In Re the Estate of Bishop

*112 OPINION OF PETERS, J. These are petitions by trustees of a perpetual charitable testamentary trust for the allowance of their annual accounts. The accounts, the allowance of which was prayed, Avere the 57th and 58th annual accounts for the fiscal years ending June 30,1942 and June 30,1943, respectively. The only items of the accounts that came in controversy were the trustees’ commissions, viz., (a) those computed upon rents received for the use and occupation of the present Kameliameha Schools, upon the cost of construction of Avhich the trustees had previously received commissions as a “final payment” within the meaning of that term as employed in the existing law at the time of payment fixing the compensation of fiduciaries, and (b) those charged by the trustees upon income received by them during the fis *113 cal year ending June 30, 1943, within which period the compensation to which trustees of charitable trusts were entitled was reduced by amendment in respect to all income received in excess of $105,000 from 5% to 3% on the next $100,000 in excess of $105,000, 2% on the next $300,000 and 1% on all over $505,000. The income of the trust estate during the accounting period covered by the 58th annual account exceeded $505,000. The present Kamehameha Schools were erected by the trustees pursuant to the directive contained in the Avill and codicils of their testatrix, as construed in the case of Smith v. Lymer (post), for which purpose and their perpetual maintenance she bequeathed her entire residuary estate. The federal government leased the present school buildings and grounds for hospital purposes made necessary by the war emergency and it was upon that portion of the rents received therefor, allocable to the school buildings, that the commissions were computed. The laAV of Hawaii in existence prior to January 1, 1928 made no provision for compensation of trustees. Compensation of executors, administrators and guardians, for their services as such, was allowed by statute. (E. L. H. 1925, § 2544.) It was not until 1928 that the compensation of trustees for their services as such Avas fixed by statute. (L. 1927, c. 183, effective Jan. 1, 1928.) Compensation of executors, etc. included commissions upon capital and income. The provisions of the statute pertinent to capital is quoted in the margin. 1 A similar provision in amended form since the amendment of 1927 applies to trustees. *114 The law of Hawaii allowing compensation to trustees as it existed at the accounting period of the 58th annual account is to be found in the Revised Laws of Hawaii 1935, section 3793, as amended by Laws of 1935, Act 124 and as further amended by Laws of 1943, Acts 88 and 149. With the amendment of 1935 we are not concerned. Act 88 of the Laws of 1943, effective April 30, 1943, amends the first paragraph contained in section 3793 referring to compensation of trustees. The paragraph as it existed prior to the amendment and the amendment are paralleled in the footnote. 2 The supplied italics emphasizes the pertinent provisions involved. It should be noted that the words “upon all moneys * * * executors, administrators, trustees and guardians shall be allowed as commissions payable out of the income” are repeated in the amendment of April 30 but qualified by the adverbial phrase “received during each year;” that the words contained in the original amendment “such commissions to be allowed upon each accounting when made” *115 are deleted and the prepositional phrase “to be payable as and when such income is received” is added, qualifying the word “commissions.” Chapter 149 of the Laws of 1943, effective May 11, 1943, quoted in the margin, 3 is an addition to the provisions of section 3793, relating to the compensation of trustees, as previously amended. It is in the nature of a proviso, excepting from the operation of the section compensation to which trustees of charitable trusts may be entitled, limiting trustees’ commissions to a schedule different from and lower than the schedule of commissions applicable to trustees of private trusts and making the provisions of the amendment applicable “to future accounting in existing estates as to new estates.” The circuit judge held that rents received for the use and occupation of the ICamehameha Schools was “income” within the meaning of that term as employed in the statute fixing the compensation of trustees and allowed commissions accordingly. In their 58th annual account the trustees credited themselves with commissions on income from July 1, 1942, the opening day of the account, to May 11, 1943, thé ef *116 fective date of Act 149 of the Session Laws of 1943, according to the schedule of rates contained in section 3793 as it existed prior to the amendment of May 11, 