Executor's and admi SEC. 1618. (221.) When no compensation is provided nistrator's by the will, or the executor renounces all claim thereto, he commis Sinne Page 192. 1618. When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commissions upon the amount of the whole estate accounted for by him, as follows: For the first thousand dollars, at the rate of seven per cent.; for all above that sum, and not exceeding ten thousand dollars, at the rate of five per cent.; for all above that sum at the rate of four per cent.; and the same commission must be allowed administrators. In all cases, such further allowance may be made as the Probate Judge may deem just and reasonable, for any extraordinary service. The total amount of such allowance must not exceed the amount of commissions allowed by this section; and that public administrators shall receive the same compensation and allowances as are allowed in this title to other administrators. (Approved 24th March, 1874. In effect May 23th, 1874.) An act concerning service of summons upon absent defendants by publication, approved March 15th, 1872, is repealed. (In effect March 20th, 1874.) The Probate Court should not allow an administrator fees or commissions for property which does not come into his hands, but which is in the possession of other parties who claim title to it, adversely to the estate, even though it is appraised and included in the inventory. Estate of Simmons, 43 Cal. 543. As affording a basis for the allowance of administrators' commissions, the value of the estate, which has been taken into possession, and having been in possession, has been accounted for, is alone to be regarded. Estate of Simmons, 43 Cal. 543. missions thereon. Wells, Fargo & Co. v. Robinson, 13 Cal. 133. An executor or administrator is entitled to the commission allowed by law, not merely upon that portion of the estate which has been appraised, but upon the whole estate administered, the statute allowing commissions on the amount of the "appraised value of the estate, intended to embrace the whole estate administered; but the allowance to the executor or administrator of his commissions can only be made upon final settlement, and are to be a credit to him as of that date. Emanuel v. Noreum, 7 How. Miss. 150. An administrator must exhibit vouchers on settlement to establish his conduct and rights in regard to all alleged liabilities of the estate, except as to the ordinary commissions which the law allows him. In order to do this, if he seeks greater compensation than the commissions, or has to incur expenses in managing the property, he should present his account therefor, and have the same allowed by the chief justice as a liability against the estate, same as any other claim; and when so presented and allowed, it can only be attached by creditors or heirs in the same manner as other claims. Davenport v. Lawrence, 19 Texas, 317. ARTICLE II. ACCOUNTING AND SETTLEMENTS BY EXECUTORS AND ADMINIS TRATORS. SECTION 1622. To render an exhibit of receipts and disbursements, and claims allowed. 1623. Citation to account at third term. 1624. Petition for citation to render final or other account. 1625. Citation to account on application. 1626. Objections to account, who may file. 1627. Attachment for not obeying citation. 1628. To render accounts at expiration of term. 1629. Executor to account after his authority revoked. 1630. Revoking authority of executor, when. 1631. To produce and file vouchers, which remain in court. 1632. Vouchers for items less than twenty dollars, when excepted. 1634. Final settlement, partition and distribution may be made at 1635. Interested party may file exceptions to account. 1636. All matters may be contested by the heirs. Hearing may be 1637. Settlement of accounts to be conclusive, when and when not. an exhibit and disbursements SEC. 1622. (3 222.) At the third term of the court after To render his appointment, and thereafter at any time when required of receipts by the court, either its own motion or upon upon the appli- and claims cation of any person interested in the estate, the executor allowed. or administrator must render, for the information of the court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presented against the estate and the names of the claimants, and all other matters necessary to show the condition of its affairs. Statutes of 1851, p. 477, § 222. See Garwood v. Garwood, 29 Cal. 514; and Tompkins v. Weeks, 26 Cal 50, cited under section 1626, post. See Magraw v. McGlynn, 26 Cal. 420, cited under section 1624, post. See, also, Bush v. Lindsey, July Term, 1872 (Cal. Sup. Ct.), cited under section 1353, ante. Account, what to contain.-The account of proceedings required of an executor or administrator must be such an account as, when rendered, may be finally settled. In re Jones, 1 Redf. Sur. Rep. 263. The account must state, as part of the executor's proceedings, when the inventory was filed, when the advertisements for claims were published, what claims were allowed, what disputed and what rejected by the executor, and the time and manner in which they were rejected or disputed; what suits, if any, have been commenced on such disputed or rejected claims; which of them have been determined, and how; and which are pending, and the amount claimed; also, what claims have been presented and allowed since the expiration of the advertisement for claims. If no such claims have been rejected or disputed and no suits commenced, it must be so stated. All these things are essential in the account. It is material, also, that the character of the debts paid or allowed, or presented, should be stated-—that is, whether judgments docketed, etc., or debts of an inferior class. Ibid. The executor must first charge himself with the amount of the inventory; then with "the increase" of the inventory for any cause, whether direct or indirect, whether it be the increase of the flock, from interest, from selling at a higher price than the appraised value, or it be the increase from any property not embraced in the inventory. If there is no increase, that fact must be stated. He may credit himself for articles lost or perished, stating the cause of the loss; with the decrease, and with debts due the estate not collected, stating the facts justifying the credit given; with the funeral charges and expenses of administration; with moneys paid to creditors, naming them; and then with payments to legatees and next of kin. He must state the ages, condition in life of females, of legatees and next of kin; and if any are minors, the fact must be stated, and whether they have guardians; and if so, their names, residences, and how appointed. He must also produce vouchers supporting each payment, or, in case of claims under $20, in lieu of vouchers, his own oath of payment. Ibid. Judgment after accounting.