Estate of Phelps

’SHAW, J.

This is an appeal by W. F. Chipman, one of the executors of the estate of Josephine A. Phelps, deceased, from an order of the superior court refusing to allow him further compensation as executor of the estate upon the settlement of his third supplemental final account thereof.

The final account and petition for distribution of the estate was filed on June 12, 1919. An order of distribution was made thereon, from which an appeal was taken, and thereupon the order was reversed" and the court below was ordered to make a different distribution thereof. On July 22, 1920, a second supplemental account was filed showing the receipts and expenses of the executors during the interval between that date and the original decree of distribution. The petition for distribution and this account came up for hearing on August 5, 1920. Thereupon a third supplemental account was filed covering the interval between the filing of the second supplemental account and the time of hearing. In the second supplemental account the said

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executor asked that his compensation for ,his services as executor be fixed and directed to be paid.

The total value of the estate accounted for was $539,388.82, upon which the executors were allowed the regular statutory-commissions as fixed by section 1618 of thé Code of Civil Procedure, amounting to $4,071.94. An error of forty-five dollars here appears in favor of the executors. Upon the final hearing in August, 1920, Chipman asked for an additional allowance as executor for services subsequent to the filing of the final account in June, 1919. He did not file any claim showing any extraordinary services, but claims compensation on the theory that the estate was closed at the time he filed the final account in June, 1919, and that for his services as executor subsequent thereto he is entitled to compensation in addition to that fixed by the code. It appears from the record that the services rendered subsequent to the account of June, 1919, consisted of the performance of the ordinary duties of an executor, such as the leasing of the property, collection of rents due on the property and of interest due on claims owing to the estate, and the paying out of such moneys as were necessary for the completion of the administration.

Section 1618 aforesaid provides that the executor of an estate must be allowed certain commissions “upon the amount of estate accounted for by him,” according to certain graded percentages upon the amount as therein fixed; that if there are two or more of them the “compensation shall be apportioned among them by the court according to the services actually rendered by them respectively”; that for any extraordinary services the court shall make a “just and reasonable” allowance, not exceeding one-half the regular commissions as fixed by the section, and that all contracts with an heir, devisee, or legatee for a higher compensation than that allowed by the section shall be void.