Estate of Boggs

WOOD, J.

The appellants, creditors of the estate of Paul N. Boggs, deceased, have appealed from the orders of the court sitting in probate for the payment of fees to the executrix, to her attorney, and to an accountant; also from the order of the court settling the account current of the executrix.

At the time of his death decedent owned certain real estate and certain shares of corporate stock, which were appraised as of the total value of $443,745. The Farmers and Merchants National Bank of Los Angeles held a trust deed covering the real estate and also held all of the corporate stock to secure an indebtedness to the bank of more than $500,000. Before the executrix qualified the bank had sold some of the stock in partial satisfaction of the obligation and since her qualification, has continued to sell stock from time to time. Under the pledge agreement the bank retains all of the income from the stock and under the terms of the deed of trust collects all of the rents from the realty. The only property of the estate actually held by the executrix is the sum of $3,000. The executrix filed an account current showing as assets of the estate for which she considered herself chargeable all of the pledged stock and encumbered realty as well as the rents, issues and profits from such property which had been collected by the bank and applied in reduction of the debt. In her account she credited herself with all amounts received by the bank as dividends and rents and from sales of stock as having been paid by the estate to the bank.

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Six months having elapsed from issuance of letters testamentary the executrix applied to the court for an allowance upon her commissions under the provisions of section 904 of the Probate Code. The attorney for the executrix also filed an application for an allowance of fees under section 911 of the Probate ■ Code. The court made an order allowing the sum of $1,000 to the executrix on account of fees and a similar amount to her attorney. The court also allowed the sum of $250 to be paid to John I. Bolen, an accountant and tax counselor, for services rendered in preparation of the account and in the preparation of tax returns.

Appellants contend that the court erred in allowing the sum of $1,000 each to the executrix and the attorney, arguing that the amounts are excessive in view of the value of the estate. It is apparent that if the entire estate is of the value of $3,000, or thereabouts, the allowance must be considered as excessive. Respondent argues, however, that, the value of the estate should be considered as the amount of the appraised value of all of the property including that held by the bank in pledge. It is provided in section 901 of the Probate Code: “The executor . . . shall receive commissions upon the amount of estate accounted for by him . . . ” In section 920 of the Probate Code it is provided: “Every executor and administrator is chargeable in his account with all of the estate of the decedent, which comes into his possession, and with all the income, issue and profits of the estate ...” In section 600 of the Probate Code it is provided that the executor must file with the clerk an inventory of the estate “which has come to his possession or knowledge ’ ’. It will be noted that the executrix is required to set forth all of the estate which shall have come to her knowledge but she is chargeable in her account with only that part of the estate which may have come into her possession. In demanding fees for her services she is entitled to payment based upon the value of the estate which is “accounted for”. The question here involved was presented to the Supreme Court in