Carver v. Carmichael

California Supreme Court Dec 20, 1898 No. Sac. No. 365Published

Before: Haynes

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Holding. An administrator is entitled to statutory commissions even if they have been negligent or mismanaged the estate, provided that any losses resulting from such neglect are charged against those commissions.

Issues

Whether an administrator may be denied statutory commissions due to negligence or mismanagement of the estate.
Whether the appraised value of real estate is the proper basis for calculating statutory commissions when the property was used to satisfy a mortgage debt.

Disposition. remanded

Quotations verified verbatim against the opinion

“I think the true rule, and one that is sustained by our own decisions, is that an administrator should be charged with losses resulting from his default or neglect, and allowed his commissions.”

“The court can neither add to nor detract from, nor in anywise vary, the compensation directed to be allowed by the statute”

Synopsis

Estates of Deceased Persons—Loss by Neglect of Administrator— Commissions.—An administrator is liable for loss to the estate caused by his default or neglect, but he does not for that reason lose his statutory right to his commissions. He should be charged with such loss in his' account, and credited with his commissions.

Id.—Waiver of Compensation—Withdrawal without Objection.—A waiver of compensation made by an administrator, which is withdrawn by consent of the court, and without objection made by any one thereto, is not effective to defeat his right to commissions.

Id.—Computation of Commissions—Value of Property—Appraisement in Inventory.—The valuation of the property of the estate made in the inventory, though not conclusive, is prima facie evidence of its value; and the administrator should be allowed commissions on that valuation at statutory rates, in the absence of proof that it is not fair and reasonable.

Id.—Loss of Money Dub to Estate—Charge to Administrator—Neglect to Appeal.—Where money belonging to an estate was ordered to be charged to the administratrix, though it appeared upon the face of the order that it was in the hands of her mother, the order, if erroneous, must be appealed from, otherwise she is concluded thereby, and is chargeable with the amount, whether collected or not, if necessary for the payment of creditors.

HAYNES, C. The administratrix appeals from an order settling her final account, in which the court denied her right to any commissions, and charged her with the sum of $535.72, as cash on hand, “said sum being the amount found due said estate from Ann A. Carver in the settlement of the action of McHenry v. Carver et al.” No other items are involved in this appeal.

1. Is appellant entitled to commissions in the sum charged, or in any sum? The value of the property, as shown by the inventory and appraisement, was $33,248.03, and the commissions charged were based upon that sum, computed at the statutory rate, and amount to $1,317.44.

The findings of the court are those recited in the preliminary part of the order or decree, and, so far as they affect appellant’s right to commissions, are, in substance, that the administratrix failed and neglected for an unreasonable length of time to render a proper or legal account, that she neglected for an unreasonable time to pay debts and claims while she had sufficient money in her hands to pay them, “and has been negligent in other particulars without sufficient cause or excuse, and that she is not entitled to any commissions as claimed in her final account.”

It was also found “that she had not used any of the property or money of said estate for her own benefit, nor has she mingled the funds of said estate with her own funds; that the sales of the personal property of said estate made by said administratrix were fairly made, and the fair market price was obtained therefor.”

I think the court erred in refusing to allow commissions to appellant.

Section 1618 of the Code of Civil Procedure provides: “When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commissions upon the amount of estate accounted for by him, as follows: . . . . The same commission shall be allowed to administrators.”

The statute imposes no conditions as to the allowance of the [104]commissions at the rate stated in said section, though it permits the court, in its discretion, to make a further allowance for extraordinary services. The administrator is chargeable with debts which remain uncollected through his fault or neglect (Code Civ. Proc., sec. 1615), and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the estate, his letters may be revoked (Code Civ. Proc., sec. 1626); but it is nowhere provided that for any fault, mismanagement, neglect, or loss resulting therefrom that he shall be deprived of the compensation provided by law; though in such cases the administrator will be charged with the loss and credited with his commissions; so that, so far as necessary, his commissions will be applied to the payment of such losses.

Carver v. Carmichael

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