Bank of America v. Willardson

SHINN, P. J.

Appeal from an order of the superior court settling second account current, report of trustees and allowing trustees’ fees, made and filed on December 28, 1949.

The trustees, Frank E. Hess and Mae M. Oury, appellants, filed an amended petition for trustees’ fees for the period from March 1, 1947, to April 30, 1948, in which Hess sought total fees in the sum of $65,311.86 and Oury total fees in the sum of $31,714.26. The court allowed Hess $20,000 as fees for that period and Oury the sum of $8,400. The appellants also sought fees for the period from April 30, 1948, to November 30, 1948, Hess in the sum of $39,413.36 and Oury in the sum of $19,248.35. For this period the court allowed Hess $11,666.67 and Oury $4,900.

The decedent, Eldon Willardson, died March 4, 1945, leaving various properties, and cash in excess of $200,000 in joint tenancy with his widow. By the terms of his will, to which the widow had consented at the. time of execution, the decedent left the community property, other than that held in joint tenancy, in trust for the benefit of the widow and children who are the objectors and respondents here. The principal asset of the trust was a plumbing and heating contracting

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business which had been operated by the decedent prior to his death. As trustees to administer the trust and carry on the business he appointed the Bank of America, Frank E. Hess and Mae M. Oury. Both Mr. Hess and Mrs. Oury had been employed by the decedent for many years prior to his death. Appellants, as executors, operated the business of the estate until their final account was settled and the trust estate was distributed to them as trustees on April 30, 1947.

In January, 1948, the business was incorporated with the approval of the court, with a stated capital of $100,000. It appears that during the period from March 1, 1947, to April 30, 1948, the business earned net profits before income taxes in the sum of $279,423.89, and from April 30, 1948, to November 30, 1948, net profit in the sum of $225,452.22. For their services in operating the business, Hess sought confirmation of compensation he had drawn from the business, predicated upon a basic salary of $25,000 per year plus 20 per cent of the net income of the business, before income taxes, in excess of $100,000 per year, and Oury sought to have the court confirm her salary at $11,700 per year plus 10 per cent of the profits in excess of $100,000 per year. Under the terms of the will, the trustees were to receive fair and just compensation for their services. By the order under review, appellants were allowed nothing for the period from March 1, 1947, until April 30, 1947, and it was decreed that they return all moneys withdrawn by them in excess of the amounts allowed as previously set forth, together with legal interest on the excess from the dates of withdrawal to the date of repayment to the estate.