Kohn v. Superior Court

[101]

THE COURT.

A proceeding in

certiorari.

On August 8, 1934, special letters of administration in the matter of the

Estate of George A. Kohn, Deceased,

were issued by respondent. Neither letters testamentary nor general letters of administration were yet issued. On December 2, 1936, over objection respondent made its order allowing a sum on account of the commissions of the special administrators. Petitioner, who is beneficially interested in the estate, alleges that in so doing respondent acted without and in excess of its jurisdiction.

Section 467 of the Probate Code reads as follows: “The special administrator must render a verified account of his proceedings in like manner as other administrators are required to do. His commissions and the fees of his attorney shall be fixed by the court; but the total commissions paid and extra allowances made to the special administrator and executor, or to the special administrator and general administrator of an estate, must not, together, exceed the sums provided for in this code as commissions and extra allowances for the services of executors or administrators; and the total fees paid to the attorneys both of the special administrator and executor, or of the special administrator and general administrator, must not, together, exceed the sums provided in this code as compensation for the ordinary and extraordinary services of attorneys for executors or administrators.” And section 904 of the same code provides: “Any executor or administrator, at any time after six months from the issuance of letters testamentary or of administration, and upon such notice to the persons interested in the estate as the court or a judge thereof shall require, may apply to the court for an allowance upon his commissions; and on the hearing the court shall make an order allowing him such portion of his commissions, for services rendered up to that time, as the court shall deem proper, and the portion so allowed may be thereupon charged against the estate.”

Section 467 is based on the former section 1417 of the Code of Civil Procedure, and section 904 upon former section 1616 of the Code of Civil Procedure.