CHAPTER LXIL

COMPENSATION OF PERSONAL REPRESENTATIVES.

§ 1585. As to personal representative being entitled to compensation.

§ 1586. Renunciation of right to compensation.

§ 1587. Effect of death, resignation or removal from office. § 1588. Manner of determining compensation of representatives. § 1589. At what period compensation may be allowed the rep

resentative.

§ 1590. Compensation fixed by will or by agreement.

§ 1591. Division of commissions among successive administra

tors.

§ 1592. Double commissions as executor and as trustee not favored.

§ 1593. Personal representative guilty of fraud may be denied compensation.

§ 1594. The same subject: Neglect of duty.

§ 1585. As to Personal Representative Being Entitled to Compensation.

The rule of the common law is that neither executors nor administrators are entitled to any compensation for the performance of the duties of the office, the position being honorary.1 But in the United States, in practically every jurisdiction, the common law rule no longer prevails, having generally been abrogated by statute; and the American rule is that executors and administrators

1 Robinson v. Pett, 3 P. Wms. 249; Brocksopp v. Barnes, 5 Madd. 90; Barney v. Saunders, 16 How. (U. S.) 535, 542, 14 L. Ed. 1047; Kenan v. Graham, 135 Ala. 585, 33 So. 699; Gaines v. Reutch, 64 Md. 517, 521, 2 Atl. 913; Warbass

v. Armstrong, 10 N. J. Eq. 263; Manning v. Manning's Exrs., 1 Johns. Ch. (N. Y.) 527; Matter of Sprague, 46 Misc. Rep. (N. Y.) 216, 94 N. Y. Supp. 84; Logan v. Logan, 1 McCord Eq. (S. C.) 1

are entitled to a reasonable remuneration for faithful service, at the same time being strictly liable for any loss which may occur by reason of wrong on their part.2 The right to compensation is not limited to general executors and administrators, but is allowed to those holding under a special or temporary appointment. This includes an administrator pendente lite. And although the appointment of an executor or administrator may be voidable and subsequently be set aside, if the representative apparently acted in good faith, qualified and accepted the trust under which he was appointed, and duly proceeded to administer the estate, he is entitled to credit for reasonable disbursements, costs, expenses, and for commissions earned in the proper discharge of his trust during the time of his appointment.

The purpose for which compensation is allowed an executor or administrator is to reward him not only for

2 Barney v. Saunders, 16 How. (U. S.) 535, 542, 14 L. Ed. 1047; Kenan v. Graham, 135 Ala. 585, 33 So. 699; Caldwell's Admr. v. Hampton, 21 Ky. L. Rep. 793, 53 S. W. 14; St. Paul Trust Co. v. Kittson, 62 Minn. 408, 65 N. W. 74; Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408; Warbass v. Armstrong, 10 N. J. Eq. 263; Matter of Guldenkirch, 35 Misc. Rep. (N. Y.) 123, 71 N. Y. Supp. 310; Matter of Sprague, 46 Misc. Rep. (N. Y.) 216, 94 N. Y. Supp. 84; Read v. Franklin (Tenn. Ch.), 60 S. W. 215; Dromgoole v. Smith, 78 Va. 665.

Compare: State v. Platt, 4 Harr. (Del.) 154.

3 Clark v. Knox, 70 Ala. 607, 45 Am. Rep. 93; Wilson v. Wilson, 3 Gill & J. (Md.) 20; Stone v. Haskins, 97 Ill. App. 3; In re Ford, 29 Mont. 283, 74 Pac. 735; In re Egan's Estate, 7 Misc. Rep. (N. Y.) 262, 27 N. Y. Supp. 1009; Bell v. Goss, 33 Tex. Civ. App. 158, 76 S. W. 315; Powell v. Foster's Estate, 71 Vt. 160, 44 Atl. 96.

4 Harrison v. Clark, 95 Md. 308, 52 Atl. 514; Hawkins v. Cunningham, 67 Mo. 415.

5 In re Owen's Estate (Johnson v. Armstrong), 32 Utah 469, 91 Pac. 283; Rice v. Tilton, 14 Wyo. 101, 82 Pac. 577.

his time and services, but also for the responsibility which he assumes, since he is bound to the faithful performance of the trust which he must administer and settle under the direction of the court. The right of an executor or administrator to compensation or commissions for the performance of his duties is an expense of administration and as such, in common with all other administrative expenses, must be paid before the beneficiaries under the will or the distributees of the estate are entitled to their shares."

§ 1586. Renunciation of Right to Compensation.