1943 and with commissions upon income from May 11, 1943 to June 30, 1943, the closing date of their annual account, according to the schedule of rates provided by the amendment of May 11, 1943, repeating the charges of 10% on the first $1,000 and 7% on the next $4,000, common to both schedules. The compensation of the trustees as thus computed was also allowed by the circuit judge. The attorney general, a party to the proceeding below, appealed to this court, contending (a) that the trustees, having previously accepted commissions upon the cost of construction of the Kamehameha Schools as a “final payment” within the meaning of that term as employed in Revised Laws of Hawaii 1925, section 2544, and applied by analogy to compensation of trustees, were now estopped from charging commissions upon income received as rent for the use and occupation of the schools and that (b) while section 3793 of the Revised Laws of Hawaii 1935, *117 supra, as it existed at the opening day of the accounting period, controlled up to May 11, 1943, the effective date of Act 149, that to the extent that the commissions charged during the period prior to the effective date of Act 149 included 10% on the first $1,000 and 7% on the next $4,000, such rates of commissions should not he again applied to income received upon and after May 11, 1943, the effective date of Act 149 and that the reduction effected by the Act of May 11, 1943 in commissions to which trustees of charitable trusts were entitled upon income in excess of $105,000 applied and the income received during the accounting period having upon May 11, 1943 exceeded $505,000 after that date the trustees were only entitled to 1 % on the income received after May 11, the rate applicable under the amendment to income in excess of $505,000. Re commissions on rents. No contention is made that the rents received by the trustees during both accounting periods for the use and occupation of Kamehameha Schools was not “income” within the meaning of that term as employed in Revised Laws of Hawaii 1935, section 3793, as amended, upon which the compensation of trustees of both private and charitable trusts are in part computable. The controversy centers upon the legal status of the capital (Kamehameha Schools) from which such rents accrue, resulting from the previous allowance to the trustees of commissions upon the moneys of the trust estate which created such capital. The attorney general contends that by the acceptance of commissions upon moneys of the trust estate expended in the construction of Kamehameha Schools as “final payments” the trustees are barred from asserting the right to commissions upon rents accruing from the Kamehameha Schools, such bar being in the nature of an estoppel in pais. The facts constituting the bar upon which the attorney general relies are as follows: On October 10, 1925 the *118 trustees of the Bishop Estate filed a bill in equity in the circuit court of the first circuit praying the instructions of the court upon certain questions, two of which involved the issue upon this branch of the instant case, via., first, whether they Avere authorized Under the will and codicils of their testatrix and trustor to disuse and dispose of the existing school buildings and plant and to erect and maintain in the place thereof neAV buildings and plant in accordance with certain proposed plans, and second, whether they Avould be entitled to charge and receive commissions as for final payment of moneys expended in the erection and maintaining of such new buildings and plant. The attorney general Avas made party respondent to the suit and duly appeared and answered admitting the allegations of the bill. Upon hearing had the circuit judge answered question one in the affirmative and question tAVO in the negative. Upon appeal to this court both questions were answered in the affirmative. (See Smith v. Lymer, 29 Haw. 169.) Pursuant to final decree of this court, entered May 28, 1926, the trustees thereafter erected the Kamehameha Schools, from Avhich these rents accrued and upon accounting Avere allowed commissions on the moneys expended as “final payments.” At the time that the bill of instructions was pending and up to the time of decree, no statutory provision existed providing for the compensation of trustees for services rendered by them on behalf of their trust estate. The right of trustees to compensation for such services, however, had long since been judicially recognized and, as said by this court in the case of Smith v. Lymer, supra, “By long and continued judicial construction, however, section 2544, R. L. 1925, Avhich fixes the compensation of executors, administrators and guardians has been held to apply by analogy to trustees, and this construction is now so intrenched as to admit