Phillips v. Hiestand

BARNARD, P. J.

This is an appeal, on an agreed statement, from an order fixing ordinary executor’s commission and attorneys’ fee in an estate.

Rufus A. Phillips died testate on October 1, 1949. During the course of administration, and in connection with a proceeding to determine heirship, the court made an order on May 28, 1951, in which, after finding that all of the property described in the inventory was the community property of the deceased and his widow, and that she had waived any right to take under the will and had elected to take her one-half of the community property, it was ordered that the executor “pay out of said estate” all debts and claims “and all expenses of administration,” and that there be distributed to the widow “one-half of all of said estate after the payment of the amounts specified.”

Subsequently, the executor filed his first account and a petition for partial distribution requesting, among other things, the fixing of statutory fees for himself and for his attorneys. Objections were filed and after a hearing an order was made on January 7, 1953, settling the account, decreeing partial distribution, and allowing statutory fees based on the value of the entire community property. This appeal is from the portion of that order fixing and allowing ordinary commissions and fees to the executor and his attorneys.

All of the property involved stood in the name of the husband, and was the post-1927 community property of the decedent and his surviving widow. The sole question presented is whether, under such circumstances and where the husband’s will attempted to exercise the right of testamentary disposition over all of said property, the statutory commissions and fees are to be computed “upon the estate of the decedent accounted for by the executors and subject by law to testamentary disposition of the decedent by will, alone, or are such statutory fees to be computed upon the estate of the decedent accounted for by the executor, including the one-half of the community property which belongs to the surviving widow.” The appellants contend that under sections 901 and 910 of the Probate Code an executor and his attorney are entitled to statutory fees upon the amount of “estate”

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accounted for; that under section 13303 of the Revenue and Taxation Code “estate” means the property or interest of the decedent; that the surviving wife’s half of the community property is not a part of the estate of her deceased husband, although it is “subject to the payment of one-half of the debts, charges and expenses of administration incurred in connection with the probate of the husband’s estate”; and that the term “estate,” as used in sections 901 and 910 of the Probate Code, means the estate of the decedent only, excluding the wife’s half of the community property.