tative had he alone been appointed and performed all the services. But if one representative wrongfully retains full commissions as if he had completely administered the duties of the office, this will not deprive his successor of receiving his proper proportion of the commissions, since the right of each to compensation is separate and distinct from the other.36

§ 1592. Double Commissions as Executor and as Trustee Not Favored.

Double commissions are not favored, and where the executor acts also as a trustee under the will, he is entitled to commissions in both capacities only where the will contemplates that his stewardship in each shall be separate and distinct both as to the duties and as to time.37 If a trust duty is imposed upon the executor which is made simply a function of his office, he is not entitled to double commissions.38 Where the testator

35 Ord v. Little, 3 Cal. 287; Estate of Piercy, 168 Cal. 750, 145 Pac. 88; Succession of Kernan, 105 La. 592, 30 So. 239; Spratt v. Bald. win, 33 Miss. 581; Matter of McCormick, 46 Misc. Rep. (N. Y.) 386, 94 N. Y. Supp. 1071; Scroggs v. Stevenson, 100 N. C. 351, 6 S. E. 111.

36 Succession of Kernan, 105 La. 592, 30 So. 239.

37 Baker's Exrs. v. Johnston, 39 N. J. Eq. 493; Matter of Union Trust Co., 70 App. Div. (N. Y.) 5, 75 N. Y. Supp. 68; McAlpine v. Potter (Matter of McAlpine), 126 N. Y. 285, 27 N. E. 475; In re Scull's Estate, 17 Pa. Co. Ct. Rep. 198.

As to right of personal representative to fees for services rendered to the estate by himself as attorney, see § 1563.

As to the division of compensa tion among coexecutors or coadministrators, see §§ 1532, 1533.

Where there are more than one personal representative, the fact that the most of the business of the estate is conducted by one only does not characterize his services as special or extraordinary so as to entitle him to a right for additional compensation for special services.-Noble v. Jackson, 132 Ala. 230, 31 So. 450.

38 Lamar v. Harris, 121 Ga. 285,

makes the executor also a trustee, in the absence of a direction in the will, the duties of the executor as trustee would not begin until his duties as executor had terminated, and until his duties as trustee commence he is not entitled to compensation as trustee.3

39

Where trust powers are given to executors to enable them to conveniently and safely place the estate upon an income-bearing basis and so administer it that the principal and income may be distributed at a future time according to the testator's directions, and the executors do not settle and close their accounts and duties as executors and open and begin them as trustees, upon the settlement of their accounts at the expiration of their stewardship, they are not entitled to commissions both as executors and as trustees.40 And where an administrator acts in his own interest as an heir, as a trustee for other heirs, and as an agent for still others, whatever claim he may have for compensation and expenses incurred against the other heirs is not a matter for adjudication and allowance in the probate court, and he is entitled only to compensation as administrator."1

§ 1593. Personal Representative Guilty of Fraud May Be Denied Compensation.

One rule which is universally recognized is that the purpose of allowing compensation to the personal representative is to reward him for the faithful performance of his duties in administering the assets of the estate, but

48 S. E. 932; Matter of Slocum, 169 N. Y. 153, 62 N. E. 130.

39 Bemmerly v. Woodard, 136 Cal. 326, 331, 68 Pac. 1017.

40 Everson v. Pitney, 40 N. J. Eq. 539, 543, 5 Atl. 95; McAlpine

v. Potter (Matter of McAlpine), 126 N. Y. 285, 27 N. E. 475; In re Slocum, 169 N. Y. 153, 62 N. E. 130.

41 In re Morrison's Estate, 196 Pa. St. 80, 46 Atl. 257.

that if he has been guilty of fraud, mismanagement and gross neglect, or has treated the property as his own, he may be said not to have performed any duties as executor or administrator, and he is entitled to no commissions, even though he may be compelled to make good any loss which the estate has suffered by reason of his actions. Between the two extremes there are many shades of lack of performance of duty which may or may not deprive the representative of his right to compensation; and while the principles of law may be recognized, the courts vary as to their application. It was said by the Supreme Court of the United States, after announcing the principles of law applicable to the case, "But while the court agree in these principles, they are equally divided in opinion as to the application of them to the present

case. ''42

The allowance or the denial of compensation to a personal representative, although governed by recognized rules, must to a large extent be determined according to the facts of each particular case, with the result that the matter rests largely within the discretion of the court; and the order of the probate court will not be disturbed on appeal unless there has been an abuse of discretion. Fraud, neglect, or misconduct of the personal representative is a ground for denying him his commissions, either in whole or in part, as the probate court in its discretion may determine.13 But although one executor is guilty of

42 Barney v. Saunders, 16 How. (U. S.) 535, 542, 14 L. Ed. 1047.

43 Jacobus v. Munn, 38 N. J. Eq. 622; Matter of Morris, 65 N. J. Eq. 699, 56 Atl. 161.

Personal representative will not be allowed counsel fees regarding

litigation arising from his own wrong, see §§ 1566, 1567.

