In Re Esate of Cudworth

HENSHAW, J.

The two appeals taken to this court in

In the Matter of the Estate of Cudworth, Deceased,

may be considered together. Both are prosecuted by the son, a devisee under the will. The one is from that part of the decree settling the final account of the executor, wherein he is allowed full commissions upon the amount of the estate accounted for by him. The other is from that part of the decree of final distribution which adjudges certain property left by the deceased to be community property, instead of separate property, and distributes it accordingly.

1. The estate of deceased consisted of real property valued at $79,000; stocks, bonds, notes, and mortgages valued at $38,567. The executor accounted for $145,579, the increase being made up of rents, interest, and dividends collected by him. It is contended that the property of the estate was distributed in kind, involved no labor beyond the custody and distribution of it, and that therefore, under section 1618 of the Code of Civil Procedure, commissions should have been computed upon all of the estate above the value of twenty thousand dollars at one half of the ordinary rate fixed by law. But the court in probate found, “ that all of the property belonging to said decedent at the time of his death, and then forming part of his estate, and which has not since been disposed of by said executor, is not now in the same form or condition in which the same was in at the time of the death of

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said decedent, or at the time when it first came to the possession of said executor, and that all of the same cannot now be, and is not, distributed in kind; that the property of the estate of said decedent, and the care, management, and administration thereof by said executor, has necessarily involved, and the said executor has properly bestowed and expended thereon, labor beyond the mere custody and distribution of the same.” This finding derives sufficient support from the evidence. The only witness upon the question was the executor himself, and no effort was made to impeach or impugn his testimony. He testified that he took personal charge and possession of all the property described in the inventory, protected, managed, and cared for the same during administration; that it became necessary for him to surrender certain stock and bonds in exchange for new issues; that, before doing so, it became incumbent upon him to make, and he did make, a thorough and careful investigation of the affairs of the corporations; that he collected and realized on many of the promissory notes belonging to the estate, made diligent efforts to collect debts due, gave much personal time and attention to the condition and protection of twenty or more tenements belonging to the estate, bestowed labor upon their repairs and in efforts to rent and keep them rented, and protected the estate against suit to quiet title brought against him in his official capacity. The administration lasted for more than two years, during which time large sums of money were collected and disbursed in the preservation, protection, and care of the property of the estate, in the collection of rents, in the making of repairs, pursuit of tenants, and in the following up of debtors, in the examination and settlement of street assessments, payment of taxes and insurance premiums and water rates; in the making of contracts with laborers, carpenters, plumbers, and painters, and the necessary repairs for tenants; in the prosecution of a foreclosure suit. Besides all this, owing to the peculiar nature of the properties of the estate, it was necessary to keep an elaborate system of accounts with the tenants and other debtors of the estate, executing satisfactions of mortgages, indorsing upon numerous notes the many small payments made thereon, and finally, a contest of the will having been instituted, it became the duty of the executor to take due precautions to protect the will and make preparations for the contest, which in fact he did, though the contest was finally dismissed. Under