property accounted for, even though it exceeds the appraised value.16 Assets which do not come into the hands of the representative can not be considered in fixing the amount of his compensation.17 § 1589. At What Period Compensation May Be Allowed the Representative. Until the estate has been administered and is ready for distribution and the final account of the representative has been settled and allowed, it is often impossible to determine accurately the amount and value of services rendered by the representative; and this is true whether the representative is to receive as compensation an allowance by the court according to the value of the services rendered, or a fixed sum based upon a percentage of the value of the assets accounted for by him, or a percentage of his receipts or disbursements. Likewise until there has been a final accounting and settlement it is largely impossible to determine whether or not the representative has been guilty of neglect, devastavit, fraud or other wrong, for which he may not only be required to make good the loss, but may forfeit his right to compensation. It has therefore been held in the absence of statutory regulations that the representative is not entitled to his commissions or an allowance for compensation until the final settlement of his accounts.18 But although full com 16 Matter of Lunalilo, 13 Hawaii 317; Evans v. Iglehart, 6 Gill & J. (Md.) 171; Ladd v. Stephens, 147 Mo. 319, 48 S. W. 915; Matter of Whipple, 81 App. Div. (N. Y.) 589, 81 N. Y. Supp. 393. 17 Estate of Coursen, 6 Cal. Unrep. 756, 65 Pac. 965; Lamar v. Lamar, 118 Ga. 684, 45 S. E. 498; Immendorf's Estate, 21 Pa. Co. Ct. 268; De Loach v. Sarratt, 58 S. C. 117, 36 S. E. 532. 18 Estate of Barton, 55 Cal. 87; In re Levinson, 108 Cal. 450, 456, 41 Pac. 483, 42 Pac. 479; Matter of Sawyer, 124 Iowa 485, 100 N. W. 484; Rucker v. Lambdin, 12 Smed. missions may not be ascertainable or allowed until final settlement, yet the representative, by the faithful performance of his duties, earns a portion of his commissions prior to final accounting, and since he has no right to appropriate any of the assets of the estate for the purpose of compensating himself unless such compensation has been allowed him by the court,19 it is quite a general practice, upon the settlement of annual or intermediate accounts of the representative, for the court to make a partial allowance for commissions.20 And where the administration of the estate must continue over a period of several years, it would in fact be an injustice to the representative to postpone the allowance to him. of any commissions until final accounting.21 A partial allowance of commissions is authorized by statute in some jurisdictions;22 and a testator in his will may direct that compensation be paid the executor at fixed intervals.23 § 1590. Compensation Fixed by Will or by Agreement. The testator in his will may fix the amount of compensation to be allowed the executor, even at a figure less & M. (20 Miss.) 230; Matter of Furniss, 86 App. Div. (N. Y.) 96, 83 N. Y. Supp. 530. 19 Kenan v. Graham, 135 Ala. 585, 33 So. 699; Wheelwright v. Rhodes, 28 Hun (N. Y.) 57; Meeker V. Crawford, 5 Redf. (N. Y.) 450; In re Gerow's Estate (In re Felter), 23 N. Y. Supp. 847; Hodges v. Armstrong, 14 N. C. 253. 20 Collins v. Tilton, 58 Ind. 374; Webb v. Peck, 131 Mich. 579, 92 N. W. 104; Powell v. Burrus, 35 Miss. 605; Spencer v. Spencer, 38 App. Div. (N. Y.) 403, 56 N. Y. 21 In re Ricker, 14 Mont. 153, 29 L. R. A. 622, 35 Pac. 960; In re Gelbach's Estate, 14 Pa. Dist. Rep. 51; Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 Atl. 101; Van Winkle v. Blackford, 54 W. Va. 621, 46 S. E. 589. 22 Cal. Code Civ. Pro., § 1616, as amended 1911. See, also, Estate of Jones, 166 Cal. 147, 135 Pac. 293; Estate of Piercy, 168 Cal. 750, 145 Pac. 88. 23 Matter of Ringot, 124 Cal. 45, 56 Pac. 781. than that which the statute would authorize the representative to receive. If, however, the executor accepts the trust, he is bound by the provisions of the will.24 And it is held that by agreement between the applicant for letters testamentary or of administration and the interested parties, the compensation which the representative shall receive may be fixed irrespective of what the statute might allow.25 This rule is questioned if the amount of compensation agreed upon exceeds the statutory allowance, since it would permit the representative to receive a greater portion of the estate than the law prescribes for the services he may render. Such an agreement is apparently without consideration and has been held void as against public policy.26 And in California it is prescribed by statute that any contract between the personal