time, pains, and trouble in the execution of the said trusts, for the time past; and that the said Master inquire whether it will be for the benefit of the estate, that the said C. should continue to be a trustee under the will, and to receive a compensation for the future employment of his time and trouble; and if of opinion, that it will be for the benefit of the estate that the said C. should be continued a trustee, then the Master to settle a reasonable allowance to be made to the said C. therein.

The Editor cites at the close of this passage the case of Brocksopp v. Barnes, 5 Mad. Rep. 90.

This case would appear consistent with the rule before no ticed, if the court had treated C. as an agent merely, as never having been a trustee, and had discharged him as trustee in the decree, and given the compensation as agent-but the inquiry is, whether it will be expedient to continue him as trustee, and if so, to settle the allowance. Neither could the case have proceeded on consent of parties, for infants were concerned principally in the questions in the cause.

After the rule was thus declared by Chancellor Kent, the legislature passed the following act, April 15th, 1817.

"That it shall be lawful for the court of Chancery in the settlement of the accounts of guardians, executors, and administrators, on petition or otherwise, to make a reasonable allowance to them for their services, as such guardians, executors and administrators over and above their expences; and that when the rate of such allowance shall have been settled by the chancellor, it shall be conformed to in all cases of the settlement of such accounts."

In the Matter of Roberts, a lunatic, the Chancellor held the committee of a lunatic to be within the equity of the act, and on the 16th Oct. 1817, made a general order, that the allowance settled by the Chancellor as a compensation for guardians, executors, and administrators in the settlement of their accounts for receiving and paying money shall be five per cent. on all sums not exceeding $1000, for receiving and paying out the same; two and half per cent. on any excess between $1000, and $5000, and one per cent. for all above $5000.

The mode of stating the allowance of commissions is to compute two and a half, one and a quarter, or a half per cent.

17

3 Johns. C. R. 43.

on the aggregate amount received, and the same on the aggre gate amount paid. Thus if $10,000 has been received, it is $1000 $25

on

* See Addenda

$.408

And the same on the sum paid.

In the case of Hedges v. Ricker, July, 1821, it was contended before the Master, that by the true construction of the rule, the per-centage should be charged upon each sum as received, and each sum as paid, according to amount of each specific sum, and not upon the aggregate of receipts and the aggregate of payments. The case shewed very clearly that the compensation as allowed was wholly inadequate, and that the amount upon the method contended for, would not be more than the executor was reasonably entitled to, and the Master was fully of that opinion. The Master however thought himself bound by the rule ex-parte Roberts to compute the commissions upon the aggregate of receipts and payments, and the Chancellor overruled an exception taken to his report on this point.

In the case of McWhorter v. Benson, Nov. 1823, the subject was brought before the Court upon a claim for allowances for care and trouble, other than a mere commission upon receiving and paying money; the ground taken was that the act intended to grant an allowance, not merely for the payment and receipt of money, but for all the services of an executor, &c. and that the Chancellor by his general rule, had only fixed the rate of compensation for that particular service. It was also insisted, that no general rule could be fixed for the compensation for labour and care about an estate, as it must depend on the circumstances of difficulty, and the degree of judgment and labour requisite for each particular case, which would always vary.

Chancellor Sanford appeared to be of a similar opinion, but to think that it was incumbent upon him by the act to make a general rule. It was understood by the Bar, that he intended to settle the questions underthis act as far as practicable.

CAP. III.

SECTION 1.

REFERENCES RELATING TO INFANTS.

APPOINTMENT of a guardian of Person and Estate.

384.

In England, a petition is presented to the Master of the 1 Turner, Rolls praying a reference to a Master to approve of a guar- 1 Harrison, dian.

513.

Ibid. 394.

In general the court will not appoint a guardian, without this reference; but if the estate is very small, and a full and clear affidavit is presented, it will sometimes dispense with it. The court has appointed without it, where the property was only £1000 in value; but refused where it amounted to £1500. Ex parte Wheeler, 16 Here an application to the court, and an order is unnecesVesey, 266. and case citsary.

The forty fourth rule authorizes the party petitioning, to apply to any Master of the court, without an order previous to the presenting of the petition, and obtain his report upon the particulars directed by the Rule to be ascertained; which report is presented with the petition. These particulars are, the age of the infant; his nomination of a guardian, if over fourteen years; the competency of the proposed person; the amount of the infant's property; the annual value of his real estate; the amount of surety to be given; and the names, description and competency of the proposed sureties.

ed.