Although the personal representative has the right to compensation, this right may be waived or renounced. Such renunciation violates no rule of public policy, and a renunciation, having been once made, can not thereafter be withdrawn. If one voluntarily seeks the administration of an estate upon the promise that he will demand no compensation for his services, he will be held to the agreement and none will be allowed. And this rule

8

6 Powell v. Burrus, 35 Miss. 605; Hipkins v. Bernard, 2 Hen. & M. (Va.) 21.

7 Williamson v. Wilkins, 14 Ga. 416; Lutjen v. Lutjen, 63 N. J. Eq. 391, 51 Atl. 790; Matter of Nicholson, 1 Nev. 518; Halsey v. Van Amringe, 6 Paige (N. Y.) 12.

8 Matter of Davis, 65 Cal. 309, 4 Pac. 22; Lamar v. Lamar, 118 Ga. 684, 45 S. E. 498; In re Dimmick, 111 La. 655, 35 So. 801; Mott v. Fowler, 85 Md. 676, 37 Atl. 717; Morton V. Johnston, Mich. 561, 83 N. W. 369; Matter of Hopkins, 32 Hun (N. Y.) 618.

124

"The law does not forbid gratuitous services, even in fiduciary relations, and if acts purport to be done gratuitously no claim for payment can be founded upon them at a later date."-McIntire v. McIntire, 192 U. S. 116, 123, 48 L. Ed. 369, 24 Sup. Ct. 196.

A renunciation of the right to compensation may be withdrawn with the consent of the court where no interested parties object.-Estate of Carver, 123 Cal. 102, 55 Pac. 770.

9 Matter of Davis, 65 Cal. 309, 4 Pac. 22.

applies where the personal representative agrees in open court that he will demand no compensation,10 or where an order to that effect is entered with the consent of all parties.11

§ 1587. Effect of Death, Resignation or Removal from Office.

The fact that the personal representative dies or resigns before the termination of his trust, or that his letters are revoked, except in the instance where he has been guilty of such fraud and wrongdoing that he may be said not to have performed any service for the estate, does not prohibit an allowance of compensation for the services actually performed.12 But should the personal representative die before assuming control of any of the assets of the estate or before performing any of the duties of his office, his estate is not entitled to compensation.18

§ 1588. Manner of Determining Compensation of Representatives.

The amount of compensation which an executor or administrator shall receive for the performance of the duties of his office depends upon the statute of the particular jurisdiction. Such statutes vary, in some jurisdictions the representative being entitled to such compensation as the probate court may determine to be

10 Bate v. Bate, 11 Bush (74 Ky.) 639; Matter of Hopkins, 32 Hun (N. Y.) 618.

11 McIntire v. McIntire, 192 U. S. 116, 123, 48 L. Ed. 369, 24 Sup. Ct. 196.

12 Matter of Strong, 119 Cal. 663, 51 Pac. 1078; Frazier v. Cavanaugh, 4 Ky. L. Rep. 711; Suc

cession of Brown, 27 La. Ann. 328, 331; In re Handfield's Estate, 16 Mo. App. 332; Matter of Douglas, 60 App. Div. (N. Y.) 64, 69 N. Y. Supp. 687; Brown v. McGee's Estate, 117 Wis. 389, 94 N. W. 363.

13 McKnight's Exrs. v. Walsh, 23 N. J. Eq. 136; Hall v. Hall, 78 N. Y. 535.

reasonable under all the circumstances of the case, limited generally so that it shall not exceed a percentage of the value of the estate; in other jurisdictions the compensation is in the form of a commission on the value of the assets of the estate administered by the representative, often on a sliding scale, the percentage decreasing as the value of the estate increases. Such percentage commissions may be fixed as compensation only for attending to the routine matters of administration, and where special services are required the court may be authorized by the statute to allow additional compensation for such services, but the additional compensation which may be allowed is generally limited. In some states the commissions allowed are based upon moneys received and disbursed, in others receipts only are considered, while in still others disbursements only are taken into account. The statutes of the particular jurisdiction must be consulted in every case.

If the representative is entitled to commissions according to the value of all the assets of the estate which come into his hands or are accounted for by him, the inventory and appraisement may or may not afford a basis of calculation for the purpose of the allowance, and can not in any case amount to more than prima facie evidence of the value.1 If the administrator sells a portion of the estate, the amount received becomes evidence of its value for which he must account and upon which his commissions are to be estimated.15 Under such a statute the representative is entitled to commissions on the value of the

14 Estate of Simmons, 43 Cal. 543, 549; Estate of Fernandez, 119 Cal. 579, 584, 585, 51 Pac. 851;

Estate of Carver, 123 Cal. 102, 106, 55 Pac. 770.

15 Estate of Fernandez, 119 Cal. 579, 585, 51 Pac. 851.