Rutherford v. Ott

LENNON, P. J.

This ease arises out of a trust created by Lena Ott in her lifetime. After her death the property of the trust was sold and the trust fully administered. The trustee then brought this suit against the beneficiaries of the trust to settle his accounts and to obtain a judgment directing distribution of the trust assets.

A judgment resulted and two appeals were taken, which are here for determination.

The trustee has appealed from the disallowance of three items in his account:

(1) Two hundred and thirty-óne dollars and twenty-five cents paid by him as brokers’ commissions upon the sale of real property.

(2) One hundred and fifty dollars paid by him for the care of the cemetery plot of the author of the trust at St. Helena as provided in the trust.

(3) Two hundred and fifty dollars disallowed in respect of the trustee’s claim for compensation.

The other appeal is by beneficiaries under the trust who are also heirs at law of the decedent. The trust contained provisions for the payment of certain sums, hereafter to be mentioned, which these appellants claimed to be invalid. The court below held otherwise; hence the appeal.

We shall first take up the appeal of the trustee and deal with the items disallowed below, and then consider the merits of the other appeal.

(1) Under the terms of the trust the trustee was bound to sell the real property of the trust estate and to distribute the proceeds. The trustee attempted to make a sale of the property but was unable to do so, and after repeated endeavors with many prospective purchasers he finally em

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ployed real estate brokers. Through their efforts the sale was made, and the trustee, in good faith, paid them commissions to the amount of $231.25, which was the usual and a reasonable rate. The court below disallowed this item in conformity with the practice of disallowing commissions established by the learned trial judge to govern the administration of estates of deceased persons in the court over which he presides. The general idea which underlies the custom followed below is a very commendable one, inasmuch as its purpose is to reduce the cost of the administration of estates; but the rule cannot be made an inflexible one, and exceptions thereto must be indulged now and then. In this case we think the evidence shows that the employment of real estate brokers was reasonably necessary, and that the sum paid them by the trustee was a reasonable compensation. The testimony dealing with this phase of the case is not extended, for the reason that no beneficiary made objection to the expenditure, but we think that the evidence, which is uncontradicted, is ample to establish the conclusion reached by us.