Rule 44.

order in

By the English order of reference, "All proper parties are See the to have notice to attend the Master, and to be at liberty to ITurner, propose the guardian." He is also directed to inquire what 385. relations the infant has. Our rule admits of an ex-parte proceeding, and such is the general practice. Although the Master would be warranted under it, in requiring notice to be given to any persons he might deem proper, yet it is obvious this will not be done, except the case is very peculiar.

The parties who ought to be summoned to attend, would be generally the infant's relations or next of kin, viz. those who would be entitled to a distributive share of his estate, if he were dead intestate. Such parties are directed to be noticed in the Circumstances order for approval of a committee of a lunatic. may make it proper to give other persons notice of the proceeding.

See Post.

1 Turner, 386.

Ibid. 387.

See Post,

as to committees & Receivers.

It would tend much to the security of the infant's property, and relief of the Master's responsibility, if this provision of the English order was adopted in our rule. An investigation of the character and competency of the proposed guardian and his sureties, will be more thoroughly conducted, when there are conflicting claimants, or relations of the infant, before the Master. According to English practice, the solicitor, upon applying to the Master, should file with him a state of facts, setting forth minutely all the particulars directed by the rule to be ascertained. (For the form See Appendix, No. 37.)

The state of facts in England, also contains the names and consanguinity of the infant's relations. From this the Master can judge, whom to summon before him.

The state of facts must be accompanied by an affidavit, verifying it, which may be made by the proposed guardian.

If any parties are to be noticed, the summons should be underwritten," To proceed upon the state of facts and proposal of E. D. as guardian of A. B. the infant."

In England if a copy is wanted, it is taken from the Master; with us the parties may inspect the original in the Master's office. Affidavits of the proposed guardian and of his sureties, should be laid before the Master, or he may examine them personally (for their affidavit See Appendix, No. 58.) All enquiries of this character, are carried on in England by means of affidavits. Our court leans to a personal examination; and there can be no doubt that if a guardian or a surety refused to be so examined, the Master would be justified in rejecting him. on that ground alone.

He may also examine witnesses, and should examine the infant personally as to his nomination.

By the English practice, if any party would procure the appointment of a different person as guardian, he brings in a counter proposal, verified in the same manner, and proceeded upon in the same mode as the original proposal.

It is usual with us to lay the sworn petition (which is very minute) before the Master instead of a state of facts, and to produce witnesses as to the fitness of the proposed guardian and the sureties to be examined by him. The English course by a state of facts and affidavits, and summoning the next of kin, would be more secure, often more convenient, and in cases of no opposition, but little more expensive; being only the cost of the summons and service, and one ex-parte attendance of the solicitor. If the petition indeed was drawn as at present, there would be a repetition of the matters set out in the state of facts. But to do this in the petition is certainly needless.

It

is on the report, that the order is made, and that contains all the particulars. The petition should merely state the fact of infancy, the approval of the persons proposed, and sum fixed by the Master, referring to his report for the particulars. (For form See Appendix, No. 40.)

If the relations, who have a principal interest in preserving the estate, attend and assent to the proposed guardian, nothing more in general need be required; and if they do not attend, it may be presumed they have no objections.

If the application is contested, witnesses may be examined both as to character and property; and where the proceeding is ex-parte, if the Master has any doubt or is ignorant of the party's situation he should require proof to these points. Under our practice, as soon as the report is prepared it is delivered to the solicitor, without any summons upon it. By the English course, the usual warrants upon preparing, settling, and signing, are taken out.

1 Turner,

381.

Chancellor's

According to the direction of Lord Chancellor Bathurst, the report should specify the reasons of the Master's approval. "I am directed by my Lord Chancellor to intimate to the Mr. WilMasters of the court, that his Lordship finds it materially ne- mot's, (Lord cessary in all reports of guardians, and maintenance of infants, secretary) that mention should be made in such reports of the age of the circular to infants, and of the nature and amount of the infant's fortune, Aug. 1777. and of the evidence or grounds on which any particular persons are approved of as guardians." (For form of report, see Appendix, No. 39.)

The petition should be left with the Master, as the rule directs him to annex it to his report.

The general rule in fixing the amount of security is, by analogy to that upon the appointment of committees of lunatics, to require it in double the amount of the infant's personal property with interest till he come of age, and if there is real estate, to add the amount of the annual income during minority.

Two sureties are necessary.

the Masters,

1 Turner,

397.

1 Harr. 513.

In England, no sureties appear to be given. The books speak merely of the guardian entering into a 1 Turner, recognizance, and in the bill of costs in Turner's Practice, there is a charge for but one cognizor.

388.

29 Car. 2d.

The infant however has a security, from that recognizance Cap. 3 & 18. binding lands from the time of its inrollment.

In the selection of a person as guardian, the following rules should be regarded.

2 Vernon, 750. 1 Ibid. 313.