Crowley v. Walker

220 N.W.2d 384, 88 S.D. 361, 1974 S.D. LEXIS 138

• Court: South Dakota Supreme Court
• Decided: July 25, 1974
• Docket: No. 11275
• Status: Published

Opinions

DOYLE, Justice.

George A. Biesmann died August 5, 1969, and on August 12, 1969, his widow, Katherine A. Biesmann, petitioned the district county court to admit to probate a purported will of the decedent. Hearing on the petition was set for September 2, 1969; however, certain other heirs initiated a contest to the admission of such will and the hearing was postponed. On September 2, 1969, the district county court appointed Katherine A. Biesmann and Bruce J. Walker as special coadministrators of the estate pending the outcome of the will contest. On December 2, 1969, the district county court admitted the will to probate and appointed the coexecutors named therein.¹ The decision of the district county court, admitting the will to probate, was appealed de novo to the circuit court and the decision of the district county court reversed.² Regular letters of administration were granted to Katherine A. Biesmann, as the surviving spouse of the decedent, on June 29, 1971, and she served as the sole administratrix of the estate until the appointment of her son, Arthur E. Crowley, due to her illness and subsequent death.

This appeal is from an order of the district county court allowing Harold J. and Bruce J. Walker $10,556 as compensation for services rendered to the estate by Bruce J. Walker as special coadministrator and coexecutor, and by Harold J. Walker as coexecutor of the estate (it was agreed that the Walkers would agree to a division of the fee between themselves). It appears that Harold J. Walker took little active part in the administration of the estate.

The pertinent part of Harold J. Walker’s testimony regarding his participation as a coexecutor of the estate is as follows:

“Q As I understand it, with the exception of appearing as a witness on two different occasions, and with the exception of the conference that we had in Hermon’s office, you didn’t do much of anything as executor of this estate, did you, Harold?

“A I didn’t do a whole lot; I thought that he had me as a coexecutor for the past things that I have done for him.

“Q Your name wasn’t on the bank account of the estate?

“A No.

“Q Of course you signed no checks or made any deposits?

“A No.

“Q You never had possession of any of the estate property, did you?

“A No.

“Q And, of course, not ever having had possession of it, you couldn’t have accounted for any of it?

“A No.

Upon this record we are of the opinion that the trial court’s findings that Harold J. Walker performed substantial services as a coexecutor of the estate are “clearly erroneous” within the purview of SDCL 15-6-52(a).

The duties of the special coadministrators, Katherine A. Biesmann and Bruce J. Walker, consisted of assuming control of the assets pending the outcome of the will contest and drafting checks amounting to less than $9,000 in payment of the usual estate claims.³ Since these duties involve little time or expertise and would have been handled by the regular administrator or executor, as the case may be, but for the delay in the regular appointment, we are of the opinion that no extra compensation should be allowed for such services performed by the special coadministrators.

The reasoning of the court in allowing compensation is set forth in Conclusion of Law No. 5, which states:

“The Court concludes that $10,556 compensation to two out of three executors is in line and consistent with the statutory commission schedule when applied to the personal property in this estate where a full two-thirds commission on the $688,342 of personal property would have been $11,529.03.”

This conclusion in our opinion presupposes equal, or near equal, work by the representatives in the administration of this estate, which assumption is not supported by the record. Furthermore, the trial court made extensive findings as to an agreement between the Walkers and Mrs. Biesmann as to the Walkers’ compensation for acting as representatives of the estate. However, in the absence of an express provision in the decedent’s will, we are of the view the representatives’ commission in this case must be established in accordance with SDCL 30-25-6 and 30-25-7.⁴ Consequently, the court’s findings as to an agreement between the Walkers and Mrs. Biesmann as to compensation is immaterial.

The method of compensating executors and administrators is well stated in Banc. Prob. Prac. 2d § 416:

“In almost all of the western states the compensation of an administrator, and of an executor except where there is a provision for his compensation in the will and he fails to renounce such provision, for ordinary services is fixed by statute according to a sliding scale of decreasing percentages as the value of the estate exceeds certain amounts. * * * Under most of the statutes the amount of the representative’s commissions for ordinary services is merely a matter of computation. * * * In some states, moreover, it is expressly provided that contracts between an executor or administrator and an heir, devisee or legatee, for a higher compensation than that allowed by law are void.”

See In re Balbach’s Estate, 1929, 56 S.D. 196, 227 N.W. 886, 66 A.L.R. 508, holding:

“the Legislature intended that the compensation of an executor * * * should be limited to the statutory percentage commission * *

When there is more than one representative there is only one commission allowed which is apportioned among them. Banc. Prob. Prac.2d § 430 states:

“One who renders no services whatever * * * is not entitled to share in the commissions * *

See also 34 C.J.S. Executors and Administrators § 872, pp. 1034, 1035.

“The general rule is that where an estate is administered by successive personal representatives, the compensation should be apportioned among them according to the services rendered. Where, for example, an executrix dies in office, fees should be apportioned between her successor and her estate in proportion to the services respectively rendered.” Banc. Prob. Prac. 2d § 429.

See also 31 Am.Jur.2d, Executors and Administrators, § 496.

To summarize, we hold that the total commissions to be allowed the representatives of the estate in this matter for the completed probate shall be determined by the formula established in SDCL 30-25-7; that such commission shall be prorated among the various representatives in accordance with the services rendered by each such representative, that is, among Bruce J. Walker, Harold J. Walker (who is entitled to nominal fees only), Mrs. Biesmann’s Estate, and Arthur E. Crowley.

Reversed and remanded with directions to complete the probate of the estate; determine the commission of the representatives of the estate under the statute and apportion such commission among the representatives in a manner consistent with this opinion.

WINANS and DUNN, JJ., concur. WOLLMAN, J., concurs specially. BIEGELMEIER, C. J., dissents.

1 . The will named Katherine A. Biesmann, Harold J. Walker and Bruce J. Walker as coexecutors of the estate.

2 . The circuit court’s memorandum decision reversing the district county-court and setting aside the will was entered February 25, 1971; however, judgment thereon was not filed until June 14, 1971. During the intervening period Katherine A. Biesmann settled with the contestants.

3 . Harold J. and Bruce J. Walker are longtime bankers in the community. The record reflects that Bruce handled collection items for the estate and made deposits to the estate account. Prior to the death of George A. Biesmann, Bruce J. Walker provided much the same services as an officer of the bank without compensation.

4 . The South Dakota statutes are:

SDCL 30-25-6. “The executor or administrator shall be allowed all necessary expenses in the care, management, and settlement of the estate and for his services such fees as are provided in this chapter, but when the decedent, by his will, makes some other provision for the compensation of his executor, that shall be a full compensation for his services unless by a written instrument filed in the county court, he renounces all claim for compensation provided by the will.”

SDCL 30-25-7. “When no compensation is provided by will or the executor renounces all claim thereto, he must be allowed commissions upon the amount of the personal property accounted for by him, excluding personal property not ranked as assets, as follows:

(1) On the first one thousand dollars at the rate of five per cent;

(2) On all sums in excess of one thousand dollars and not exceeding five thousand dollars at the rate of four per cent;

(3) On all sums in excess of five thousand dollars at the rate of two and one-half per cent.

Upon all real property accounted for by him, the executor shall receive a just and reasonable compensation for the services performed to be fixed by the court.”