Re Assignment of Woodall , 33 Or. 382 ( 1898 )

Mr. Chief Justice Moore,

after stating the facts, delivered the opinion of the court.

It is admitted that the assignee faithfully discharged the trust which he accepted, and personally performed all the duties connected therewith, except caring for the store; and the evidence tends to show that, if he had devoted his whole time and attention to the management of the estate, he could have performed all the service which the business demanded, thereby rendering it unnecessary to have employed a salesman. The statute prescribing the duties and compensation of an assignee requires that he shall, as soon as the estate can be settled, render a final account of his trust to the circuit court, which is authorized to allow him such commission. as may be considered just and right. Hill’s Ann. Ijaws, § 3180. It is held in some jurisdictions that where the deed of assignment contains no express stipulations for compensation to an assignee, and the statute fails to make any provision therefor, he is entitled to none; while in others it is held that upon the settlement of his account he is entitled to the same commissions allowed to an executor or administrator, or there may be paid to him such reasonable- compensation on account of his services as the court may deem just. Burrill, Assignm. § 376 et seq. The assignee having accounted for the sum of $7,265.16 as the value of the whole estate, if he is to be allowed the same commission thereon as is ordinarily awarded an executor or administrator, his compensation would have been only $265.30. Hill’s Ann. Laws, § 1180.

An assignee may deem it expedient and to the best interests of the estate to continue the operation of the business in which the assignor was engaged, in the hope that the insolvent may be enabled thereby to pay his creditors’ demands, and thus redeem his property; but in the case of a decedent’s estate no such expectation can ever be entertained, and hence the assignee may be required to perform greater service than is demanded from an executor or administrator, in view of which the commissions allowed the latter would often be entirely inadequate for the former. When such extra service has been rendered by the assignee, he ought to have such compensation as would be reasonable, in view of the time, talent, and character of service employed in the management of the trust estate. The allowance of compensation to an assignee for service rendered in the discharge of his duties must necessarily be a matter resting largely within the discretion of the circuit court, which, being cognizant of the character of the service performed, can ordinarily be depended upon to make a fair allowanee for unusual demands upon the assignee’s time ; and, this being so, the amount so awarded ought not to be disturbed on a review of its acts on appeal, unless it clearly appears that there has been a manifest abuse of discretion, or that the amount allowed is disproportionate or not equivalent to the service performed. Muldrick v. Galbraith ( Or.) 49 Pac. 886. The evidence shows that Pattei’son made several journeys from Long Creek to Canyon City and elsewhere in the interests of the estate, but we think the court allowed him a reasonable compensation for his service, or, at least, that there has been no abuse of discretion ; and hence it follows that the judgment must be affirmed.

Affirmed .