The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1890-08-23
REFEREES REPORT.
Distribution to Minors Contrary
to the Will.

The report of Referee Timothy j. Lyons
ON questions arising in the settlement Of
the estate of the late Maria Agnes Eek
hardt has been confirmed by Judge Levy.
1t involved the settlement of the final ac-
count of the executors, filed six months
ago. the application of the daughter of de-
ceased, now Mrs. Louisa B. Henderson, to
modify decree of partial distribution
made N December last, and the question
whether the minor legatees OF the deceased
can be awarded their legaces before COM
ing OF age, against the provisions of the
will.
1t was urged against the executors that
they had expended much more money than
was necessary to prudent management of
the improved real estate at 1415, 1417, 1419
and 1927 California street, between Hyde
and Larkin; that they had exceeded their
powers and been extravagant in making
repairs. The referee found that the eX-
pendltures on the property at 14i5 amounted
to Y per cent of the gross rents; that the
expense of the property at 1417 was 20 per
cent OF the years rents; at 1919 there was
l2A per cent expended, and on the remain
ing house per cent. But, high as this
average percentage seems to be, it was fully
warranted by the circumstances as testified
to by witnesses. The law declares that
executors and administrators must keep all
buildings under their control in good
lenantable repair"
In this case the referee states the action
OF the executors was not only in good faith,
but involved much more care, labor and
management than are usual, and more,
perhaps, than the law eXacts. But the best
proof OF wise management is found in the
rentals received from the property. Three
OF the houses and lots are inventoried to-
gether and appraised at 900. The rents
there1rom Tor slXty-nlne months amounted
TO per cent per annum net. The other
mouse and lot were appraised at $4,000 and
the rents for seventy-twO months were 1872
per cent net.
The referee discusses the law on commits
slons OF executors, which provides that
where the property of the estate is dis
tributed in kind, and involves no labor be-
yond the custody and distribution of the
same, the commissions shall be computed
on all the estate above The value of $4,000
at one-half rates." He doubts if this can
ever apply to real estate especially inl-
proved realty, and he asks that if all real
estate, even improved, does not involve
some labor, beyond its mere custody and
distribution. The words lin kind tech
nlcaIly can only comprehend personal prop
erty, and when can 1t be said that personal
property involves no labor beyond the
custody and distribution" The words
might be construed as referring to special
kinds of personality, such as money in
bank, and bonds, and the referee thinks
they should not be given any broader con-
structi0n.
Iu the opinion of Mr.. Lyons, the full
statutory commissions must be awarded.
The executors in this estate only charged
commissions on S37,566, making their COM
pensati0n S1447, whereas they are entitled
to commissions upon all the estate ac-
counted for, which would give them
$l522 At.
Questioning the legality of distribution
now of tie children'S share of this estate,
when the will of deceased says in express
words, ito be distributed to them as they
respectively attain majority" the referee
observes that heirs and deyisees are in
vested with the title at the moment of tile
death OF the teStator or interstate, subject to
administration. Our distribution statutes
are mandatory and peremptory. Upon a
final settlement of accounts the residue of
the estate must be distributed, for the Su-
preme Court has declared, in the Estate of
Prltchett (51 Cal. Reports, that there can
be no postpOnement of distribution of an
estate until minor heir shall have attained
majority.
The finding of the referee is that the
share Of the children may be distributed TO
than