In re Pringle's Estate

• Decision Date: 19 April 1937
• Docket Number: 1954,1956
• Citation: 51 Wyo. 352,67 P.2d 204
• Parties: IN RE PRINGLE'S ESTATE; SPENCER, ET AL. v. PRINGLE (Two Cases)
• Court: Wyoming Supreme Court

67 P.2d 204

51 Wyo. 352

IN RE PRINGLE'S ESTATE;

SPENCER, ET AL. v. PRINGLE (Two Cases)

Nos. 1954, 1956

Supreme Court of Wyoming

April 19, 1937

APPEALS from the District Court of Converse County; C. D MURANE, Judge.

In the matter of the estate of Theodore Pringle, deceased. From a judgment fixing executor's and counsel fees, Alice Spencer and others, who objected to the executor's final account, and Charles Pringle, executor of the estate of Theodore Pringle, deceased, appeal.

Affirmed.

For the appellants in Case No. 1954 and the respondents in Case No 1956, there were briefs by John D. Dawson and T. C. Daniels of Douglas, and oral argument by Mr. Daniels.

An executor is not entitled to commissions for himself and his attorney upon assets of the estate upon each conversion by him of such assets into money or other property. Firebaugh v. Burbank, (Calif.) 63 P. 560. Appellants ask for a reduction of commissions returned by the executor and his attorney to the extent of $ 2,113.96, being 6% on the amount of the items duplicated in the account. An executor is not entitled to commissions for himself and attorney upon assets obtained from the ancillary administration of estate property in another state, the expense thereof having been paid out of the ancillary estate in the foreign jurisdiction. Bancroft's Probate Practice, 1979; in re McGannon's Estate, (Okla.) 150 P. 1114; Estate of Davis, (Calif.) 4 P. 22. An item allowed as commissions upon California property should be surcharged to the executor. An executor is not entitled to commissions for himself and attorney upon bills receivable of the estate, not collected by him but renewed or merged in judgment. Likewise, an executor is not entitled to commissions upon worthless items of the estate, he not being charged therewith. Sec. 88-2604, R. S., 14 C. J. 984 and cases cited. Prentiss-Hall Trust Service, p. 2064; Steel v. Holladay, (Calif.) 26 P. 563; Church on Probate Law and Practice, pp. 15-59; Canfield v. Newman, (Minn.) 215 N.W. 176; Short v. Phelps, (Texas) 274 S.W. 662. There were no extraordinary services rendered by the executor or his attorney in the estate. Bancroft's Probate Practice, 787-791; Steel v. Holladay, supra; Taylor v. Trefrey, (Mass.) 185 N.E. 1; In re Gerbereaux' Will, 266 N.Y.S. 134; In re Parker's Estate, (Calif.) 251 P. 907; Maynard v. Maynard, (Ky.) 64 S.W.2d 567; Carmody v. Cooper, (Ky.) 145 N.W. 16; Watkins v. Romine, (Ind.) 7 N.E. 193; Souter v. Fly, (Ark.) 33 S.W.2d 408; In re Moe's Estate, 237 N.W. 228; In re Parker's Estate, 200 P. 619. As to allowances made for attorney's fees, we cite: Snook v. Kennedy, (Wash.) 173 P. 643; In re Witt's Estate, (Wash.) 132 P. 1013; Shufeldt v. Hughes, (Wash.) 104 P. 257. An executor is not entitled to expenses for taking an attorney to another state to return the body of decedent who died in another state, the trip having been made prior to the executor's appointment. Estate of Moore, (Calif.) 139 P. 888; Estate of Byrne, (Calif.) 200 P. 619; In re Parker's Estate, (Calif.) 200 P. 619. The expenses of administering assets in a foreign state should be charged to the ancillary administration there, and not to the administration in the domiciliary state. In re Ortiz' Estate, (Calif.) 24 P. 1036. An attorney representing an executor is not entitled to charge mileage for automobile trips on estate business, where the estate is also charged for expenditures for gasoline, oil and other automobile services on such trips. Where vouchers have been lost and cannot be produced on the settlement, the payment may be proved by the oath of any competent witness. Sec. 88-2708, R. S. 1931; Rice v. Tilton, 14 Wyo. 101. As to the nature of vouchers, we cite Bancroft's Probate Practice, p. 1651. Allowances made to executors or their attorneys cannot be made without notice. Church's Probate Practice, Vol. 2, p. 1576; in re Jennings' Estate, (Mont.) 241 P. 655. Such allowances cannot be made until final settlement of the estate. Bancroft's Probate Practice, Volume 2, p. 792. A personal representative who pays over to himself for services an amount which the court refuses to approve, may be required to pay the money back to the estate.

For the respondent in Case No. 1954 and the appellant in Case No. 1956, there were briefs by Preston T. McAvoy of Newcastle and Joseph Garst of Douglas, and oral argument by Mr. Garst.