of no holding to the contrary.” As a consequence *119 in legal effect all applications of trustees for services rendered by them on behalf of their trust estate for compensation to trustees were upon a quantum meruit and in the absence of facts requiring the application of a different measure of value the resort to the statute fixing the compensation of executors, administrators and guardians was deemed best calculated to determine the reasonable value of their services as trustees. . So that had the facts required a different measure of value of the services to be performed by the trustees, the trustees would have been privileged to present the facts. As it was they apparently were satisfied to have the statute fixing the compensation of executors, etc. applied by analogy. That is what the circuit judge did. And upon the state of the record this court on appeal did likewise. It was.not until January 1, 1928, the effective date of Act 183 of the Session Laws of 1927, that the provisions of section 2544 of the Revised Laws of 1925 were, with certain other amendments with which we are not concerned, made expressly applicable to trustees. The provision for the allowance of commissions upon “final payment” was retained. What expenditures, if any, were incurred in the construction of the new schools between date of decree (May 28, 1926) and June 30, 1928, the end of the fiscal year, in which the existing law fixing the compensation of executors, administrators and guardians was amended to include trustees went into effect does not appear. The major portion of the money expended for that purpose was expended in later years. But inasmuch as the statute as amended by the legislature of 1927 retained the provision for the allowance of commissions upon “final payment” we shall assume that the trustees accepted commissions upon the moneys expended in construction of the present Kamehameha Schools as final payment as the term is employed in section 3793, supra, both before and after the amendment of 1927. *120 In my opinion these facts do not estop the trustees from asserting the right to commissions upon rents received from Kamehameha Schools. This court, in its opinion in the case of Smith v. Lymer, recognized the anomaly of the trustees of a perpetual charitable trust making “final payment” to themselves. It said: “It is obvious that in a perpetual trust such as is here involved, the trustees will never, strictly speaking, be called upon to make a ‘final payment’ to beneficiaries for at no time will it be the duty of the trustees to pay the balance of the trust estate into court ‘or to the parties thereunto entitled.’ ” (p. 179) “It is true that when the proposed sale of lands shall have been made and the proceeds thereof devoted to the contemplated permanent improvements, the trustees will in reality have divested themselves of no portion of the corpus of the estate, and title to the new species of property acquired will be and remain in the trustees as fully as was title to the property sold.” (p. 181) Moreover, the court recognized the possibility of the future sale of the proposed improvements and the return to the trustees of proceeds of sale. Obviously, to such returned capital income might accrue. This court said: “The same will be true in case future developments necessitate the sale of the present proposed improvements, and the fact that in such event a portion of the funds now to be spent may perhaps be returned to the trustees * * * .” In other Avords, the only question in respect to commissions propounded by the bill and construed by this court in the case of Smith v. Lymer Avas Avhether expenditures contemplated in the erection of the Kamehameha Schools should be considered upon the allegations of the bill as final payments within the meaning of the statute, despite the fact that the trustees retained title to the capital into which final payments were converted and there Avas a pos *121 sibility, however remote, of income from the proceeds of reconversion. That the court did not anticipate the present contingency and the accrual of rents from the Kamehameha Schools or at least did not mention it as a possibility is beside the point. Its recognition of similar possibilities is sufficient and although it took pains to point out that the trustees were limited to but one final payment even though the trustees might again be called upon to replace the present schools with new school buildings, the opinion makes no mention of to what commissions the trustees might be entitled in the event of the accrual of the income from converted capital upon which commissions as for “final payments” had been allowed. Commissions since the effective date of the amendment of 1937 have been apparently allowed by the circuit judges having