Gottfried v. Geltman

California Court of Appeal Jul 16, 1957 No. Civ. 22282Published

Before: Moore

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Holding. The court held that attorney fees for an executor must be calculated based on the statutory rates in effect at the time of the settlement of the account rather than the rates in effect at the time of the decedent's death.

Issues

Whether attorney fees for an executor should be calculated based on the statute in effect at the time of the decedent's death or the time of the settlement of the account.
Whether a summary reversal is the appropriate procedure when the lower court applied an incorrect statutory basis for fee calculation.

Disposition. reversed

Quotations verified verbatim against the opinion

“The court’s order was predicated upon the statute in effect at the time of the death of decedent whereas it should have been based upon the statute in effect at the time of the settlement of the account”

“Pees due executors and administrators are to be computed on “the amount of estate” (Prob. Code, § 901), not upon the net assets after payment of legacies, gifts and expenses.”

MOORE, P. J.

This proceeding is based upon the motion of the attorney of the executor for a summary reversal of the order settling the first and final account and providing an allowance of commissions and fees for such attorney.

On behalf of the executor, on November 16, 1955, movant, Abraham Gottfried, filed the first and final account and report, petition for distribution, and for allowance of commissions

[561]

and fees due movant as attorney for such executor. The final account and report set forth a list of the claims against the estate, payment thereof and other disbursements approved; also a summary of the assets of the estate, aggregating $79,756.66. In the report, movant alleged a computation of statutory commissions and fees due him as follows:

$ 1,000.00 at 7%.......................$ 70.00

9.000. 00 at 4%....................... 360.00

40.000. 00 at 3%....................... 1,200.00

29,756.66 at 2%....................... 595.00

$79,756.66 $2,225.00

The court did not accept such calculation but concluded as follows: “Said Myron V. Geltman has in his possession belonging to said estate, after deducting credits to which he is entitled, a balance of $64,452.87, of which $1,290.87 is in cash and the remainder consists of property hereinafter described at the appraised value; that the said account be allowed and settled accordingly; that out of the residue in his hands, said executor pay $1,635.06 as ordinary fees, and $2,700.00 as extraordinary fees to Abraham Gottfried, Esq., attorney for the executor.”

The court’s order was predicated upon the statute in effect at the time of the death of decedent whereas it should have been based upon the statute in effect at the time of the settlement of the account and of the order allowing compensation. When decedent departed this life in December, Í954, the provisions of Probate Code, section 901, were those used by the court in computing appellant’s fees. However, in September, 1955, section 901 was amended so that the fees and commissions due appellant computed according to the statute as amended amounted to $2,225.

Gottfried v. Geltman

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MOORE, P. J.

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