As to removal of personal representative from office and the causes for such removal, see §§ 1534-1553.

devastavit and his coexecutor is liable therefor, the latter will not be denied his commissions if he was not a party to the misconduct of the former. 44

Fraud or misappropriation of the assets of the estate is always recognized as sufficient cause for denying compensation to the personal representative. If the personal representative uses the funds of the estate for his own personal benefit or mingles them with his individual funds, he should be denied compensation by the probate court.15 Fraud or gross neglect and unfaithfulness to the duties of the office on the part of the personal representative should forfeit all claims on his part to compensation. If the representative has been guilty of fraud or has misappropriated or concealed the assets of the estate, commissions should be denied him;47 and the rule is the same if the representative fraudulently conceals

44 Estate of Osborn, 87 Cal. 1, 4, 11 L. R. A. 264, 25 Pac. 157; Estate of Carver, 123 Cal. 102, 104, 55 Pac. 770; Matter of Dougherty, 43 Misc. Rep. (N. Y.) 468, 89 N. Y. Supp. 549.

45 Frey v. Demarest, 17 N. J. Eq. 71; Blauvelt v. Ackerman, 23 N. J. Eq. 495; Matter of Matthewson, 8 App. Div. (N. Y.) 8, 40 N. Y. Supp. 140; Matter of Adams, 51 App. Div. (N. Y.) 619, 64 N. Y. Supp. 591; Matter of Wotton, 59 App. Div. (N. Y.) 584, 69 N. Y. Supp. 753; In re Williamson's Estate, 18 Week. N. Cas. (Pa.) 138; Thomas v. Hawpe, 35 Tex. Civ. App. 311, 80 S. W. 129; Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 Atl. 101.

46 Hall v. Wilson's Heirs, 14 Ala. 295, 302, 303; In re Thompson's Estate, 101 Cal. 349, 355, 35 Pac. 991, 36 Pac. 98, 508; Glassell v. Glassell, 147 Cal. 510, 513, 82 Pac. 42; Davis v. Swedish American Nat. Bank, 78 Minn. 408, 419, 79 Am. St. Rep. 400, 80 N. W. 953, 81 N. W. 210; Blauvelt v. Ackerman, 23 N. J. Eq. 495; Matter of Harnett, 15 N. Y. St. Rep. 725; Cook v. Lowry, 95 N. Y. 103, 114; Stevens v. Melcher, 152 N. Y. 551, 46 N. E. 965; McCloskey v. Gleason, 56 Vt. 264, 283, 48 Am. Rep. 770; Davis v. Eastman, 68 Vt. 225, 35 Atl. 73.

47 Davis v. Eastman, 68 Vt. 225, 35 Atl. 73.

assets of the estate and wrongfully procures the sale of real property for the purpose of paying debts.18

§ 1594. The Same Subject: Neglect of Duty.

The authorities do not agree as to an absolute rule where the representative is guilty merely of neglect. Some authorities hold that wilful neglect on the part of the personal representative to perform the duties of the trust and attend to the affairs of the estate is a sufficient cause for denying him compensation;19 while others hold that compensation should be allowed, even though the representative be guilty of neglect, if no loss has resulted to the estate, but that the compensation should be denied if the neglect has resulted in loss.50 There may be cases where the representative has acted in good faith, although in fact neglectful of his duties, but such neglect may not warrant the court in denying him commissions.51 He may have acted in good faith but have made an honest mistake which has resulted in loss to the estate, and such mistake alone may not be cause to deny him compensation.52 He may have neglected the investment of idle funds of the

48 Ambleton v. Dyer, 53 Ark. 224, 13 S. W. 926.

49 Barney v. Saunders, 16 How. (U. S.) 535, 542, 14 L. Ed. 1047; Walker v. Beal, 9 Wall. (U. S.) 743, 757, 19 L. Ed. 814; Hall v. Wilson's Heirs, 14 Ala. 295; Matter of Matthewson, 8 App. Div. (N. Y.) 8, 40 N. Y. Supp. 140.

50 Alexander v. Bates, 127 Ala. 328, 28 So. 415; Matter of Morris' Estate, 65 N. J. Eq. 699, 56 Atl. 161; Matter of Brintnall, 40 Misc. Rep. (N. Y.) 67, 81 N. Y. Supp.

250; Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 Atl. 101.

As to the personal liability of the personal representative to compensate the heirs for loss occasioned by his neglect of duty, see §§ 1509-1515.

51 Appeal of Fross, 105 Pa. St. 258.

52 Matter of Baker, 72 App. Div. (N. Y.) 211, 76 N. Y. Supp. 61; In re Merkel's Estate, 131 Pa. St. 584, 18 Atl. 931; In re Hoffer's Estate, 156 Pa. St. 473, 27 Atl. 11.