In Re Estate of Lewis

MORTON, J.,

pro

tem.

The appeal in this matter concerns solely the interpretation of a clause in the will of Otto S. Lewis, also known as O. S. Lewis, deceased, who died November 18, 1926. His will and the two codicils supplementary thereto were admitted to probate and the estate administered in Orange County, California. It involved properties in New Mexico, Arizona, Oregon, Washington and California, and required four years to administer. The Orange County Trust & Savings Bank, a corporation, was named executor in the original will, but this appointment was changed by the codicil. Reeves Aylmore was appointed executor under the terms of the second codicil. He duly qualified and carried through a very successful and beneficial administration of the estate.

Paragraph 13 of the will provided for the compensation of the executor in the following phraseology: “and hereby fix its compensation as such Executor at five per cent. (5%) of the moneys received and paid out by it”. At the hearing of the final account and petition for distribution, the court in its order determined the fees of the executor to be as follows: “That the Executor’s fees, by the terms of the will, are 5% of the moneys received and paid out. The term ‘moneys received and paid out’ used in the will being construed by the Court as meaning 5% on the total value of said estate in the hands of said Executor; the 5% to be figured on this basis and not 5% on the moneys received and again 5% on the moneys paid out.” The court decreed that the word “moneys” under the terms of the will of decedent meant the whole of said estate as received and accounted for by the executor. This portion of the order was not attacked by either side and is not before us for interpretation.

[92]

Therefore the only question involved on this appeal is whether the fees of the executor should be' five per cent or ten per cent of the whole estate.

Appellant contends that he is entitled to five per cent of all moneys received and five per cent of all moneys paid out, thus giving him as executor ten per cent of the entire value of the estate as his fee. In support of his interpretation of the paragraph of the will which is in question, appellant relies chiefly upon