Opinion
Hearing Granted Nov. 27, 1942.
Appeal from Superior Court, Los Angeles County; John Beardsley, Judge.
Action by Horace M. Dobbins against Title Guarantee and Trust Company, a corporation, to recover half of the sum of $15,000 received by defendant from an estate as fees for extraordinary services as an executor. From a judgment for plaintiff, defendant appeals.
Reversed.
COUNSEL
M. J. Rankin and Milo V. Olson, both of Los Angeles, for appellant.
Aaron Sapiro, of Los Angeles, for respondent.
OPINION
SHAW, Justice pro tem.
The plaintiff and the defendant were co-executors of the estate of Caroline W. Dobbins, deceased, administration of which was completed some time before the present action was brought. Plaintiff sues to recover half of the sum of $15,000 received by the defendant from the estate as extraordinary fees allowed by the probate court, alleging an agreement made by plaintiff and defendant before they qualified as executors that they would divide equally between them all fees received by either for services as executor. Plaintiff had judgment as prayed for, from which defendant appeals.
Defendant pleaded as a defense the order of the probate court awarding these fees to defendant for its services, and now contends that this order is an adjudication which is binding upon plaintiff. We think this contention must be sustained. The co-executors filed a joint final account and report, which included a petition for the allowance of extraordinary fees for defendant for services rendered by it. This was signed by the attorneys who were acting for both executors and by an officer of defendant purporting to act for both plaintiff and defendant, but not by plaintiff personally. It alleged that defendant had performed extraordinary services, specifying them, for which it was entitled to extraordinary commissions, and prayed for an allowance of $15,000 therefor. Plaintiff was requested by the attorneys, before the account was filed, to furnish a statement of any extraordinary services rendered by him, for which he claimed extra fees, but he did not do so. Objections to the allowance requested by defendant and to other matters were made by persons interested in the estate. Due notice by posting was given of the hearing of this account. After a trial the court made findings declaring that defendant had performed extraordinary services for the estate, which were worth $15,000, and gave judgment ordering that this amount be paid to defendant out of the estate as "a reasonable fee for extraordinary services performed by said co-executor for and on behalf of said estate."
A hearing in probate on an account is in the nature of a proceeding in rem, and the order made thereon, due notice of hearing having been given, is binding and conclusive on all persons interested in the estate (Probate Code, § 931; 11B Cal.Jur. 611, 613; Carr v. Bank of America, etc., Ass’n, 1938, 11 Cal.2d 366, 371, 79 P.2d 1096, 116 A.L.R. 1282; In re Estate of Olcese, 1934, 1 Cal.App.2d 72, 80, 36 P.2d 215), as to all matters, the proper subject of account, necessarily involved in the account or actually included therein and passed upon by the court. In re Estate of Wear, 1942, 20 Cal.2d 124, 124 P.2d 12; In re Estate of Clary, 1928, 203 Cal. 335, 340, 264 P. 242; Sontag v. Superior Court, 1934, 1 Cal.App.2d 138, 141, 36 P.2d 140; In re Estate of Hovland, 1940, 38 Cal.App.2d 439, 446, 101 P.2d 500.
Here it is apparent from the face of the record that the matters now in question were included in the account and were passed upon by the court. That they were a proper matter of account is determined by the provisions of the Probate Code. Sections 900, 901 and 902 provide for compensation to be "allowed" to the executor and sections 921 and 922 clearly require such compensation, if claimed, to be included in an account, except as the matter may be otherwise presented to the court by proceedings under section 904 for a partial allowance of commissions. Section 901, after stating the amounts to be allowed as executors’ commissions, provides, "If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by each." Section 902 provides that "Such further allowances may be made as the court may deem just and reasonable for any extraordinary services * * *." These two provisions empower the court, on the hearing of an account in which executors’ compensation is claimed, where there are two or more executors, to inquire into the services performed by each and to apportion compensation accordingly. This the court did in the present case and its action was authorized by the Probate Code and is binding upon plaintiff.
The power thus vested in the court to apportion compensation among executors is discretionary in its nature, although limited by the findings which the court may make as to the services rendered by each executor. It cannot be controlled by any agreement which the executors may make among themselves regarding the apportionment, especially one made in advance of the rendition of any services. They are fiduciaries and are held to a strict and full discharge of their duties. They cannot be permitted, by their own agreement, to subject any one of them to the temptation to ignore or slight the performance of any duty immediately required of him by the exigencies of the estate, which might come to him by reason of the fact that such agreement deprived him of any compensation therefor. Such an agreement might properly be presented to, and considered by, the court, when the matter of an allowance of compensation was before it. If satisfied with the agreement the court could approve it and apportion the compensation accordingly. We think no further effect than this can be given to such an agreement. It cannot serve as the basis of a subsequent action by one executor against another to collect from that other a part of the compensation allowed to him in probate. Especially is this true where that compensation has been allowed specifically to one executor for extraordinary services performed by him. To give such a controlling effect to the agreement of co-executors would be to nullify the code provisions empowering and requiring the court to make the apportionment of ordinary commissions and the allowance of further compensation for extraordinary services.
On this point plaintiff cites and relies upon In re Estate of Carter, 1901, 132 Cal. 113, 114, 64 P. 123, 124, where the court, speaking of the ordinary commissions of executors and the claim of one executor, on appeal from an order settling an account, that he had a contract with his co-executor whereby he was to receive all the commissions, said, "What particular contracts may have been entered into between these parties as to the apportionment of the executors’ commissions is a matter which should be heard in another forum. The hearing of a final account by the probate department of the court is not the place to setttle disputes of this character. These parties are not entitled to litigate a question of that kind upon the hearing of the settlement of a final account." This case was decided in 1901, before the enactment of the above quoted provision now in section 901 of the Probate Code, relating to apportionment of commissions. That provision was taken from section 1618 of the Code of Civil Procedure and appeared in the last mentioned section for the first time in an amendment of 1909. Stats.1909, p. 252. Its enactment removed the whole foundation for the decision in the Carter case, as appears from the part of the opinion in that case just quoted. In re Estate of Carter, supra, was referred to on this point in Kelly v. Conroy, 1928, 91 Cal.App. 350, 352, 266 P. 1022, without any apparent notice of the fact that the statute had been changed since the Carter case was decided. There are statements in Kelly v. Conroy which may be regarded as inconsistent with our holding here; but they appear to be obiter dicta, and at any rate we prefer not to follow them.
The judgment is reversed.
SHINN, Acting P. J., and PARKER WOOD, J., concur.