jurisdiction of the trustees’ accounts, as final payments, as that term is used in section 3793, as amended, following the construction placed upon that term by this court in the case of Smith v. Lymer. The facts, in my opinion, present no ground of estoppel. No inconsistency appears in the position now taken by the trustees in praying the allowance of commissions upon income in the shape of rents accruing from the Kamehameha Schools and the position formerly taken by them upon their bill for instructions. Nor by their acceptance of commissions upon such expenditures as final payments have they adopted a legal status of capital assets that precludes them from asserting the additional right to commissions upon income accruing from capital assets into which final payments have been previously converted. The defense of res adjudicata has not been raised and Ave expressly refrain from comment upon the legal effect, if any, of the decree in the case of Smith v. Lymer upon this issue. Re rates of commissions on income generally. In my *122 opinion the compensation of trustees for the fiscal year ending June 30, 1943 is governed by the provisions of Act 149 of the Session Laws of 1943 and is measured by the graduated schedule of commissions contained in that Act upon the initial and succeeding amounts of income received by the trustees during the entire year ending June 30, 1943. By the thirteenth article of the will creating the trust of which petitioners are trustees, it is provided that the trustees “annually make a full and complete report of all receipts and expenditures.” Similar requirements have existed since January 1914, first by rule 20 of the rules of the circuit court of the first judicial circuit, to the circuit judge at chambers of which these trustees are accountable and later and since by the provisions of Laws of 1915, Act 101, amended by Laws of 1929, Act 169, incorporated in the Revised Laws of Hawaii 1935 as section 4713 and amended by the Laws of 1935, Act 154. The trustees account annually on June 30 of each year and presumably adopted the fiscal year ending June 30 of each year as their accounting period. The general rule of law is that the compensation of testamentary trustees is governed by the law in force at the time of the settlement of their accounts. 4 It is also equally well settled that the commissions of trustees are to be allowed upon the settlement of their accounts and that their commissions cannot be legally taken before that time. 5 The legal effect of an amendment during'an accounting period changing the legal compensation of trustees is not a matter of first impression, the same question having been *123 presented to this court in the Estate of da Silva, the opinion in which is contained in 31 Haw. 78. In that case the annual accounting period of the trustees ended May 8, 1928, at which time they filed their first annual account. The 1927 legislature amended the existing law fixing compensation of trustees effective January 1, 1928, the effect of which was to increase a rate of commission applicable. The amendment of 1927 contained the added provision: “These provisions shall apply as well to future accounting in existing estates as to new estates.” In the da Silva case this court held that the law in effect upon accounting, i. e., the law in effect, upon and after May 8, 1928, and up to the date of decree, controlled. The amendment of May 11, 1943 contains the same additional provision. And it is reasonable to assume that the legislature in using the same language in Act 149 of the Session Laws of 1943 adopted the construction placed thereon by this court in the da Silva case. Hence, following the ruling in the da Silva case, section 3793 as amended by Act 149 of the Session Laws of 1943, is the measure of compensation to which these trustees are entitled for services rendered by them during the accounting period ending June 30, 1943, unless it may be said that the provision of Act 88 of the Session Laws of 1943, making commissions on income “payable as and when such income is received,” altered the situation and entitled the trustees to take their commissions at the rates provided by the law existing at the time Avhen the income upon Avhich the commission is computed Avas received. It must be obvious to the casual reader of section 3793 that compensation allowed trustees thereunder is for all the services performed by them in their fiduciary capacity during the annual accounting period. In other words, trustees are not paid commissions by way of compensation for the services rendered by them in each instance when income is received, as in the case of an ordinary collector, *124 blit for all the services rendered by them on behalf of the trust estate during the accounting period. The method of