Los Angeles herald., 1892-07-15
SOME PROBATE LAW.
An Ex Parte Motion in the
Nadeau Estate Matter.
Judge Clark's Decision Contains Some
Nice Points.
Matters Pertaining to the settlement of
Final Account of Executors.
The Points of the
Case.

Juuge Clark yesterday hled an opinion
in the matter of the estate of the estate
of Remi Nadeau denying an ex parte
motion. The opinion is as follows, and
covers some nice points bearing on the
law Of probate:
Settlement OF final account of ex-
ecutors.
First-Where no compensation is pro-
vided for by will, executors must be
allowed commissions upon the amount
of the estate accounted for by them.
Code Of civil procedure, section 1913.
In estimating commission, the appraised
value of the estate is prima facia the
true value, but where it is subject to
circumstances the value of the equity
should, think, be taken as basis.
The appraised value of the real estate of
deceased was 5000, 400. This was sub
ject to membranes aggregating $780,
1850, which must be deducted, and
when deducted leaves $440, ,027. 20. To
this sum should be added the personal
property accounted for, appraised at
$130,711.40, and the income from the
estate received and accounted for,
amounting to $142,6 "a. Estimating
commissions upon this basis, and ac-
cording to the statute, the commissions
to be allowed the executors aggregate
$8954.
Said section 1918 civil code procedure
provides that in all cases such further
allowance for extraordinary services as
the court may deem just and reasonable,
but not to exceed one-half the commits
sion allowed by said section, may be
made. The executors ask that their
commissions be increased one-half, but
in view of the showing made by them,
and the fact that the extraordinary SER
vices which the nature and condition of
the estate required were rendered by
agents and bookkeepers employed by
them, and they having been allowed in
their accounts as wages for such en-
ployees sums aggregating about $5474,
including $1100 paid for bookkeeping,
| am of opinion that this request must
be refused.
The executors ask to be allowed to re-
resign, and that an administrator with
the will annexed be appointed. There
is but one aggregate sum to be allowed
as commissions for administration
(estate of Barton, 55 Cal. !, 81, and if
their resignation be accepted part OF
the commissions sufficient to compen-
safe such successor must be retained.
Second-Said deceased in his lifetime,
in consideration of love and affection
and in consideration of an agreement
upon her part that the came should be
received and accepted as her full share
in his estate, conveyed to his wife Laura
M. Nadeau certain property in the city
of Los Angeles known as the Nadeau
hotel property. Said conveyance was
made subject to a mortgage to one Jas
per Horrell of $225, 200, which the de-
ceased for the consideration above stated
covenanted against.
The will of deceased provided First.
1t is my will that me executors, herein
after named, pay out of my estate the
tain lot in the city OF Los Angeles which
l conveyed to my wife, Laura M. Ma
deau, by deed dated December 80, 1885,
and to comply with and fulfill my cove
nant in said conveyance to cause said
premises to be. released and discharged
of all existing Membranes thereon"
The said Jasper Horrell proved
his claim against said estate in the man
ner required by statute, but the same
was not paid by the executors. they not
having sufficient funds wherewith to
pay it, and it was satisfied by a fore
closure of the mortgage and sale of said
premises. The said Laura Nadeau has
assigned to M. A. Powell and J. HI. Bell
all claim that she may have by reason
of said conveyance and provision in the
will, and said assignees now petition the
court to be subrogated to the rights of
Jasper Horrell against the said estate.
sa 1t would seem clear that the said con-
veyance and covenant OF deceased
would be, as against creditors of de-
ceased, voluntary, and the said
Laura Nadeau or her assignees
cannot, therefore, be subrogated
to the full rights of Jasper Horrell as a
creditor OF such estate. But as against
the deceased, his devisees, legatees and
other volunteers the said covenant
would be valid and binding, and to that
extent the right of subrogation might
perhaps exist. Before granting the mo- 4
tion, however, such volunteers should,
l think, have an opportunity to be heard
and the motion should not be granted
ex parte. 1t will therefore be denied
without prejudice. Let an order be en-
tered in accordance herewith.
CHAMBER OF COMMERCE.