80 P. 861 | Cal. | 1905
This case is here on an agreed statement of facts and was begun under the provisions of section
The agreed statement makes no attempt to show what part of the services, if any, was performed, or what proportion, if any, of the commissions earned before defendant's term of office expired. Commissions were claimed by defendant and allowed at the hearing and approval of the final account in each estate. Presumably the commissions covered the entire service both before and after the expiration of his term of office, for it is only at the close of the administration that the amount can be ascertained or ordered paid.
The court adjudged that said Kellogg received said sum of money as a trustee of said Los Angeles County, and that the same is the property of said county, and ordered him to pay the said sum into the county treasury. Defendant appeals from the judgment and from the order.
The public administrator is a county officer. (Pol. Code, sec. 4103; County Government Act — Stats. 1897, p. 472) and "must perform such duties as are prescribed in chapter XIII, title XI, part III of the Code of Civil Procedure." (Pol. Code, sec. 4303.) Among other duties he "must take charge of the estates of persons dying within his county, as follows: —
"1. Of the estates of decedents for which no administrators are appointed, and which, in consequence thereof, are being wasted, uncared for, or lost;
"2. Of the estates of decedents who have no known heirs;
"3. Of the estates ordered into his hands by the court; and,
"4. Of the estates upon which letters of administration have been issued to him by the court." (Code Civ. Proc., sec. 1726.)
Section 1743 of the Code of Civil Procedure is as follows: "When no direction is given in this chapter for the government or guidance of a public administrator in the discharge of his duties, or for the adminstration of an estate in his hands, the provisions of the preceding chapters of this title must govern" (i.e. such as relate to administrators generally).
Appellant contends that the office of public administrator is a mere qualification, and when letters are granted to him because of such qualification he occupies precisely the same position towards the estate as any other administrator; that his authority is derived wholly from his appointment by the issuance of letters to him; that he has no authority in the premises by virtue of his commission as public administrator *593
and his position as administrator of any particular estate is not affected in any respect by the expiration of his term of office as public administrator. (Citing Beckett v. Selover,
In Rogers v. Hoberlein,
But for the provisions of the County Government Act, supra,
making the public administrator of Los Angeles County a salaried officer, doubtless section 1618 would measure his compensation. The act, however, fixing his compensation by a salary and directing him to keep a book recording therein "all fees or compensation of whatever nature, kind, or description," and also providing that he must pay monthly into the county treasury the fees allowed him in all cases, and declaring that his salary shall be in full compensation for all services, is a special act and must control. (Healy v. Superior Court,
Appellant insists that it was not only his right to continue his administration, after his term closed, but that it was his duty; and that it is but just and fair to compensate him, since he was but performing a duty imposed upon him. In a sense it is true that so long as his letters remained unrevoked, it was his right and duty to faithfully execute his trust, and, if there was no way by which he could have relieved himself of this trust, the equity of his claim for compensation, under an implied promise, might have some force. But it is not true *597 that he had no means of relief. He knew at the November election whether he was to continue in office; he had two months in which to close the business and prepare to turn over his trust to his successor. He should have asked the court by appropriate petition to revoke his letters, resigning his appointment in estates remaining unadministered; he should have stated his accounts to the close of his term and asked to be relieved from further performance of the trust. It would have been the duty of the court to settle his accounts, accept his resignation, revoke his letters, and direct his successor to take charge of the estate. (See Code Civ. Proc., secs. 1726, 1735.) If for any reason the successor could not act, the court should have appointed a special administrator. With this means of being relieved, the outgoing officer still persists in continuing to administer or refuses to relinquish his trust to his successor, he cannot be heard to complain if his services are regarded as voluntary and he be denied the right to any compensation therefor, except such compensation as he had already received by way of salary.
Since the transcript was filed the parties have stipulated that in one of the estates administered by defendant he is charged with having received $175.85 in excess of the amount in fact received by him as fees and commissions, and that if the judgment be affirmed this amount should be deducted therefrom.
It is advised that the order be affirmed, and that the sum of $175.85 be deducted from the judgment, and as thus diminished it be affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed, and the sum of $175.85 deducted from the judgment, and as thus diminished it is affirmed.
Lorigan, J., Henshaw, J., McFarland, J.