applying fixed rates of commissions to income in addition to other commissions allowed upon capital is merely a means of determining compensation for all services rendered. It is not until the conclusion of the accounting period that the method of computation of the compensation of fiduciaries is complete and may become final. By section 4718, supra, annual accounting by trustees is compulsory. By section 3644 of the Revised Laws of 1935 the circuit judges of the several circuit courts at chambers have power within their respective jurisdictions to hear and determine all matters in equity. By section 4701 of the Revised Laws of 1935 there is committed to the several circuit judges the power and authority to hear and determine in equity suits and proceedings for enforcing and regulating the execution of trusts. The provisions of law in respect to accounting by fiduciaries and the provisions of law in respect to the jurisdiction of the circuit judges at chambers synchronize, with the result that the accounts of fiduciaries • including their charges for commissions are annually before the circuit judge at chambers for allowance and settlement. The end to be accoxnplished by compulsory accounting is to. secure the judicial liquidation axid settlement of the affairs of the trust and to determine the rights of the trust estate against the fiduciary and his rights as against the trust estate. And the proceeding involves an adjudication upon each item of the account. 6 The concepts of section 3793 in respect to annual compensation and the necessity of judicial allowance are retained in the axnendment of April 30. It expressly provides, similarly as its predecessor, that the commissions *125 “shall be allowed.” The word “allowed” connotes judicial action. Further, in the amendment appears language not theretofore employed limiting the payment of commission to “income received during each year.” Correlative to the right of fiduciaries to compensation for their services is the judicial power exercised by courts having jurisdiction over trusts to deny compensation in whole or in part to trustees guilty of neglect of duty, misfeasance or malfeasance in office. A trustee who has abused his trust forfeits his right to compensation. At first blush it would seem that the prepositional phrase “to be payable as and when such income is received” is a contradiction of the word “allowed” but upon reflection the conclusion is inevitable that the language refers to two different things, i. e., payability and allowance. The definition and connotations of the word “allow” include consent, approval, sanction, as “to alloAV an item in an account.” 7 Obviously, the allowance referred to is judicial alloAvance, Where statutes exist elseAAdiere upon the subject, judicial alloAvance of the compensation of fiduciaries is a uniform requirement. 8 Texas is the sole *126 exception. 9 No doubt, by making commissions on income “payable as and when such income is received” the legislature intended to permit fiduciaries to anticipate their commissions. But by the retention of the word “allowed” and the qualification of the word “income” by the participial phrase “received during each year” it is also clear that they did not intend to eliminate judicial allowance. Too close a scrutiny of statutory language more often than not creates confusion instead of clarity. But realistically it is inconceivable that the legislature intended to release fiduciaries from the necessity of judicial allowance of commissions charged by them and put surcharges against fiduciaries for commissions improperly deducted on the same plane as money judgments. If so, faithless insolvent fiduciaries could thumb their noses at the judges to whom they are called upon to account. It is argued that by the language “such commissions to be payable as and when such income is received” contained in the amendment of April 30 and the deletion of the language “such commissions to be allowed upon each accounting when made” from the statute as it existed prior to amendment, created a vested right in the fiduciary to commissions upon income as and when the income upon *127 which the commissions are computed was received. That may he so. But commissions also must be judicially allowed. To say that under Act 88 commissions when earned vest in the fiduciary is not enough. They must also be judicially allowed and the time when the judicial power to allow is invoked and not the time of payment controls the rates of commissions applicable. If the amendment of April 30, 1913, making commissions upon income as and when the income upon which the commission is computed was received, operated to make commissions immediately payable in the sense that they were deductible when earned and a property right therein vested in