by noticing each separately, we deem it sufficient to say, that we have examined them, and are unable to bring *461our minds to the conclusion, in view of all the circumstances and' explanations afforded by the answer and proof, that the executor was guilty of wilful default or gross negligence in the discharge of his duties, so as to justify the court in denying to him all compensation.
In allowing compensation, we think the court should have been governed by the act of 1841, (Clay’s Dig. 228, § 89,) which fully empowers the court, in cases where estates are required to be kept together for- distribution at a future day by the will of the testator, to allow to the executor for his attention and services, in lieu of commissions, such annual compensation as shall bo reasonable, “ having regard to the amount of labor performed, the responsibility involved, and the value of the estate.”
Under the law as it previously existed, the executor or administrator was allowed commissions upon his receipts and disbursements. However just this may be as respects the administration of estates in the ordinary course of proceeding, it will readily strike every one that eases may occur, where such a criterion for compensation would be wholly inadequate.. There may be large estates, required to be kept together for the maintenance of families, and the raising- of slaves, stock, &c., in the administration of which but a very inconsiderable amount of' money would be received or disbursed, yet the whole time and attention of the representative might b.e required in their management for many years. To. provide a remedy in such cases,, and to prescribe the manner in which the court should arrive at a reasonable compensation, was tho design of the section of the act which we have quoted. He is not only to be compensated for the actual amount of labor performed, but regard is also to be had to the responsibility incurred, and the value of the estate. It is our opinion, that in cases coming within the purview of this act, the court, if it allows compensation at all, should estimate it according to the requisitions contained in it, and should not limit the party to commissions upon the receipts and disbursements.
It may be true, as contended for by the defendants in egror, that in this case the Chancellor- has allowed the executor, as commissions, a greater compensation than under all the circumstances of this case he would he entitled to according to, the provisions of the statute.. We express no opinion as to the *462amount ,he should receive, but leave this to be ascertained upon a future-reference to the master. All- we;decide is, that the executor, being entitled to compensation, had the right to insist upon its.allowance according to the,principles,-which the statute embodies as governing the compensation, for his attention and services, .namely,- “having regard to. the amount of labor performed, the responsibility involved,, and the-value of the estate.” These data have been disregarded in the decree before us, and the question of compensation should be .again referred to the register, with instructions to ascertain.what is reasonable, estimating the same according to the rule laid down in the statute. W.e .think that the executor, having the right to compensation, and having been required by the will to keep the estate together for ■ distribution at a future time, has the right conferred by the stat- ■ ute to insist on being compensated in .accordance with its. provisions; and although the words of the statute are that “ the judge shall have full power,” &c,, yet these should not be construed ..to vest him with a discretion as to,whether he,will conform to the statute, or allow commissions merely. . Such words, when used in a statute, are regarded.as peremptory, where the public or an individual has a right de jure that the powers conferred should be .exercised.—9, Por. R. 390; 5 Johns. Chan. R. 113; 1 Ver. 152; 3 Atk. 166; Salk. 609.
The failure of the executor to make; annual returns does not, under the circumstances of this- case, deprive him of the right to compensation. In Craig & Wife v. .McGehee & Armstrong, 16 Ala. 41, we held that an administrator-who has managed the estate with prudence and in good faith, and who has been guilty of no default in settling-when required to do so, does not forfeit the right to compensation by failure to make annual returns. .The cases, cited from South Carolina, which fav.or. a contrary doctrine,.have-.not been followed by this court. .Indeed, these adjudications were upon a statute of that State, which denies compensation if such returns have not been made. — 3 Eq. R. 78. In this State, there is no such enactment.
We have shown that the staute of 1846 has .no retrospective effect, to take-away the right of action from.the plaintiffs; so neither can the act of .1841 confer upon the defendant below.a right to annual compensation for services rendered anterior to its passage. As to. such service, he must he compensated as the *463law then stood, and the master, in estimating his -allowance for 'them,-will receive instructions accordingly.
Let the decree of the Chancellor'be reversed, and-the cause be remanded-for further proceedings 4n -conformity- to the-principles stated in this opinion.