representative and any person interested in the estate, whereby the representative will receive, either directly or indirectly, any greater compensation than that fixed by statute, is null and void as against the policy of the law.27 And an assignment by an executor or administrator of compensation or commissions to be earned for the faithful performance of the duties of his office is against public 24 Matter of Ringot, 124 Cal. 45, 56 Pac. 781; Matter of Runyon, 125 Cal. 195, 57 Pac. 783; Succession of Fink, 13 La. Ann. 103; Little v. Little, 161 Mass. 188, 36 N. E. 795; Matter of Sprague, 46 Misc. Rep. (N. Y.) 216, 94 N. Y. Supp. 216; In re Hays' Estate, 183 Pa. St. 296, 38 Atl. 622; In re Betts' Estate, 198 Pa. St. 640, 48 Atl. 473; Kearney v. Nicholson (Tex. Civ. App.), 67 S. W. 361. III Com. on Wills-38 25 Littell v. Hackley, 126 Fed. 309, 61 C. C. A. 295; Jones v. Harbaugh, 93 Md. 269, 48 Atl. 827; Newell v. West, 149 Mass. 520, 21 N. E. 954; In re Koch's Estate, 148 Pa. St. 159, 23 Atl. 1057; Powell v. Foster's Estate, 71 Vt. 160, 44 Atl. 96. 26 Matter of Ross, 33 Misc. Rep. (N. Y.) 163, 68 N. Y. Supp. 373. 27 Firebaugh v. Burbank, 121 Cal. 186, 53 Pac. 560; Cal. Code Civ. Pro., § 1618. ༔ policy, and void. If the compensation be separated from the office and transferred to another, it would leave the duties of the office as an apparent charge to be borne by the representative and would not be conducive to activity or care in the discharge of the duties of the trust.28 It is difficult to reconcile the various authorities on principle. The personal representative may renounce his right to compensation and such renunciation is valid.29 There seems to be no reason why a friend of the family of the deceased might not be willing to administer the estate at a compensation less than that prescribed by statute, and why such an agreement between the parties to that effect should not be valid. There is, however, a distinction between waiving compensation and renounc ing the office, for if the testator in his will appoints an executor, it evidences a desire that the nominee shall act; and while the nominee may of his own motion renounce the office, yet an agreement with a third party to do so is without consideration and can not be enforced. Such an agreement is void as against public policy.30 And an agreement that, in the event the will is not probated and the executor does not act, such executor shall be paid the full amount of the commissions which he otherwise would have received, has been held void as against public policy, and further void since the statute allowing compensation requires the due performance of services.31 Likewise it has been held that where the party 28 In re King's Estate (Doty v. Bates), 110 Mich. 203, 68 N. W. 154; In re Worthington, 141 N. Y. 9, 23 L. R. A. 97, 35 N. E. 929. 29 See 1586. 30 Hargreaves v. Wood, 2 Sw. & Tr. 602; Ellicott v. Chamberlain, 38 N. J. Eq. 604, 48 Am. Rep. 327; 31 Oakeshott v. Smith, 104 App. first entitled to letters of administration of the estate of an intestate agrees with the party next entitled to serve without compensation if the latter does not apply for letters, such agreement is without consideration.82 §1591. Division of Commissions Among Successive Administrators. Where an estate is administered by successive personal representatives, the compensation should be apportioned among them according to the services rendered. There is, however, no basis upon which to make the apportionment until the closing of the estate, since the court can not determine until such time the proportion of services rendered by the different representatives. The claim of each to compensation must be considered with reference to the rights of all others. Even though the statute authorizes the probate court, prior to final settlement, after notice and hearing, to make an order allowing the personal representative such portion of his commissions as the court shall deem proper, this does not alter the rule that statutory commissions are to be paid but once, and are to be apportioned among all personal representatives who act.34 The rule is that no matter how many representatives may successively administer the affairs of an estate, the total compensation to be apportioned among them is only that which would have been allowed to one represen 32 Succession of Coste, 43 La. Ann. 144, 9 So. 62. 33 In re Levinson, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479; Estate of Piercy, 168 Cal. 750, 754, 145 Pac. 88; In re Owen's Estate (Johnson v. Armstrong), 32 Utah 469, 91 Pac. 283. As to the division of commissions among coexecutors, see §§ 1532, 1533. 34 Estate of Piercy, 168 Cal. 750, 754, 145 Pac. 88. |