the fiduciary entitled thereto, this did not, in my opinion, eliminate the necessity of judicial accounting. And if the necessity of judicial accounting remained and continued until final judicial allowance and settlement, then if there be accorded to the da Silva case all the implications explicit in its rationale, the time of accounting and not the time of payment of commissions controls and the schedule of commissions obtaining at the time of accounting and not the current schedule of commissions in effect at the time of payment apply. If the commissions under Act 88 vest in the fiduciary when earned, it must be upon the theory that the statute creates a debt payable when earned. If so, as far as the necessity of judicial allowance is concerned, I see no difference between a debt payable to the fiduciary for services rendered and to be rendered by him as such fiduciary and a debt payable to another for services rendered on behalf of the trust estate. In the latter instance the fiduciary by payment merely discharges an indebtedness payable to a stranger while in the former by payment to himself he discharges an indebtedness payable to himself on behalf of the estate. That a trustee is not exonerated from liability and surcharge for the use of the funds of the estate *128 in the payment of expenses even though properly incurred until judicial allowance of payment is fundamental. I see no reason why the same rule should not similarly apply to' the payment by a trustee of an indebtedness to himself. Nor is it a matter of any special concern that the schedule of commissions upon receipt of income differs from' that obtaining at the time of accounting. It is merely a matter of adjustment upon accounting of the deficiency or excess accordingly as the rates of commissions were by amendment reduced or increased. And if I am correct that the commissions computable upon income are but a part of the annual compensation for annual services, the schedule of commissions on income obtaining at the time of accounting applies to all income received during the accounting year. That an absolute property in commissions earned does not vest in the fiduciary is apparent from the correlative power of courts having jurisdiction over trusts to which reference was heretofore made. Even if vested, commissions on income are subject to judicial divesture in whole or in part for cause. Without attempting to define the estate of the fiduciary in commissions earned on income prior to judicial allowance under the amendment of April 30 an absolute estate therein is not created. So that with whatever assurance, it may be said that commissions on income under the provisions of Act 88 were assignable or descendable, permitting their anticipation and deduction before judicial allowance, the necessity of judicial allowance remained and the law in existence at the time of accounting and not the payability of commissions controls in respect to the rates of commissions applicable. To say that the legislature by making commissions on income payable immediately intended that the rule enunciated in the da Silva case should not apply, is to give to the use of the word “payable” an unusual and strained *129 construction at variance with the accompanying language contained in Act 88, inconsistent with the express provisions of Act 149, making that Act retrospective as well as prospective and in defiance of the power and authority reserved to circuit judges at chambers to enforce and regulate the execution of trusts. Consistently with the views herein expressed, the decree of the circuit judge in respect to commissions on rents should be affirmed, otherwise reversed. Footnotes [1] “Fees and expenses of executors, administrators and guardians: Executors, administrators and guardians shall be allowed the following commissions upon all moneys received and accounted for by them, that is to say: “Upon all moneys received representing the estate at the time of the *114 institution of the trust, such as cash in hand and moneys realized from securities, investments, and from sales of real estate and personal property other than interest, rents, dividends and other profits coming due after the inception of the trust, two and one-half per centum. “Upon the final payment thereof or any part thereof, two and one-half per centum; provided, however, that no commission shall he allowed as for final payments of such moneys except upon amounts actually expended and upon balances paid into court or to the parties thereunto entitled, upon the final settlement of the services for which such executors, administrators or guardians shall have been appointed and qualified.” [2] “Fees and expenses of executors, administrators, trustees and guardians: Upon all moneys received in the nature of revenue