Davenport v. Simons

• Decision Date: 13 December 1947
• Docket Number: 7373
• Parties: DAVENPORT v. SIMONS
• Court: Idaho Supreme Court

189 P.2d 90

68 Idaho 21

DAVENPORT v. SIMONS

No. 7373

Supreme Court of Idaho

December 13, 1947

Rehearing Denied Feb. 11, 1948.

Rehearing Denied February 11, 1948.

Appeal from District Court, First District, Shoshone County; Miles S. Johnson, Presiding Judge.

Affirmed in part and reversed in part and cause remanded with instructions.

Robert E. Brown, of Kellogg, and James A. Wayne, of Wallace, for appellant.

Where community property is involved in the administration of an estate, the Probate Court has jurisdiction over both the half of the decedent and the half of the surviving spouse. I.C.A sec. 14-113; Swinehart v. Turner, 44 Idaho 461, 259 P. 3.

Both the commissions of an executor and the fees of his attorney are properly allowable on the entire community estate of the decedent and the surviving spouse, that being the sum accounted for by the executor. I.C.A. 15-1107, amended by S.L.1935, ch. 44, p. 82; I.C.A. 15-1139, amended by S.L.1935, ch. 52 p. 99.

The powers of an executor under a will authorizing him to sell property of the estate extends to the entire community estate. Swinehart v. Turner, supra; 21 Am.Jur. sec. 697, p. 773; I.C.A. 15-730; Vaught v. Struble, 65 Idaho 26, 139 P.2d 456, 148 A.L.R. 269; Sharp v. Loupe, 120 Cal. 89, 52 P. 134, 586; In re Wickersham's Estate, 139 Cal. 652, 73 P. 541.

Whitla & Knudson, of Coeur d'Alene, for respondent.

The maximum attorney fee as provided by statute must be computed only upon the decedent's estate. Fees for extraordinary services must be just and reasonable and based upon proof of such extraordinary services. Sec. 15-1139, as amended by Chapter 52, 1935 Session Laws. Swinehart v. Turner, 38 Idaho 602, 224 P. 74.

The executor's commission must be computed only upon amount of the estate of the decedent. Sec. 15-1107, as amended by Chapter 44, 1935 Session Laws.

When the executor takes into his possession the surviving spouse's share of community property, he must account for it and return it to the surviving spouse if it has not been necessary for him to dispose of it in order to pay community debts, taxes, expenses of administration, etc. Sec. 14-113 I.C.A.; Kohny v. Dunbar, 21 Idaho 258, 121 P. 544, 39 L.R.A.,N.S., 1107, Ann.Cas.1913D, 492; Peterson v. Peterson, 35 Idaho 470, 207 P. 425; Ewald v. Hufton, 31 Idaho 373, 173 P. 247; Swinehart v. Turner, 38 Idaho 602, 224 P. 74; Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955; In re Wickersham's Estate, 139 Cal. 652, 73 P. 541; 31 Corpus Juris 217.

Budge, Chief Justice. Givens, Holden, and Miller, JJ., and Sutton, District Judge, concur.

OPINION

Budge, Chief Justice.

This case was here upon a former appeal and may be referred to for information as to the facts. Simons v. Davenport, 66 Idaho 400, 160 P.2d 464. Further proceedings were had in the probate court, from which an appeal was taken to the district court, and from said district court to this court.

The notice of appeal recites, inter alia, that the appeal to the supreme court is from the judgment and decree entered by the district court November 27, 1946, and from the whole of said judgment, upon questions of both law and fact.

Respondent having made settlement with all heirs, legatees and devisees in and to the property involved in this action, there is no issue raised as to the right of respondent to have the entire estate distributed to her.

April 29, 1942, Henry S. Davenport died testate in Shoshone County; May 25, 1942, W. T. Simons was duly appointed executor of his estate, and June 10, 1942, filed an inventory and appraisement of the estate. In the inventory property of the value of $ 34,751.39 was accounted for, of which the appraisers found only $ 3,050 was separate property of decedent, and the balance of $ 31,701.39 was the community property of decedent and his wife, the respondent. However, upon his final accounting the executor accounted for $ 40,597.03, and by his supplement to the final account for an additional sum which brought the grand total to $ 42,205.10. On this sum, the total amount accounted for by the executor, the commissions of the executor and the fees of his attorney were calculated and paid. The attorney was also allowed fees for extraordinary services for the alleged collection of merchandising accounts in the further sum of $ 792.16. Objection was made in the probate court to the allowance of the executor's commissions and the fees of his attorney calculated upon the grand total value of the estate, namely $ 42,205.10, and fees allowed the attorney for extraordinary services, but said fees were allowed.

