65 Cal. 309 | Cal. | 1884
The surviving wife of the intestate was entitled, under the law, to administration of the estate (§ 1365, Code Civ. Proc.); but upon a promise made to her by her eldest son that he would not charge for his services in administering it, she relinquished her right in his favor, and, upon filing her written consent to his appointment, he was appointed administrator. Having duly qualified, he administered; but in his final account he charged $2,454.98, commissions for his services, which the court refused to allow; and it is contended that the refusal was error, because the law allows him his commissions notwithstanding his promise.
It cannot be presumed, however, that in making the promise, under which he obtained his appointment, he intended to practice a deceit upon the court or the estate. Bather it must be presumed, that, as he obtained the appointment upon the faith of his promise, he undertook the administration according to its terms, and with the intention to renounce his claim to the commissions which the law allowed him. There is no question that an executor or administrator, like any other trustee, may renounce his claim to compensation for performance of the duties of his trust, and a promise made by him before his appointment, that he will not charge for his services, may be regarded as equivalent to the renunciation of his claim.
So in McCaw v. Blewit, 2 McCord Eq. 338, where an administrator had obtained his appointment on the express condition that he would not charge commissions, the chancellor refused to allow them, and the Supreme Court of the State affirmed his judgment, saying: “The administrator stipulated that he would not charge, and he cannot boav be permitted to violate that contract. That which was expressly declared to have been intended as a gratuity shall not now be converted into a demand.”
Judgment affirmed.
Ross, J., and McKinstry, J., concurred.