-Where, on an accounting by the administrator, it appeared that there were assets of the estate sufficient to satisfy a judgment obtained against the administrator for legal services rendered in the administration, and to pay all other probable expenses of the administration, although not enough to pay more than a proportion of all the debts: Held, that a decree will be granted that the administrator pay out of the estate the amount of the judgment, with interest and costs. Cowles v. Thompson, 1 Redf. Sur. Rep. 490. In order to make the judgment a "debt" against the estate within the meaning of the statute so that it must abate with the other debts due from the estate in consequence of the deficiency of assets, it would be necessary that the services for which the judgment was obtained should have been rendered to the testator in his lifetime. Ibid. Estoppel of heir.-An heir at law, who, upon an accounting of the administrator, knowingly receives from the court in which such accounting is had a certain sum as his share of the proceeds of land sold by such administrator, is estopped in equity from denying the validity of the sale. In re Place, 1 Redf. Sur. Rep. 276. Consent of infant heirs not binding.-The consent of infant heirs cannot be made the ground of any order which may prejudice their rights. Thus, the written consent of the heirs (two of whom are infants), that an outstanding mortgage on a farm, devised by the testator to the widow, should be paid out of the personal estate, or that the widow should have the use of a certain sum of money during her pleasure, is invalid, and does not relieve the widow from her liability, as executrix, to account therefor. Scott v. Monell, 1 Redf. Sur. Rep. 431. SEC. 1623. (223.) If the executor or administrator Citation to account at of the aut the third term. End of Section 1623, Page 195. The Probate Court has no authority to cite the administrator of an administrator to settle the account of his intestate with the estate of which he was the administrator. Bush v. Lindsey, 44 Cal. 121. n for a to final r present nis petition to the probate judge, praying that the account. executor or administrator be required to appear and render such exhibit, setting forth the facts showing that it is necessary and proper that such an exhibit should be made. Statutes of 1851, p. 477, § 224. A proceeding commenced by the creditor of an estate in the probate court to compel an executor to render an account and to obtain a decree requiring the executor to pay the claim of the creditor, is in the nature of an action for the recovery of the money which the executor has in his hands and to which the creditor is entitled, and a decree in such proceeding against the executor is a judgment. Magraw v. McGlynn, 26 Cal. 420. A decree made by the probate court requiring an executor to pay over to creditors or legatees money in his hands, may compel the payment of the kind of money received by the executor. Ibid. The probate court may require an executor in his account to state the kind of money received by him from the proceeds of the estate. Ibid. A person not having a demand against the estate of a deceased person cannot have an order for a compulsory accounting against an executor, Estate of Cohn, 1 Tucker's Sur. Rep. 244. account on SEC. 1625. ( 225.) If the judge is satisfied, either from citation to the oath of the applicant or from any other testimony application. offered, that the facts alleged are true, and considers the showing of the applicant sufficient, he must direct a citation to be issued to the executor or administrator, requiring him to appear at some day to be named in the citation, which must be during a term of the court, and render an exhibit as prayed for. Statutes of 1851, p. 477, § 225. See sections 415, ante, and 1707, post, and cases cited there. Attachment for not SEC. 1626. (226.) When an exhibit is rendered by an executor or administrator, any person interested may appear and, by objections in writing, contest any account or statement therein contained. The court may examine the executor or administrator, and if he has been guilty of neglect, or has wasted, embezzled or mismanaged the estate, his letters must be revoked. Statutes of 1851, p. 477, § 226. Who may object.—The right to appear in a probate court and contest the account of an administrator is restricted to persons who are interested in the estate. Garwood v. Garwood, 29 Cal. 514. However remote or contingent the interests of a person may be, who asks to be allowed to contest an administrator's account, his right to contest should not be denied. Ibid. Creditor. A creditor of a deceased person is interested in his estate, and is entitled to appear in the probate court and file objections in writing to the account of an administrator and to contest the same. 26 Cal. 50. Tompkins v. Weeks, Where the contestants to an administrator's account stated in their exceptions that they were creditors of the deceased, and they were allowed to contest by the probate court, and the administrator appealed, but the transcript did not show that any proof was introduced on the subject of their being creditors, the presumption is that the probate court acted correctly. Ibid. If there is a reasonable doubt as to whether a person who applies to be allowed to contest the account of an administrator has any interest in the estate, that doubt should be resolved in favor of the applicant. Garwood v. Garwood, 29 Cal. 514. The probate court is not bound by the statement in a petition of an applicant to contest an administrator's account, that he has an interest in the estate, but may take testimony as to whether he has any interest. Ibid. An administrator must prosecute the settlement of an estate with all reasonable diligence. Walls v. Walker, 37 Cal. 424. Legatee.-A legatee, who has been represented by counsel at the allowance of accounts against the estate, will not be allowed, after a lapse of time, to come in and have the allowance set aside on a mere general averment of newly-discovered evidence. Williams v. Price, 11 Cal. 212. In such a case it is not sufficient to allege ignorance at the time of allowance, but the plaintiff must go further, and show, that he could not, with the use of due diligence, unmixed with any negligence on his part, have made himself acquainted with or ascertained the existence of the fact. Ibid. A general averment of such diligence will not do. The bill should state how and why the facts could not have been discovered at the time. Ibid. SEC. 1627. (227.) If any executor or administrator obeying ci- neglects or refuses to appear and render an exhibit, after having been duly cited, an attachment may be issued against him and such exhibit enforced, or his letters may be revoked, in the discretion of the court. tation. Statutes of 1851, p. 477, § 227. |