their neglect they are liable for, as also to creditors for
damage or loss in paying debts out of their order.-
Lenoir vs. Winn, 4 De Saussure, p. 65; Knox vs.
Picket, id., p. 92. Also, for interest on moneys used
by him or retained longer than necessary, and for fur-
niture of estate used.-Id., p. 463. See cases cited in
notes to Chap. VIII, ante. They are liable for the
rents of leasehold estate of which their testators or
intestates were assignees, which they entered into pos-
session of.--Smiley vs. Van Winkle, 6 Cal., p. 606.
This case presented the matter in a somewhat different
light, however. If an administrator occupies and uses
the estate he cannot be allowed to make any profit
thereby, and in any event must account to the Probate
Court for the rental value.-See Secs, 1390, 1452, and
this section (1613), and notes; Wallis vs. Walker, 37
Cal., p. 431.

profit or

estate.

1614. (§ 217.) He shall not make profit by the Not to increase, nor suffer loss by the decrease, or destruc- lose by tion, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made.

NOTE.-The administrator, in the absence of special authority, must administer the estate as he finds it, paying taxes and other necessary expenses, and doing such other acts as are necessary to preserve it as left; he cannot advance money to remove incumbrances, unless his intestate was bound to pay it. If he improves the estate, or betters the title in this way, it must be at his own risk. The loss cannot be visited on the heirs, who gave him no authority to cause it. Nor can he ask legal protection, when he has himself, though with the best of motives, gone beyond the provisions of the law.-Estate of E. Knight, 12 Cal., p. 208. See sequel to this case.-Tompkins vs. Weeks, 26 Cal., p. 62. We cannot relax or set aside the rules of law to suit exigencies of certain cases or relieve individual instances of hardship.-Id. He holds money received on account of the estate in a fiduciary capacity, for the use of the creditors of the estate and other beneficiaries thereof.Broderick's Estate, Magraw vs. McGlynn, 26 Cal., p. 429. This case is constructive of this section. It is not error to hold the administrator for the use and occupation of the premises in his hands prior to sale,

Uncollected debts without fault.

Compensation of the executor

and administrator.

but aliter after the sale, for after the sale neither the
estate nor its heirs had any interest therein.-Wallis
vs. Walker, 37 Cal., p. 431; see, also, Brenham vs.
Story, 39 Cal., p. 188. A willful failure to do that
which the will requires, renders the executor liable.-
Estate of James Holbert, 39 Cal., p. 601. And it may
be said that the requirements of the Code operate
on the administrator as the will does on the executor.
These questions are fully considered in the case last

supra.

1615. (§ 218.) No executor or administrator is accountable for any debts due to the decedent, if it appears that they remain uncollected without his fault.

1616. (§ 219.) He shall be allowed all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as provided in this Chapter; but when the decedent, by his will, makes some other provision for the compensation of his executor, that shall be a full compensation for his services, unless, by a written instrument, filed in the Probate Court, he renounces all claim for compensation provided by the will.

NOTE.-Costs may be allowed, if paid in bona fide litigation.-Hickox vs. Graham, 6 Cal., p. 169. To prevent waste, and protect the estate from unnecessary costs, was the intent in allowing the administrator to pass upon the validity of claims against it.-Hutsch vs. Porter, 10 Cal., p. 559. See Commissions, and division thereof, between co-executors.-Thomas Hope vs. D. W. Ap. Jones, 24 Cal., p. 93. Counsel fees and moneys expended on account of the estate. See Gurnee vs. Maloney, 38 Cal., p. 87; Estate of M. Gasq, October Term, 1871; Estate of Simmons, July Term, 1871, cited in note to Sec. 1741, post. In the Gasq case the Court say: having used the funds of the estate, the administrator, is properly chargeable with interest. The judgment of the Court below, fixing counsel fees, will not be disturbed.-Utica Ins. Co. vs. Lynch, 11 Paige, p. 525. He should keep the funds separate from his own.

1

purchase

against

1617. ($ 220.) No administrator or executor shall Not to purchase any claim against the estate he represents; claims and if he pays any claim for less than its nominal the estate. value he is only entitled to charge in his account the amount he actually paid.

NOTE.-What is a claim.-See Secs. 1490, 1494, ante,
and notes; and Gray vs. Palmer, 9 Cal., p. 636, as to
claims arising from partnership matters. Where one
purchased for and at the request of an administrator, for
his benefit, the property of the estate of which he was
administrator, held invalid, so far at least as to make
the administrator responsible for the true value of the
property.--Ames vs. Downing, 1 Brad., p. 321. In
view of securing the administration of an estate, one
who purchases claims against it, at a reduced price, is
only entitled to credit for the price actually paid.-
Chevallier vs. Wilson, 1 Texas, p. 161. Claims and sales
treated of in 21 Cal., p. 28-Fallon vs. Butler.
acts performed by the administrator, as such, must be
acts authorized by law, such as are within the general
scope of his powers, and not for the purposes of specu-
lation, enhancing the value of the estate and making
large profits himself.-Tompkins vs. Weeks, 26 Cal.,
p. 60.