or income of the estate such as rents, interest and general profits, executors, administrators, trustees and guardians shall he allowed as commissions payable out of the in *115 come, ten per centum for tlie first thousand dollars, seven per centum for the next four thousand dollars, and five per centum for all over five thousand dollars, such commissions to be allowed upon each accounting when made but not oftener than once a year.” *114 “Fees and expenses of executors, administrators, trustees and guardians: Upon all moneys and other property received in the nature of revenue or income of the estate, such as rents, interest, dividends and general profits, executors, administrators, trustees and guardians shall be allowed as commis *115 sions payable out of the income received during each year, ten per centum for the first thousand dollars, seven per centum for the next four thousand dollars and five per centum for all over five thousand dollars, such commissions to be payable as and when such income is received, but said rates of ten per centum and seven per centum to be applied not oftener than once a year.” [3] “Be It Enacted by the Legislature of the Territory of Hawaii: “Section 1. Section 3793 of the Revised Laws of Hawaii 1935, as amended, is hereby further amended by inserting therein, following the first full paragraph thereof appearing on page 621 of said Revised Laws, the following paragraph: *116 “ ‘Notwithstanding any other provisions of this section or of any other law, in the case of an estate of a charitable trust, the commissions of the trustees shall be limited to the following schedule of percentages on all moneys received in the nature of revenue or income of the estate, such as rents, interests, and general profits: 10% on the first....................................$ 1,000.00 7% on the next.................................. 4,000.00 5% on the next .................................I 100,000.00 3% on' the next .................................. 100,000.00 2% on the next .................................. 300,000.00 1% on all over.................................... 505,000.00; but said schedule of percentages shall be applied not oftener than once a year. “ ‘Such trustees shall also be entitled to just and reasonable allowances for bookkeeping, clerical, and special services and expenses incidental thereto.’ “Section 2. This Act shall apply as well to future accounting in existing estates as to new estates.” [4] Arnold v. Alden, 173 Ill. 229, 50 N. E. 704; Key r. Jones, 52 Ala. 238; Whitehead v. Draper, 117 N. Y. Supp. 539, 541. [5] Beard et al v. Beard et ah, 140 N. Y. 260, 35 N. E. 488. [6] Hall v. Grovier, 25 Mich. 426, 436. [7] Funk & AVagnalls New Standard Dictionary. [8] In the following cited statutes the verb “allow”, in varying syntactical forms is employed uniformly in reference to the compensation of fiduciaries, in some instances the reference being to the substantive right of the fiduciary to compensation and in others to the power of the court to allow it:Ala. Code (1940) tit. 58, § 5; 3 Ariz. Code Ann. (1939) §§ 38-1402, 38-1404; 1 Pope’s Dig. Stat. of Ark. (1937) § 183; Deering’s Cal. Probate Code (1937) § 1122; 4 Colo. Stat. Ann. (1935) c. 176, § 232; Fla. Stat.. (1941) §734.01; 1 Idaho Code Ann. (1932) §§ 15-1105, 15-1107; 3 Idaho Code Ann. (1937) § 66-103; Ill. Rev. Stat. (1935) (Cahill & Moore) c. 3, § 135, e. 148, § 35; 3 Ind. Stat. Ann. § 6-1416; Iowa Code (1939) c. 509, § 12063; Me. Rev. Stat. (1930) c. 75, § 43; 23 Mich. Stat. Ann. § 27.3Í07; 2 Minn. Stat. (Mason 1927) § 7788; 1 Miss. Code Ann. (1942) c. 3, § 642; 1 Mo. Rev. Stat. (1939) § 220; 4 Mont. Rev. Code Ann. (1935) § 10287; 2 Rev. Stat. of Neb. (1943) § 30-1412; Nev. Laws 1941, c. 107, §§ 206, 207; 1 N. J. Rev. Stat. (1937) § 3:11-1; N. U=Y. Surr. Ct. Act, Thompson’s Laws of N. Y. (1939) § 285; N. C. Gen. Stat. (1943) § 28-170; Throckmorton’s Ohio Code Ann. (1940) Probate Code, § 10,506-52; Gen. Laws of R. *126 I. (1938) c. 580, § 7; 2 S. D. Code (1939) § 35:1603; Michie’s Tenn. Code Ann. (1938) § 8292; Utah Code Ann. (1943) §§ 102-11-25, 102-12-32; Vt. Pub. Laws (1933) § 2819; Va. Code Ann. (1942) § 5425; Pierce Code Wash. (1939) § 9790; W. Va. Code Ann. (1942) § 4195; Wis. Stat. (1941) § 317.08; Wyo. Rev. Stat. (1931) §§ 88-2606, 88-2607. Other statutes use similar terms, i. e., Ky. Rev. Stat. (1942) (Baldwin’s) § 386.180; 2 N. M. Stat. Ann. (1941) § 33-1210; 3 N. D. Rev. Code (1943) § 30-2004; 2 Ore. Comp. Laws Ann. § 19-1009; “shall receive,” N. C. Gen. Stat. (1943) § 28-170; “shall be entitled," Ga. Code (1933) § 113-2001, 1941 Supp. to Kan. Gen. Stat. (1935) § 59-1717; 2 Mass. Gen. Laws, c. 206, § 16, “shall have.” [9] Vernon’s Tex. Stat. (1936) c. 28, art. 3689. See Smith v. Belding, 237 S. W. (Tex. Civ. App.) 246.