Estate of Neff

YORK, P. J.

This is an appeal from a judgment or order allowing the payment of $5,000 each to O. T. Cailor, as executor, and Syril S. Tipton, as attorney for said executor, for

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extraordinary services rendered by them in the administration of the estate of J. B. Neff, deceased, written objections having been interposed by appellants, legatees under the will of said decedent.

Respondents ’ petition for fees for extraordinary services alleges that said estate was appraised at $327,576, all of which consisted of bonds except $9,100; that under the terms of the will it was necessary to sell said bonds and reduce them to cash for the purpose of distribution; that in connection with such sale respondents prepared and presented a petition to sell a portion of the securities over a recognized exchange, and as to the balance thereof, consisting of unlisted securities it was necessary for respondents to prepare and present a petition to sell them at a minimum price, which they did after many conferences with various brokerage houses concerning the price of the various bonds. Also, it appears from the record, that respondent attorney on behalf of respondent executor petitioned the court for instruction and direction for the reason that the inheritance tax department would not make its report fixing the tax until there was a determination by the court as to the construction of paragraph 3 of the will bequeathing to the legatee Lelia B. Bucher $7,000 in certificates of the Home Builders Association of Pomona, which were not a part of said estate, having been disposed of by testator prior to his death.

During the pendency of the appeal, this court, upon respondents’ motion for diminution of the record, ordered that the affidavit of the trial judge be made a part of the record on appeal. This affidavit is now before us and avers as follows:

“Florence M. Bischoff, being first duly sworn, deposes and says:

‘‘ That upon stipulation of the attorneys in the above cause, she presided as Judge pro tern, in the hearing held on May 25, 1942, concerning the Petition for Fees for Extraordinary Services on behalf of the executor and his attorney, and the objections thereto.