The

and admin

commis

sions.

1618. (§ 221.) When no compensation is provided Executor's by the will, or the executor renounces all claim thereto, istrator's he must be allowed commissions upon the amount of the whole estate accounted for by him, as follows: For the first thousand dollars, at the rate of seven per cent; for all above that sum and not exceeding ten thousand dollars, at the rate of five per cent; for all above that sum, at the rate of four per cent; and the same commission must be allowed administrators. In all cases, such further allowance may be made as the Probate Judge may deem just and reasonable, for any extraordinary service. The total amount of such allowance must not exceed the amount of commissions allowed by this section.

NOTE.-Stats. 1861, p. 646, Sec. 76. Here may again be referred to Judge Baldwin's "hard case " of Estate of Knight, 12 Cal., p. 207, where the administrator paid out money in good faith, but without authority;

also, McDevitt vs. Sullivan, 8 Cal., p. 592; Harris vs.
Reynolds, 13 Cal., p. 514; Kline vs. Chase, 17 Cal., p.
596; and Knight vs. Truett, 18 Cal., p. 113. The di-
vision of commissions between co-executors is a matter
for the Probate Court.-Thomas Hope vs. D. W. Ap.
Jones, 24 Cal., p. 93. The District Court has no juris-
diction over such matters. The matter of commissions
and compensation considered in Estate of Isaacs, 30
Cal., p. 113. On the estate from which the homestead
is carved, they are entitled to commissions.-Id. See
interest on judgment against creditors.-Id., p. 112; see,
also, Wells, Fargo & Co. vs. Robinson, 13 Cal.,
Emanuel vs. Norcum, 7 How., Miss., p. 150.

p. 144;

To render

an exhibit

and

ARTICLE II.

ACCOUNTING AND SETTLEMENTS BY EXECUTORS AND ADMINISTRA

TORS.

SECTION 1622. To render an exhibit of receipts and disbursements,

and claims allowed.

1623. Citation to account at third term.

1624. Petition for citation to render final or other account.

1625. Citation to account on application.

1626. Objections to account, who may file.

1627. Attachment for not obeying citation.

1628. To render accounts at expiration of term.

1629. Executor to account after his authority revoked.

1630. Revoking authority of executor, when.

1631. To produce and file vouchers, which remain in Court.
1632. Vouchers for items less than twenty dollars, when

excepted.

1633. Day of settlement to be appointed, and must give no-
tice thereof.

1634. Final settlement, partition, and distribution may be
made at same time. Postponing order is notice.
1635. Interested party may file exceptions to account.
1636. All matters may be contested by the heirs. Hearing

may be postponed.

1637. Settlement of accounts to be conclusive, when and

when not.

1638. Proof of notice of settlement of accounts.

1622. (§ 222.) At the third term of the Court

of receipts after his appointment, and thereafter at any time when required by the Court, either upon its own motion or

disburse

ments,

and claims allowed.

upon the application of any person interested in the

estate, the executor or administrator must render, for Same. the information of the Court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presented against the estate and the names of the claimants, and all other matters necessary to show the condition of its affairs.

NOTE.-1. A CREDITOR IS INTERESTED.-Tomp-
kins vs. Weeks ei al., 26 Cal., p. 57. This section
allows compensation upon the whole value of the estate,
real as well as personal, at the e-tabiished rates (Ord
vs. Little, 3 Cal., p. 387); but this does not mean that
it may be allowed to a succession of administrators.-
Id. He is entitled to compensation on that estate,
though the right to it is contested, which comes to his
hands and is protected by him.-Wells, Fargo & Co.
vs. Robinson, 13 Cal., p. 133; see note to preceding
section; Gray vs. Palmer, 9 Cal., p. 636.

2. INTEREST DENIED-DUTY OF THE COURT.-It
is the duty of the Court to carefully scrutinize the
accounts of executors and administrators, and correct
all errors founded in law or fact. And it is the right
of all creditors and distributers of the estate to be
present and if so disposed contest the same; but the
right so to do is expressly restricted to them. *
"The rule is universal in all legal proceedings that
parties not interested have no concern in them and can-
not be allowed to intermeddle." When one seeks to
interpose objections to a settlement, the first duty of
the Court, if the right so to do is denied, is to deter-
mine whether such person has any interest in the sub-
ject matter, and if it is found he has none he must be
declared an intruder and denied the right to partici-
pate.-Garwood vs. Garwood, 29 Cal., p. 519.

3. OBJECTION BY ONE INTERESTED.-Pending a
settlement of the estate by the administrator, one cred-
itor filed objections thereto-among others, on the ground
that a claim allowed to another creditor was barred by
the Statute of Limitations. No fraud, mistake, mis-
apprehension, or deceit was alleged. On the hearing,
the Court refused to permit other evidence, by way of a
more full and particular statement of the account, nor
was there allowed an opportunity to show that the claim
was not so barred, which was sought, but a large por-
tion of the claim was rejected on that ground alone.
(This Court has held that an allowed claim is of the
force and effect of a judgment.-Deck's Estate vs.