Estate of Love

COFFEY, J. This is a motion to confirm the report of the referee to whom the matter of the final account of the executor was referred, and to settle said account in accordance with said report, and for a decree distributing the property of said estate to the parties entitled thereto. The motion comes before this department on stipulation. The parties interested are the executor, John Lord Love; Leila L. Foster, who appears as the successor in interest by purchase [548] of Martha C. M. Love, the widow and residuary legatee and devisee of the decedent; the Pacific Bank and the Hibernia Savings and Loan Society, mortgagees. On the hearing of the motion the executor appeared by John S. Bugbee, Esq., and T. B. Bishop, Esq., who opposed confirmation of the report of the referee; and Leila L. Poster, contestant, appeared by Geo. R. B. Hayes, Esq. As to claim for extraordinary services: There is no error here. In my judgment the executor is entitled to no compensation for extraordinary services. It is true he performed a duty advantageous to the estate, but he would have been grossly negligent if he had not used his ability in and knowledge of the law to have done so; and it appears a particular stress was laid by his mother upon the fact that he was a lawyer, and there was no necessity of going to extra expense of employing another to do the duty the executor was competent to perform. The principle and the policy which oppose the allowance of such a claim are too well settled to be now disturbed or assailed: Collier v. Munn, 41 N. Y. 143. As to value of estate: I think the proof is that the value of the estate was no more than $49,000, according to evidence of Middleton and Magee; and I think the commissions of executor should be based upon this proof. As to valuation, there is no error. As to fee in Clark v. Reese, it seems to me Harlow S. Love earned a right, dependent upon the result, to the portion allowed by the referee; and that when the executor was paid the one-half of the contingent fee, his associate, Campbell, paid it in recognition of the interest the decedent had in the case as attorney. The moral right of the estate to a portion of this fee is very clear; and the apportionment by the referee seems to be based upon a correct principle. If there is any doubt in my mind, it is that the estate has had less than its due awarded to it. As to the delay in settling the estate, some indulgence may be extended to the executor, after examining his evidence. While ordinarily in such a case he might seem to be chargeable with great negligence, and an extreme lack of diligence [549] in closing the estate, the peculiar circumstances here induce me to view his apparent dilatoriness with charity; and I should not feel justified in imputing to him very great blame. Much of the delay was caused by the exaggerated notions of his mother as to the value of the property, and while a more methodical business man would not regard such considerations, we cannot entirely remove from our view the influence his mother had over him in protracting the settlement, in view of her interest in the estate. As to the Bornheimer lot, I think the referee did not err in charging the executor with the sum of $825. Beyond that, I think the referee erred in charging the executor with the full value of the lot. I think the executor acted in good faith and used his best judgment in that case, and should not be held accountable for error in the exercise of that judgment, if it were an error. The items aggregating $351.31 (page 7 of referee’s report) were properly rejected, the claims not having been properly presented or allowed, except the items of $20 and under, Nos. 6, 20, 115, 117: Code Civ. Proc., sec. 1632. As to commissions of executor: The right to commissions on the part of executor is absolute under the statute. The strongest cases uphold this view where the compensation is fixed by law. In this respect the referee erred, and the executor is entitled to his commissions on the proved value of the estate, to wit, forty-nine thousand dollars ($49,000). As to payments made to German Savings and Loan Society and the French Savings Bank: I think the referee erred in rejecting the claims for the payments to these accounts, because it appears the moneys obtained were devoted to the maintenance of the widow and her family, and with a view to the preservation, care and management and settlement of the estate; and it was done for and at the request of his mother, who was the universal devisee and legatee. As to items rejected, No. 18 (for abstract in loan from German Bank), No. 37 (for abstract), and item No. 25 (paid Dalton for driving off squatters), the referee erred, as I think these items were proper charges against the estate. Items [550] Nos. 4, 26, 86, 118, 112 were properly rejected by the referee, Items Nos. 13, 66, 72 and 80 were also properly rejected, for the reasons set forth in the report of referee. I think the referee erred in rejecting the percentage for redemption in the items Nos. 82, 83, 84, 85, as under the circumstances adverted to in the executor’s testimony I do not feel at liberty to hold him culpable to this extent. Item No. 92 was properly rejected. As to $780 received for property taken for Buena Vista Park, the referee has not erred in his findings in that particular. The executor is properly chargeable with that sum, and I find nothing in the record'which justifies a reversal of the referee’s judgment as to that. As to the estoppel claimed for the Hibernia Savings and Loan Society: I think the loan made by the bank was upon the faith of representations made to its attorney by the executor, which estop him from claiming commissions as against the bank. In this finding of the referee I see no error. In all respects, except as herein modified, the report of the referee should be confirmed, and it is so ordered. In Case an Executor or Administrator is Himself an Attorney, lye cannot charge the estate with the expense of another attorney to assist him in conducting an ordinary administration, unattended with any legal or other complications. He is required to exercise his own professional skill, and this without extra compensation. Undoubtedly complications or litigation may arise which will entitle an administrator, though himself a lawyer, to the assistance of legal advice and counsel, but he cannot enlist such assistance, and have the cost thereof allowed in his account, in conducting ordinary probate proceedings: 1 Ross on Probate Law and Practice, 765. An Executor or Administrator does not Necessarily Forfeit His Eight to Compensation by dereliction of duty. In the event of the estate sustaining loss by his default or neglect, he should be charged with such loss in his account, and be allowed his commissions: Estate of Carver, 123 Cal. 102, 55 Pac. 770. The Value of an Estate, for the Purpose of Calculating the Commissions of the executor or administrator, is determined prima facie by the appraisement contained in the inventory. The appraised value is not conclusive, however, and if it is questioned, the court [551] may institute an inquiry into the actual value: Estate of Carver, 123 Cal. 102, 55 Pac. 770; Estate of Fernandez, 119 Cal. 579, 51 Pac. 581; Noble v. Whitten, 38 Wash. 262, 80 Pac. 451; Estate of Mason, 26 Wash. 259, 66 Pac. 435; Estate of Smith, 18 Wash. 129, 51 Pac. 348; Wilbur v. Wilbur, 17 Wash. 683, 50 Pac. 589.