In re Estate of Dunne

The Court. The decision of this appeal must depend upon the answer to be given to the question: Is it error for the court in which the administration of a decedent’s estate is pending, to allow to a legatee a portion of his legacy, under section 1661 of the Code of Civil Procedure, when the funds in the hands of the executors are no more than the amount which may be allowed to them, as commissions, under section 1618?

It is contended by the executors now here, that, by section 1646, they have the absolute right to retain throughout the administration any moneys which may come to their hands, beyond the amount necessary to pay funeral expenses, etc., and other debts, sufficient to meet the full amount of commissions or fees (basing the estimate upon the prima facie valuation of the inventory) to which they may be entitled. Logically the claim is broader, and includes a right to retain their commissions as against an order to pay any debt, other than for funeral expenses, etc.

Section 1646 reads:-

“ The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses, and expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay any other debt or any legacy until, as prescribed in this article, the payment has been ordered by the court.”

Section 1618, and the other sections to which reference is made herein, are found in a chapter which treats of “accounts.” The provision that, no compensation being provided by the will, the executor “must be allowed” commissions at a certain rate, is a direction to the court to allow him, at some accounting, commissions at the proper rate. So section 1616 directs: “He,” the executor or administrator, “’shall be allowed all necessary expenses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys, for conducting the necessary proceedings or suits in court, and, for his services, such fees as provided in this chapter,” etc.

As we have seen, section 1646 of the Code of Civil Procedure [380]is part of a chapter which treats of accounts. It can be given scope and effect by holding that, at an appropriate accounting, the executor or administrator shall be allowed credits for moneys by him paid for funeral expenses, expenses of the last sickness, and allowance made to the family of deceased, although no previous order has been made directing him to pay such moneys; that he shall also have credit for the amount of his commissions, when the time arrives for accounting with respect to them, but that he shall not have authority to pay, nor be allowed at any accounting, any other debt or any legacy, unless the court has expressly ordered the same to be paid.