125 Cal. 195 | Cal. | 1899
Appeal from an order settling the annual account of the executors, and striking therefrom an item of $1,226.86 for extraordinary services claimed to have been rendered by one of the executors.
The appellants are the executors of the last will and testament of the deceased, and in his will appointing them he made the following provision in reference to their compensation: “In lieu of the commissions allowed by law for executors, which I deem insufficient, I do hereby provide that my said executors shall be entitled to receive the sum of five thousand ($5,000) dollars each as and for full compensation for their services respectively as such executors, in addition to their actual expenses.” Neither of the executors filed a renunciation of his claim for compensation provided by the will.
The personal estate of the testator was valued in the inventory returned by them at the sum of $245,405, and the real estate at $99,500; and in the account presented by them for settlement it appears that the estate of the decedent accounted
Section 1616 of the Code of Civil Procedure provides that the executor “shall be allowed .... for his services such fees as are provided in this chapter; but when -the decedent by his will malees other provision for the compensation of his executor, that shall be a full compensation for his services, unless by a written instrument filed in the court he renounces all claim for compensation provided by the will.” As no renunciation of the claim for the compensation provided by the will was filed by either of the executors, the court was required, under this section, to hold that the provision thus made was a “full compensation for his services,” and to deny his claim for any further allowance for extraordinary services. It will be observed that the amount of compensation provided in the will is largely in excess of the commissions to which the executors would have been entitled if no provision had been so made, and it is reasonable to suppose that when the testator appointed the manager of his farms to be one of his executors he had this fact in mind, and made the appointment in order that after his death his estate might continue to receive the benefit of his services and
We cannot assent to the proposition of the appellants that the provision in section 1618 of the Code of Civil Procedure, “In all cases such further allowance may be made as the court may deem just and reasonable for any extraordinary services”— authorized the court to disregard the provisions of section 1616. The cases here referred to are those provided in the first sentence of the section, viz., “when no compensation is provided by the will, or the executor renounces all claim thereto.” The amount provided by the will must be taken as the measure of compensation which the testator deemed ample for all services to be rendered in the execution of the trust, and if the executors, either upon assuming their office, or by reason of unexpected circumstances occurring during the course of their administration of the trust, are called upon to perform extraordinary services, they must first renounce the compensation provided by the will before they can be entitled to any allowance for such additional services. The compensation of an executor, whether according to the rates fixed by the statute, or a-s determined'by the testator, is not a gratuity, but is in consideration of the services he may render, and the amount fixed by the statute is deemed ample compensation for the services ordinarily required. If the executor would claim that his services entitle him to a greater compensation than that allowed by the statute, he must first renounce that provided by the will, and the court can then make him such allowance as will fully compensate him. Unless such renunciation is made, the provision in the will will be held under section 1616 to be “full compensation” for his •services.
The right of an executor to receive compensation for extra services, in addition to the statutory allowance, was very fully considered in Collier v. Munn, 41 N. Y. 143. In that case one of the executors was an attorney-at-law, and at the request of his coexecutors, and upon their agreement with him that he should be compensated therefor, he rendered services as an att
The order is affirmed.
Garoutte, J., and Van Dyke, J., concurred.