This brings us to the first and second assignments of error which present the questions of whether or not the commissions of the executor and the fees of his attorney should be calculated and paid upon the entire community estate plus the separate estate of decedent, or only upon the one-half interest of the decedent plus his separate estate; also, whether or not the attorney for the executor was entitled to an allowance for extraordinary services in the amount heretofore stated.

Section 15-1107, I.C.A., as amended by Sess.Laws, 1935, chap. 44, p. 82, provides:

"When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commissions upon the amount of the estate accounted for by him, * * *" (Emphasis added).

Section 15-1139, I.C.A., as amended by Sess.Laws, 1935, chap. 52, p. 99, fixes the maximum amount of attorney's fees to be charged for all services rendered to executors or administrators in the probating of estates. The probate court has jurisdiction over and administers the entire community estate upon the death of either spouse, and the settlement of the entire community estate for the purpose of satisfying community debts.

Section 14-113, I.C.A., provides, in part, as follows:

"Upon the death of either husband or wife, one-half of all the community property shall go to the survivor, subject to the community debts, and the other half shall be subject to the testamentary disposition of the deceased husband or wife, * * *."

Construing the section last above quoted in Swinehart v. Turner, 44 Idaho 461, at page 467, 259 P. 3, this court held:

"On the death of either spouse, the community property being liable for the community debts, the administration of the estate draws to it the liquidation and settlement of the entire community estate for the purpose of satisfying the community debts, which makes it necessary for the probate court to assume jurisdiction over and administer both moieties of the community fund."

In Bancroft's Probate Practice, Vol. 2, sec. 432, p. 808, the following language is found:

"The result is that in California attorneys' fees for 'conducting the ordinary probate proceedings,' are now computed solely on the amount of the estate accounted for by the executor or administrator, and all discretion of the court in the matter is apparently excluded."

In Re Estate of Pringle, 51 Wyo. 352, 67 P.2d 204, 206, 110 A.L.R. 987, at pages 990, 991, it is said:

"In United States v. Rehwald, D.C., 44 F.2d 663, the court, in defining the words 'account for,' said: 'The term "account for" has been in various state adjudications interpreted to mean paying over the money to the person entitled thereto.'"

And makes the further observation:

"We are of the opinion that the amount of the compensation should be fixed upon the value of the estate at the time of the settlement, the appraised valuation being disputed."

In other words, the estate accounted for is not controlled by the appraised value or inventory. The executor or administrator, under the statute, must account for the entire community estate. The probate court has jurisdiction to administer the entire community estate for the purposes enumerated in the statute. Therefore, it would seem to follow that the executor and his attorney in the instant case were legally entitled to compensation as fixed by statute computed upon the entire community estate accounted for, as herein defined, plus the separate estate of the deceased, and not upon the half of the community property belonging to the deceased spouse, plus his separate estate.

In connection with the question above discussed, was the attorney for the executor improperly allowed $ 792.16 for the alleged collection of merchandising accounts outstanding and owing to decedent at the time of his death?

Section 15-802, I.C.A., provides:

"The executor or administrator must take into possession all the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate. * * *"

Sess.Laws, 1935, chap. 52, sec. 1, p. 99, amending sec. 15-1139, I.C.A., provides:

"In all cases such further allowance may be made as the Probate Judge may deem just and reasonable, for any extraordinary services."

It was the duty of the executor to collect all debts due to the decedent or to the estate for which services the statute fixes his compensation. There is no evidence in the record as to what, if any, extraordinary services were rendered by his attorney. No suits were brought for or against the estate; no evidence of extraordinary services of any kind were submitted to the probate judge upon which to base such a claim. Section 15-1139, I.C.A., as amended, supra, fixes the maximum amount of attorneys' fees, and includes all charges for all services rendered the executor in probating the estate in the absence of extraordinary services. No extraordinary services having been established, the allowance to the attorney of the amount above indicated was without justification and void. The attorney could not, under the statutes as we construe them, receive the maximum amount of...