Estate of Shillaber

COFFEY, J. Objections sustained to items for telegrams July 6th, $1.30; July 6th, 50c.; July 6th, 75c.; July 6th, 50c.; July 7th, 85c.; July 9th, 35e.; July 9th, 25c. Fifteen per cent should be taken from all premiums of insurance, it appearing from the testimony that Mr. Gunther was agent for the estate, and that he received, or is about to receive, not less than that amount of premiums as commissions for procuring the insurance. As to the $100 paid to Josiah Cook, an attorney at Buffalo, the court repeats what it said with reference to the special administrator in a similar connection, that, having acted in good faith in journeying to New York, in response to the telegram from Buffalo, he should be allowed whatever proper expense was incurred in that regard; and, whether or not he was mistaken in his view of the law, the court esteems it just to allow this item. Item, August 31st, E. W. Gunther $50, for preparing proofs of loss. I do not think this is a proper charge against the estate, for the reason that, if I correctly understand it, it is the duty of the executor to make and prepare such proofs. Items for September 25th, J. F. O’Beime, $2; September 30th, J. F. O’Beirne, $5.50; October 3d, George Jewett, $34; December 14th, J. F. O’Beime, $16 should be disallowed. [124] With references to the charges of commissions paid E. W. Gunther for collecting rents, as well as the three items of cash paid Mr. Gunther on May 25th, June 5th and 12th for serving notices, the court will repeat what it said upon the settlement of the account of the special administrator: “When in the care and management of a large estate it is shown to be impracticable to do without clerical assistance to collect rents and keep accounts, the court usually makes some allowance, but the exercise of this discretion should be guarded. “The executor is- expected to perform some labor and to use the utmost economy consistent with the protection of the estate entrusted to his custody and care. I have never made such allowances without rigorous proof of necessity, even when no objection was interposed; but such allowances have been made in probate courts repeatedly under such circumstances as are suggested in this case. “Even if proper, however, the charge is out of proportion to the. result. I shall allow at the rate of four per cent upon collections; reserving to myself the right in other accounts to deal otherwise with any similar item, and acting now upon the evidence before me and my present view of duty. ’ ’ I am inclined to think that under all the circumstances of this estate it is reasonable to allow something for such service, but, taking into consideration the relation of the recipient of this commission to the executor, three per cent seems to be sufficient. The item is reduced to that amount. The charges for serving notices are allowed. With reference to the items embraced under objection 4, so much of the charge as is for executor’s loss of time should be struck out; and as for other expenses, for the trip to Los Angeles, while I consider that executors should be more frugal in disbursing the moneys of estates, yet in this case it may be that the expenditures were justified by the circumstances, so I shall disallow objections as to all but what I have herein indicated. As to the charges of the appraisers, I am of opinion that that matter was adjudicated by the order allowing the amount, after notice given, and that, apart from that, while the appraisers should have preserved a minute account of [125] their services, day by day, in this as in all .other cases, the court would feel compelled from the evidence, if it considered the matter open for inquiry at this stage, to allow the items. As to the ninth objection: “August 25th, William Hoff Cook, services $1,500,” the court repeats the language of its opinion in the matter of the account of the special administrator. “The executor is entitled to such assistance, even when he himself is an attorney and he needs other counsel. In this case, while he has been actively participant in all the proceedings, yet the counsel claiming the allowance has done, before the court, work entitling him to consideration, and his evidence is that in this service he is not a business partner of the executor. The executor, however, is a lawyer of competency and experience; and he must expect, hereafter, that the court will consider this fact in dealing with his accounts.” So considering in the present instance, the court reduces this item by one-third, making it $1,000. With regard to objection 10, commissions of executor. This item is unauthorized by law. “An administrator’s commissions should not be allowed him in the settlement of his annual account, but when he has rendered his final account”: Estate of Minor, 46 Cal. 564. All objections and exceptions not herein specifically dealt with are overruled and denied. For Authorities upon the questions involved in the principal case, see Estate of Shillaber, ante, p. 120, and note. That an administrator may charge the estate with the traveling expenses of his attorney incurred in preserving the assets of the estate, see Estate of Moore, 72 Cal. 335, 13 Pac. 880; Estate of Byrne, 122 Cal. 260, 54 Pac. 957.