Cranston v. Crane

SHINN, P. J. The State Controller appeals from an order sustaining objections to the report of the inheritance tax appraiser.

[802]The will, which was admitted to probate, reads in part as follows: "Twenty-First: I hereby nominate and appoint Winthrop M. Crane, my said attorney, the Executor of this Will. . . .

“If said Winthrop M. Crane, as the Executor of this Will, shall elect to act as his own attorney, he shall be fully compensated for his legal services as provided by law in addition to the compensation to which he shall be entitled by law for his services as such Executor, thus insuring a job well done.”

Mr. Crane qualified as executor and performed the necessary legal services. An inheritance report was furnished by the executor in which the amounts of the statutory executor’s commissions and attorneys fees were claimed as deductions. A report was filed by the inheritance tax appraiser which allowed, as a deduction, the amount of the executor’s statutory commission but disallowed the claimed deduction of the attorney’s fees. In the -report a tax was computed upon a bequest to Crane of $500 and also upon the amount of the attorney’s fees as if it were a bequest of cash to Crane.

In sustaining the executor’s objections the court ordered that the amount of the attorney’s fees be allowed as a deduction and that the same be not treated as a bequest of cash to Crane.

The general rule is that an executor or administrator who acts as his own attorney is not entitled to receive compensation for his legal services (Estate of Parker, 200 Cal. 132 [251 P. 907, 49 A.L.R. 1025]; Estate of Lair, 70 Cal.App.2d 330 [161 P.2d 288]; Estate of Scherer, 58 Cal.App.2d 133 [136 P.2d 103]). The reason for the rule is that it would be contrary to public policy to permit an executor or administrator to employ himself as attorney for himself as executor or administrator and receive compensation for his legal services. However, the rule does not apply if there is a will which provides, as the will here does, that a named executor may act in both capacities and receive both an executor’s commission and an attorney’s fees. It was so decided in Estate of Thompson, 50 Cal.2d 613 [328 P.2d 1], The court held that such a direction in a will is a proper exercise of the testator’s powers and must be respected, and that it is not against public policy to give effect to the provision of the will.