In Re Hansen's Estate HANSEN v. BIGGANE
Hansen v. Biggane
In Re Hansen’s Estate HANSEN v. BIGGANE
In Re Hansen’s Estate HANSEN v. BIGGANE
No. 2726
September 11, 1926.
248 P. 891.
Le Roy F. Pike, Henshaw, Black & Lyders, and Eric Lyders, for Appellants:
J. M. Lockhart, for Respondents:
OPINION
By the Court,
Sanders, J.:
Appellants are subject's of the kingdom of Denmark, and are the heirs at law and the distributees of the estate of Ole Hansen, who died in Los Angeles, Calif., in 1918, intestate, leaving an estate in Ely, White Pine County, Nevada, which place was deceased's domicile. The deceased left no known heirs, and the identity of appellants as his heirs was established through depositions taken under the direction of the Consul General of the United States at Copenhagen, upon interrogatories submitted upon an order of the court below in the matter of said estate.
On the 18th day of April, 1918, John W. Biggane qualified as administrator of said estate, and on the 20th day of May, 1925, as such administrator, 'filed his first and final account of his trust, showing total receipts of $14,716.22 and total disbursements of $1,668.90, thus leaving a balance in the hands of the administrator subject to distribution upon court order of $13,047.32. Upon the filing of his account the administrator petitioned for its allowance and confirmation, and prayed distribution of the estate and his discharge as administrator. In the petition it was represented that all the debts of the deceased and of his estate and all expenses of administration had been paid except the commissions, expenses, and allowances due the administrator and the attorney of record in the matter of said estate.
We note from the proceedings below that the affairs of the estate were not involved, and that the deceased was not indebted, and there was no outstanding indebtedness against his estate other than the funeral expenses. The legal work of the estate consisted simply of preparing the usual papers incident to the settlement of an estate and the preparation of applications and obtaining orders for the management of the property of the estate. The estate consisted of $5,884.67 on deposit in the First National Bank of Ely, Nevada, bonds of the White Pine Telephone Company of the face value of $5,000, and three lots at the corner of Fifth and Campton Streets, Ely, Nevada, of the appraised value of $2,650.
On the 19th day of June, 1925, upon notice previously given, the court allowed and confirmed the account of the administrator, and ordered that out of the sum of $13,047.32, the balance in the hands of the administrator subject to distribution, there be paid $1,300 as the compensation of the administrator and $2,000 as compensation for the attorney of record, reciting in the order or decree as follows:
"And which sums approved as a compensation to the said parties for such services, the services rendered by the administrator and his said attorney, and being deemed extraordinary services ip addition to their regular duties."
Appellants made no appearance in the matter of the administration of said estate and took no steps in the court below to have the settlement of the estate opened, vacated, or set aside, but appealed from the order of allowance and confirmation of the administrator's final account, and particularly that portion thereof which fixed the compensation of the administrator at $1,300 and that of his attorney at $2,000. In support of their appeal, based solely upon a transcript of the proceedings in the matter of said estate, appellants insist that the compensation allowed the administrator is in violation of the statute; that the compensation of the administrator and his attorney is excessive; that because of their mismanagement and negligence said parties forfeited their right to any compensation whatever; and that the court in the settlement of said estate should have surcharged the administrator with interest at the legal rate on the funds of the estate kept over for a long period of time in the First National Bank of Ely, Nevada, of which institution the administrator was cashier.
The decision and decree allowing the final account of the administrator is appealable, and appellants, being interested in and affected and aggrieved by said decision and decree, had a statutory right of appeal. Section 6112, Rev. Laws. Consequently the motion of the respondents to dismiss the appeal for want of a bill of exceptions is not well taken.
It is provided by statute that upon such an appeal the appellate court may in its discretion reverse, affirm, or modify the judgment, order, or decision appealed from. Section 6113, Rev. Laws. But there being nothing before the court other than the proceedings incident to the settlement of estates of deceased persons, we shall review the proceedings only for the purpose of determining whether the court exceeded its jurisdiction, power, and authority in fixing the compensation of the administrator and his attorney in the amounts specified as increased compensation for extraordinary services rendered the estate.
