McReavy v. Shaw

STEPHENS, J.,

pro

tem.

William Shaw died leaving a will wherein he appointed the appellant herein, Marie Shaw McReavy, executrix and trustee. The twelfth paragraph of the will reads as follows: “I hereby affix the compensation of my executor and trustee at the sum of $10 per month, for the first twelve months after qualifying as such, and $5.00 per month for each month thereafter.” Decedent left a codicil to his will, the second paragraph of which reads: “It is my further will and desire that the compensation of my executor and trustee fixed in the twelfth paragraph of my said will be thirty dollars ($30) per month instead of ten dollars ($10) and five ($5) per month respectively, as therein provided, and that said paragraph twelfth of my said will is hereby revoked and changed accordingly.”

The named executrix entered upon her duties as such, but under the provisions of section 1618 of the Code of Civil Procedure she renounced her right to the designated compensation as executrix by signing and filing with the court a document which reads as follows: “Renunciation of Compensation Given Executrix By Will. Comes now Marie Shaw McReavy, the duly appointed, qualified and acting executrix of the above-named estate, and hereby renounces all compensation given her under the last will and testament of William Shaw, deceased, and hereby elects to take the compensation allowed her by law, under the provisions of

[639]

Section 1618 of the Code of Civil Procedure of the State of California.”

Upon distribution of the estate she asked for and was allowed, after coming to this court (85 Cal. App. 518 [260 Pac. 351]), statutory executor’s fees together with some extraordinary fees. In her first annual account of her trusteeship she gave herself credit for the sum of $345 as her compensation at the rate of $30 per month from the fourteenth day of January, 1927. Respondent objected thereto and successfully contended in the superior court that “the executrix has obtained a large sum of money over the amount provided in the will as extra compensation solely, by waiving the compensation provided in the will, part of which was the appointment and compensation as trustee.”