There was no complaint or an attempt to charge the executor with bad faith or negligence in the depreciation of items of the estate caused by a bank failure. The executor is not responsible for that. Secs. 88-2601, 88-2603, R. S. 1931. Since the hearing however, an additional dividend has been paid on the claim against the bank. 11 Bancroft's Probate Practice, 785. Attorneys for an executor are entitled to receive for services amounts fixed by the court, not in excess of that allowed to executors or administrators. Sec. 88-2608; Read v. Taliaferro, 37 Wyo. 107; 2 Bancroft's Probate Problems, 821; Re Princes Estate, 246 P. 713. Objections to allowances made by the court to executors or attorneys cannot be raised for the first time on appeal. Mulsum v. Walsh, 220 P. 1041; Hardy v. Carrington, 288 P. 620; Colt Co. v. Chevez, 282 P. 381; Sandall v. Sandall, 193 P. 1093; Oliver v. Polson, 201 P. 289; Lincoln v. Herndon, 285 P. 120. The trial court awarded the Wyoming executor commissions on the California estate property. This ruling was discretionary and not subject to review. 24 C. J. 985. A commission may be allowed on property in kind instead of money. 24 C. J. 979. Extraordinary services are a question of fact determinable by the trial court, and where allowed will not be disturbed in the absence of an abuse of discretion. Carris Estate, 165 P. 958; Broome's Estate, 122 P. 470; Miller's Estate, 155 P. 329; Niel's Estate, 242 P. 820. An executor is entitled to a commission upon the amount of the estate accounted for. Sec. 88-2607, R. S. 1931; Re Fernandez' Estate, 51 P. 851.

Dawson and Daniels in reply.

The executor is not accountable for uncollected debts remaining uncollected without his fault, Sec. 88-2604, R. S. 1931, nor upon items of no value. 14 C. J. 984. For that reason, there is nothing upon which to base the calculation. Steel v. Holladay, 26 P. 563. Administrator's fees should be based upon the real value rather than the appraised value of the estate. In re Johnson's Estate, (Wash.) 181 P. 209; In re Haggerty's Estate, (Wash.) 166 P. 1130; Re Fernandez' Estate, (Calif.) 51 P. 851; Pennington v. Newman, (Okla.) 129 P. 693; Re Carver's Estate, (Calif.) 55 P. 770. Payments by a representative to himself prior to hearing before the court, are made at his own peril. Re Sullivan's Estate, (Wash.) 78 P. 945. In Wyoming fees are regulated by statute. Secs. 88-2607 and 2608, R. S. The Taliaferro case is not in point on the facts in the present case.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

These two cases come to this court by direct appeal proceedings predicated upon the same record. They have been briefed separately, but they were argued together, and one opinion will suffice to dispose of both. They present attacks upon a judgment of the district court of Converse County fixing executor's and counsel fees in the matter of the estate of Theodore Pringle, deceased.

Case No. 1954

The judgment aforesaid was dated May 25, 1935, apparently having been signed on that date. The journal entry thereof has upon it a statement reading, "Filed for record this 29 day of May, A. D. 1935. Violet D. Stewart, Clerk of the District Court." Upon examination of the original form of the judgment presented to the clerk for her guidance in making the proper entry of the judgment on the journal of the court the quoted statement aforesaid also appears thereon in the form of the official filing stamp, the name of the clerk being signed in ink. In the notification given the trial judge by the clerk of the filing of the record on appeal in her office, which she is required to give by statute (Section 89-4910, W. R. S. 1931), the clerk states inter alia, above her signature, in reference to the judgment in question, "which said judgment was signed by you on the 25th day of May, A. D. 1935, and filed for record in the District Court for the County of Converse, on May 29, 1935." Otherwise than as stated it does not appear when the judgment was entered. It is evident, however, that it was not entered before the 29th day of May, 1935, for on that date the form mentioned above reached the clerk and received the filing stamp of her office.

This court has indicated that the record on appeal must show not only the entry of the judgment under review, but also the date of entry, and unless the record discloses the contrary, it will be presumed that it was entered either on the day it bears date or the date of its rendition. Cottier v. Sullivan, 47 Wyo. 72, 31 P.2d 675; Coffee v. Harris, 27 Wyo. 394, 197 P. 649. In Cottier v. Sullivan, supra, we said:

"It is evident that, following a common and proper practice in cases of this kind (Hahn v. Citizens State Bank, supra, at p. 479 of 25 Wyo. 467, 171 P. 889, 172 P. 705), the form of the judgment was approved and signed by the trial judge, and then delivered to the clerk for entry. The delivery of this approved and signed form to the clerk for entry may properly be considered the last act in the rendition of the judgment. Though, perhaps, the form for judgment need not have been 'filed' by the clerk, we accept his statement in his certificate, that it was filed July 5, 1932, as showing that it was delivered to him on that day. This is confirmed by the file mark on the copy of the judgment contained in the record. We think, therefore, that the record...