Section 6088, Rev. Laws, provides:
"He [the executor or administrator] shall be allowed all necessary expenses in the care and management as well as settlement of the estate, and for his services such fees as provided by law; but when the deceased shall, by his will, make some other provision for the compensation of his executor, this shall be deemed a full compensation for such services, unless the executor files a renunciation, in writing, of all claim 'for the compensation provided by the will."
Section 6040, Rev. Laws, provides:
"When no compensation shall have been provided by the will, or the executor shall renounce all claims thereto, he shall be allowed commissions upon the whole amount of the personal estate accounted for by him, as follows: For the first thousand dollars, at the rate of six per cent; for all above that sum and not exceeding five thousand dollars, at the rate of four per cent; for all above five thousand dollars] at the rate of two per cent and the same commissions shall be allowed to administrators. In all cases such additional allowance may be made by the court for services in regard to the real estate, when it shall be made to appear that the same is just and reasonable."
Under such statutory provisions it is universally held that personal representatives can be allowed only the compensation fixed by the statute even though the administration of the estate has been especially difficult or they have rendered unusual services which have benefited the estate. 24 Cyc. 988, note 24. As a result of section 6040, Rev. Laws, which fixes the exact amount of commissions allowed an executor or administrator, the court below exceeded its powers in allowing to the administrator an increased compensation for extraordinary services in addition to his regular duties. The statutory commissions are intended to be a full compensation for the services rendered during the entire administration, except an additional allowance may be made by the court for services in regard to the real estate, when it shall be made to appear that the same is just and reasonable. It is manifest that the court did not follow the statute in respect to the allowance of commissions and took no note of the statute in respect to an additional allowance in reference to the real property. The real property was sold upon court order in accordance with the requirements of the statute, and the salé was confirmed for the price of $1,800.
As to the compensation of attorneys in the matter of settlement of estates, section 6126, Rev. Laws, provides:
"This act shall be liberally construed, to the end that justice may be done all parties, and as speedy settlement of estates at the least expense secured; and all proceedings in matters of estate shall be proceedings of record as other actions and proceedings; and all attorneys for estates or executors or administrators appointed in the proceedings shall be attorneys of record with like powers and responsibilities as attorneys in other actions and proceedings, and shall be entitled to receive a reasonable compensation, to be paid out of the estate they respectively represent for services rendered, to be allowed by the court."
Under this statute the fees of attorneys are a charge upon the estate to be allowed by the court. In Re Hegarty's Estate, 47 Nev. 369, 222 P. 793. But the fees allowable under the statute are required to be reasonable. Unlike California, our legislature has not seen fit to provide a uniform standard for the determination of what shall be allowed for the services of an attorney, but leaves it to the discretion of the court; and, unlike California, no provision is made for increased compensation for extraordinary services rendered an estate by the attorney of record. Consequently, in the absence of a statute, we are not called upon in this case to consider whether the services rendered were extraordinary or not.
We are of the opinion that the court, in baling the compensation of both the administrator and his attorney upon what it deemed extraordinary services in addition to their regular duties, committed error.
In the present state of the record we cannot in fairness to the court below uphold the contention of counsel for appellants that bad faith was displayed in the appointment of the administrator and in the management of the estate by the administrator and his attorney. These were matters peculiarly within the province of the court of probate to consider and determine upon 'a proper showing, and we decline to convert this court into one of original jurisdiction and say that the respondents, because of their alleged derelictions, forfeited their right to any compensation whatever for the services rendered the estate, or that the administrator should be surcharged with interest on the funds of the estate.
The order will be that the cause be remanded for such further proceedings as the parties may be advised with respect to the compensation of the administrator and his attorney under the sections of the statute above set out.
It is so ordered.