13 Colo. App. 535 | Colo. Ct. App. | 1899
This is an appeal from a judgment of the district court in favor of Morton E. Stevens, administrator de bonis non of the estate of Sam Doss, deceased, and involves solely the amount of compensation to be allowed on final report for the services of such administrator. The decedent died at his residence in Las Animas county, Colorado, about June, 1892, leaving a personal estate consisting principally of cattle and a few horses running upon the open range in Colorado, New Mexico, Arizona, Oklahoma and Texas, by far the larger portion,— more than one half, — being upon the range in New Mexico. In addition to this property, there was a small amount of real estate, also located principally in New Mexico. The total value of the personal estate was about |90,000, and all of the estate was heavily incumbered by mortgage and other evidence of indebtedness, to the extent of more than one half of its value. W. H. Bradley was appointed administrator by the county court of Las Animas county, and served as such until September, 1893, at which time he resigned, and Morton E. Stevens was thereupon, at the request of a number of the creditors, appointed by the court administrator de bonis non. Mr. Stevens was at the time a practicing lawyer in the city of Trinidad. About February 3, 1894, at the request of a number of creditors of the estate, Stevens was appointed by the probate court of Guadaloupe county, New Mexico, as administrator of the assets of the estate being in that territory, which constituted, as we have said, more than one half of the cattle, and a portion of the real estate. In pursuance of this appointment, Stevens proceeded to administer upon the estate, making reports from time to time to the probate court in New Mexico of all such of his acts as related to property in New Mexico, and to the court in Las Animas county of
The first objection raised by the appellants is that the district court was without jurisdiction. This is based upon the provisions of section 508 of the General Statutes, and in support of this contention we are cited to a decision of this court. McKinnon v. Kail, 10 Colo. App. 291. That case does not sustain the point attempted to be made. In that, the district court attempted to assume original jurisdiction in the • first instance. In this the proceedings were properly had
It does not appear from the record in this case for what cause the venue was changed, but a county court having such power under certain circumstances, it will be presumed. in the absence of any showing to the contrary, that the power was rightfully exercised.
The main argument of the objectors is addressed to that portion of the judgment of the court in favor of the administrator for the unpaid portion of the allowance to him by the New Mexico court. In this we think there was no error. The rule laid down by Sehouler, and which has received the approval of all of the authorities to which our attention has been directed,, is to the effect that it is the duty of a domiciliary executor or administrator, so far as may be consistent with his information and the exercise of a sound discretion, to see that ancillary letters of administration are taken out at the situs of the property belonging to the estate, or any portion of it, if it appear to be needful or prudent in order to collect and realize such assets. Sehouler on Executors and Administrators, § 175; In re Ortiz, 86 Cal. 306.
And it makes no difference whether these letters are taken out by the domiciliary administrator or by another. The ancillary administration, however, is solely within the control of the court which grants the letters, and all of the assets of the estate within its jurisdiction must be accounted for to it. It is a separate and distinct administration, entirely independent of the domiciliary administration, except in so far that when it is finally ended, and the administrator discharged, he may be compelled to account for and turn over to the domiciliary administrator such amount as may remain ■in his hands, after the settlement of all claims against, and expenses growing out of the ancillary administration. Even this, possibly, should properly be done by an order of the court having charge of the ancillary administration. No question is raised as to the lawfulness of the action of the
The appellants also raise some question as to the finding of the court of the value of the personal property coming into the hands of the administrator under the domiciliary administration. This was a matter of fact, and such finding not being manifestly against the weight of the evidence presented, will be binding upon this court. The objectors also except to the allowance of $850 for services of counsel in the proceedings pertaining to the final report, on the ground that they conceded that six per cent on the amount of the personal estate might be allowed. It appears, however, that this concession was not made until the parties were in court, and ready to proceed to trial, and moreover, there were other objections to the report which remained to be and were considered, and one of them at least, that in reference to the
With reference to the cross-error assigned by the administrator, we think that the district court was clearly in the right. The statute which bears upon this question reads as follows:
“Executors and administrators shall be allowed as a compensation for their trouble a sum not exceeding six per cent on the whole amount of personal estate, and not exceeding-three per cent on the money arising from the sale or letting of land; with such additional allowances for costs and charges in collecting and defending- the claims of the estate and disposing- of the same as shall be reasonable, to be allowed and paid as other expenses of administration.” General Statutes, sec. 3630.
This section was taken bodily from the statutes of Illinois, and the highest courts of that state have passed upon it and settled its meaning in several cases on all-fours with the one at bar. In Willard v. Bassett, 27 Ill. 38, the question was squarely whether an attorney of the court, who was an administrator, was entitled to an allowance against the estate for professional services in cases which he prosecuted or defended as such administrator. Judge Catón, speaking for the court, said: “ The authorities are uniform that this should not be allowed, and every principle of sound policy forbids if- * * * If he chooses to exercise his professional skill as a lawyer in the defense of the estate, that must be considered a gratuity. To allow him to become his own client, and charge for professional services for his own case, although in a representative or trust capacity, would be holding out inducements for professional men to seek such representative places to increase their professional business, which would lead to most pernicious results. This is forbidden by every
These decisions seem to be within the rule laid down and observed by the authorities generally. In Woerner on the American Law of Administration, § 529, it is said:
“ The statutes of a number of states allow extra compensation to executors and administrators for the rendition of services to the estate outside of the scope of their ordinary duties. Unless such extra compensation is within the language or spirit of the statute, it cannot be allowed, because at common law their personal services are wholly gratuitous.”
A large number of authorities from a great number of states are cited in support of this position. Mr. Schouler lays down substantially the same rule. Schouler on Executors and Administrators, § 545. Under the positive and plain restrictions of our statute, we cannot see how it is possible to hold otherwise. It would seem to be true in this state, as expressed by some of the courts in other states, that when a lawyer becomes a voluntary administrator, he takes his office cum onere, and although he exercise professional skill in conducting the estate, he does not thereby entitle himself to additional compensation. In re Estate of Young, 4 Wash. 584.
We see nothing in any of the authorities to which counsel for the administrator have cited us, to shake us in such a conclusion. None of them seem at all applicable. Save in one,
In the case at bar, it appears from the record before us that the administrator de bonis non, Mr. Stevens, discharged his duties in a highly creditable manner, and that by his efficient services, the estate was saved from insolvency, and was more than enabled to pay its debts. The legal services which he rendered, and for which he ashed compensation, were undoubtedly of material benefit to the estate, and the compensation ashed for such services was, as found by the court, unquestionably reasonable, but we are constrained to hold, as did the trial court, however valuable the services may have been, and however meritorious the claim may be, that its allowance is forbidden by express provision of statute.
For the reasons given, the judgment will be affirmed.
Affirmed.