Estate of Ricaud ( 1883 )

COFFEY, J.

1. The claimant of the specific legacy (the saloon) can take only such interest in the property as the testator had a right or power to dispose of by will. It follows, therefore, that the proceeds of the sale of the saloon, to-wit, $2,000, should be retired from the account and held subject to distribution, to be disposed of by the court according to the circumstances at such time existing.

2. Commissions can only be allowed, according to the statute, “upon the amount of estate accounted for” by the executor. He cannot be said, in the sense of the statute, to have accounted for estate to which it has been determined the estate had no title, which it appears never belonged to the estate, and is not returned or accounted for in this account.

The Principal Case was Affirmed by the supreme court of California in Estate of Ricaud, 70 Cal. 69, 11 Pac. 471, holding that an executor cannot claim commissions on real estate involved in litigation that ultimately results in a decision adverse to the estate. To the same effect is Estate of Delaney, 110 Cal. 563, 42 Pac. 981. Commissions are allowable, as a rule, upon all the property which comes into the possession of the executor or administrator and for which he is accountable, but upon no other: Estate of Simmons, 43 Cal. 543; Estate of Isaacs, 30 Cal. 106; Blackenburg v. Jordan, 86 Cal. 171, 24 Pac. 1061.