In Re the Estate of Carter , 132 Cal. 113 ( 1901 )

This appeal is taken by the executor from an order settling his account. He was a joint executor with one Hardin, and upon the settlement of their final account he was allowed one half of the commissions to which executors are entitled by the law. He now claims that he did nearly all of the work in the administration of the estate, and for that reason was entitled to a greater share of commissions than his co-executor. Some four years prior to the settlement of the final account he appropriated about one thousand dollars of the money of the estate, claiming it to be his commissions as executor. Upon the settlement of his accounts the trial court charged him interest upon this amount. This action of the trial court is also alleged to be error.

The appellant's first claim is to the effect that he had a contract with his co-executor and the devisees, whereby he was to receive all the commissions allowed to the executors. There is some evidence upon both sides of this claim, but the court holds the matter to be one of no importance. 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 settle 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. The existence of that character of contract, and its validity after being made, are matters of no interest to the estate, and must be heard and determined at some other time and in some other proceeding.

While the commissions of the co-executors need not necessarily be equal (Hope v. Jones, 24 Cal. 89), still it would only be in exceptional cases that this court would disturb the decision of the probate court in matters of this character. The law declares the commissions should be apportioned to each executor in proportion to the labor he has performed, and in the present case this apportionment is based upon an implied finding of fact which the court will not disturb. The apportionment made declares inferentially as a fact that there was no substantial difference in the amount of services performed by each of these two executors, and the evidence is fairly conflicting upon that point.

The executors was properly charged with interest upon the sum he appropriated as his commissions. He was not entitled to his commissions until the settlement of his final account. (In reRose, 80 Cal. 180.) This money belonging to the estate was appropriated by him to his own use, and under these circumstances he was properly charged with interest upon the amount.

For the foregoing reasons the superior court is directed to modify the order and decree of distribution by deducting therefrom the amount charged to the executor Rogers for interest upon the sum of $626.08, found to be due him for commissions, and as so modified the judgment and order will stand affirmed.

Van Dyke, J., and Harrison, J., concurred.

Hearing in Bank denied.