Security-First National Bank v. Frazier

CONREY, P. J.

The appellants are executors of the last will and testament of Mary H. Spires, deceased. As such executors they filed their “petition as executors for allowance for fees for extraordinary services” rendered by them in the course of administration of the estate. The executors being dissatisfied with the amount of the allowance made to them by the court, appealed from the order by which the amount of such allowance was determined.

Mrs. Spires died on the third day of January, 1924, and her will was admitted to probate on the twenty-third day of that month. The petition of the executors claiming a fee for extraordinary services was filed on the seventeenth day of March, 1930. Respondent Frazier, a legatee under the will, objected to the malting of an allowance in the sum asked for by the executors, her objection being based upon grounds hereinafter stated. The issue having been tried and submitted the court made its order, which was filed on the fifth day of February, 1931. Section 1618 of the Code of Civil Procedure, as in force at the time of the death of Mrs. Spires, provided that an executor should be allowed certain stated commissions and in addition thereto provided as follows: “In all cases, such further allowance may be made as the court may deem just and reasonable for any extraordinary service, and the total amount of such extra allowance must not exceed one-half the amount of commissions allowed by this section.” In the year 1925 said section was amended, and by such amendment the clause limiting the total amount of such extra allowance was omitted, and the limitation was thereby removed.

In its findings of fact recited in the order, the court found that the reasonable value of the extraordinary ser

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vices rendered by the executors was substantially in excess of the sum of $7,241.26; “but the court, solely for the reason that it is of the opinion that its power to make such allowances for extraordinary services is limited by the terms of section 1618 of the Code of Civil Procedure as the same existed at the time of death of decedent and probate of the will of said decedent, has concluded that it can make to the said executors no award or allowance for the said extraordinary services in excess of the sum of $7,241.26”.