Estate of Murphy

1 Coffey 12

• Court: Superior Court of California, County of San Francisco
• Decided: October 23, 1886
• Docket: No. 4,313
• Status: Published

Opinion

COFFEY, J.

On the 26th of March, 1886, Adam Grant, desiring to retire from his office as executor, filed his report and account; on the 10th of April, 1886, Anna L. Murphy, widow, and Helen and Fannie Murphy, daughters of decedent, filed exceptions to said account, and on the 17th of April, 1886, they filed a supplemental and additional objection. Isabella Murphy, another daughter of decedent, on the said last-mentioned dates, filed in her own behalf separate exceptions and supplemental exceptions to said account. The matter came up Tor hearing on the 17th of April, 1886, and occupied, from time to time, until August 28, 1886, when, after argument, it was submitted for the consideration and decision of the court. The testimony is comprised in a volume of six hundred and six typewritten pages, which the court has considered.

I cannot undertake to do more than to state the results of my reflection upon the evidence and arguments.

The objections and exceptions to the account as a whole are overruled and denied.

Whatever may have been the inducements which caused the contestants to execute the ten years lease, this court cannot here treat that instrument as invalid.

While the executor admits that at one time he entertained and expressed the intention to renounce his commissions or to make no claim therefor, he insists that he changed his mind, and now demands as his due the statutory allowance.

I do not perceive any way in which, under the circumstances of this case, the court can deny to the executor what the statute allows him. I find no case sustaining counsel’s view—the Estate of Davis, 65 Cal. 309, 4 Pac. 22, 3 W. C. R 61, was a case where the renunciation was made in consideration of the appointment—a promise made before the appointment that the appointee would not charge. Schouler says: “If one has been appointed on a distinct understanding with those interested to serve as executor or administrator without recompense .... he must abide by his engagement”: Schouler on Executors, sec. 545.

That is not this case. Adam Grant made no stipulation or agreement prior to his appointment, nor has he renounced in writing (section 1616, Code Civ. Proc.) his claim to compensation; but he insists that, notwithstanding his declared intention at one time, he has now a strictly legal right to commissions. The statute says (section 1618, Code Civ. Proc.) he must be allowed commissions upon the amount of the estate accounted for by him.

The court finds that the executor has not waived or renounced his commissions, and that he is entitled to them— the amount to be ascertained hereafter.

The executor is chargeable with interest on the balance of the money withdrawn from the capital account of Murphy, Grant & Co., which has been lying idle on deposit in the bank of Donohoe, Kelly & Co. This balance is the difference between the amount necessary to discharge the Donohoe debt and the amount drawn out of the capital account.

It is clear to the court that all expenditures in fitting up the store for the occupancy of O’Brien & Co. in excess of twelve thousand dollars, and all outlay in and about the “parlor” beyond the sum of four thousand dollars, should be disallowed.

The lowering of the skylight was not indispensable to the enjoyment of the premises by the tenants of the .first floor, as sufficient light might have been had by placing a glass roof over that part of the store now covered by the skylight, so the architect, Percy, testifies. I do not think, from my own observation when in company with the counsel for the respective parties, that the lowering of the skylight was judicious. It certainly has not added to the rental value of the second floor. It should be disallowed.

With reference to the mirrors and stools, while ordinarily they might not be regarded as “fixtures,” I think that under the evidence in this ease they must be so considered. For the purposes of the business to which the premises are devoted, the stools are about as necessary as the counters, and the testimony is that the space occupied by the mirrors had to be filled, and the cost would have been no less if paneling had been inserted.

All items not mentioned in this memorandum are allowed.

An Executor or Administrator, like any other trustee, may waive or renounce his right to compensation for performing the duties of his trust: Noble v. Whitten, 38 Wash. 262, 80 Pac. 451; Estate of Field, 33 Wash. 63, 73 Pac. 768; and a promise by him to the person primarily entitled to the administration of the estate, before his appointment, that he will not charge for his services, is equivalent to a renunciation of his claim: Estate of Davis, 65 Cal. 309, 4 Pac. 22. A waiver of commissions in a petition for letters of administration does not deprive the administratrix of the right to commissions, where the waiver was without objection, and by leave of court withdrawn before she was appointed: Estate of Carver, 123 Cal. 102, 55 Pac. 770.

Executors, having Improperly Withdrawn Money from the estate to pay a bookkeeper, were held liable for interest thereon at the legal rate until it was repaid to the estate, in Estate of Scott, 1 Cal. App. 740, 83 Pac. 85. For a further consideration of the liability of executors and administrators for interest on funds belonging to the estate, see Boss on Probate Law and Practice, 702-704.