Fitzgerald v. Paisley ( 1899 )

Waterman, J.

2 An administrator merely collects money owing the estate, and pays it over to those entitled. He makes no investments, passes on the value of no sécuri- . ties, and incurs none of the responsibility that attaches to one who is obliged to transact such business. We do not think the rate of commission fixed in section 3415 is adequate compensation for such service as defendant must have performed. She was, without doubt, .entitled to something for necessary and extraordinary services, as provided in that section. Plaintiff argues that the requirement of the will that the trustee pay over annually the interest on the trust fund meant that she account for at least 6 per cent, net, that being the legal rate. Such a construction cannot be sustained. The trustee was obliged to use reasonable care in investing the money, so as to produce an income. When this was done, she was rinder obliga.tion to account only for the’ interest she received, less taxes and her lawful fees.

3 But the record shows affirmatively that no evidence was' offered of the value of her' services, and, under these circumstances, we do not think the court was authorized to fix the amount of her compensation. We have held with relation to attorney’s services, where the fee is to be fixed by the court, that, wdien the value is in disputé, the court cannot fix the same without taking evidence as to the amount. Craig v. Werthmueller, 78 Iowa, 598.

4 ’ It is thought by appellee that because the court overruled plaintiff’s objections to these charges as made in the report of 1895, and no appeal was taken therefrom, the matter as to all but the last year’s charge is res judicata. But the entry setting forth that ruling shows that the merits of the matter were not passed upon; for the court expressly reserved a future right of exception to plaintiff. For the error mentioned, the ruling is reversed.

Gran&er, J., not sitting.