Succession of Cresswell

Rost, J.

The appeal in relation to the claim, made in behalf of the slaves of the testator in this case, for the wages earned by them since his death, has been discontinued and the claim waived.

There is no error in the allowances made by the District Judge for counsel fees and executors commissions. We concur in his opinion that there was no necessity for employing two counsel, and we consider the compensation allowed a fair remuneration for the services rendered.

We think it clearly results from the will, that in the absence of his universal legatee, the testator intended to give his executor the seizin of all his property. It is contended that he forfeited-his commissions, because he did not keep the funds of the succession in Bank, as required by the Act of 1837. He was dismissed by the Court on that ground—was made to pay 20 per cent, interest on the funds of the succession in his hands, and would have been adjudged to pay special damages, if any had been proved. The statute of 1837 is highly penal, and there is no warrant of law for increasing the penalties it imposes, and depriving executors of their commissions under it. As, however, the executor was dismissed through his own fault, before the succession was fully administered, and any disposition had been made of the testator’s slaves, the District Judge very properly refused to allow the commission on their appraised value. Whether the new executor will be entitled to receive it, in case the slaves are sent out of the State, if the heirs object, is a question not before us.

It is ordered, that the judgment, so far as it reduces the counsel fees paid by the executor from $2000 00 to $1200 00 and the executors commissions from $1033 15 to $785 65, be affirmed, with costs.