cumstances, the proposed executor knowingly accepts the appointment to office, he may not collect more than the sum fixed by the testator. If, however, some unusual acts or duties. were imposed upon the executor while in office, he may be allowed a commission or separate amount apart from that fixed by the decedent. In a Pennsylvania case, the testator directed as follows: "To each of the executors of this my last will and testament, I bequeath the sum of one thousand dollars, as and for compensation for their services as such executors." The estate was of such a size that commissions at 3 per cent would have amounted to nearly $18,000, and the court held that the two executors were entitled to only $1,000 each.2 In a Maryland case it has even been held that a testator may deprive his executor of all compensation for his work. If, however, this were the general rule, few people would be likely to accept an executorship under such terms. Where the compensation fixed by the testator is less than that fixed by statute, California, Louisiana, New York, and one or two other states, allow the executor to take his choice. § 196. Commissions Fixed by Statute In most jurisdictions, executors and administrators are allowed commissions on the value of the assets which pass through their hands during the period of settlement. These commissions apply to all property for which the representative is responsible, and are given in consideration of the risk and trouble undertaken by the representative in performing his duties. Commissions are allowed the representative for paying legacies and debts. Where a debtor is himself the representative, and he faithfully pays such debt into the funds of the estate, he is entitled to one-half the ordinary commission allowed because of the responsibility of handling and disposing of such debt. * Hays's Estate, 183 Pa. St. 296. A representative may waive commissions if he so desires. If he has made any statement concerning such waiver while pending appointment by the court, he may retract it before letters are actually issued to him. No promise made on his part upon the subject of a commission is binding without consideration. If, however, he makes payments to creditors and otherwise pays out money, without deducting any amount afterwards to be awarded to him as a commission, it is treated as a gift of the commission to the estate, and therefore needs no consideration. Amount of Compensation. This particular part of the subject of compensation demands study of the codes or statutes of each state, but in treating of the matter here, it has been the object to set forth the average amount allowed in the majority of the states. The rate of compensation in New York runs about as follows: 5 per cent on amounts up to $2,000 If there is more than one representative, and the estate amounts to more than $100,000, each representative is allowed the full percentage of compensation. If there are more than three representatives, the compensation to which three representatives would be entitled must be divided among the greater number according to the services rendered by the representatives. In general, it may be said that commissions allowed range from 5 to 10 per cent for smaller estates, to from 5 to 1 per cent for larger estates. The statutes or usages in the particular state should be consulted. Forfeiture of Compensation. Compensation or commissions will not be due where the duties of the representative have not been faithfully or carefully performed. Conduct of this sort, however, is cause for removal from office, and therefore no compensation would be due for services of such a character or for services performed after removal. Representatives who are removed or who resign are entitled only to a sum commensurate with the services they have performed which were proper or beneficial to the estate. § 197. Compensation for Counsel As stated in the first part of this chapter, the attorney's fee is a matter of mutual agreement between the attorney and his client. A personal representative must pay his lawyer for services in connection with the estate, but may later ask that he be reimbursed for any reasonable outlay. (See §§ 186, 187.) In some states it is held that an attorney who has performed any services for his client for which the client asked, has a lien on his client's cause of action, which will attach to any verdict or judgment in favor of his client. This lien will not be affected by any settlement betwen the contesting parties whether made before or after judgment, and the court will aid an attorney in enforcing a legal claim of this kind against his client. If a lawyer recovered funds for an estate, he would be entitled to his lien. Any attorney who has an infant as client, will have his charges reviewed by the court in regard to the amount and as to whether they are a reasonable fee for the services which he has performed. REVIEW QUESTIONS 1. Where no compensation for an executor is fixed by statute, what is done? 2. What law regulates the commission paid personal representatives? May a representative pay himself his lawful commissions? If a representative renders extra services, are such services entitled to compensation? How would the amount be determined? 3. May a testator fix the compensation of an executor? How would this be done? May an executor agree with any of the beneficiaries for extra services? If the compensation fixed by a testator were too small, what could the executor do? 4. What is the usual method of fixing compensation for settling an estate? If an executor owed the estate money, would he be entitled to his commission when he paid it? If a representative pays over money and fails to retain his commission, what is the effect? In your state what is the legal commission for settling an estate? If there were three executors, how would commissions be apportioned? If an executor fails in his duty, what effect will it have on his compensation? 5. May an executor employ a lawyer for the estate? What may he do? If a lawyer collects a claim for the estate, will he be entitled to his lien on the amount? CHAPTER XXV ACCOUNTING g 198. Objects of Accounting The word "accounting," in connection with the duties of executors, administrators, guardians, and testamentary trustees, has a twofold sense. It means not only the process of keeping an orderly written record of all the financial transactions concerning the trust property, but more specifically the rendering of an intermediate or a final statement in due form, giving the details and results as shown by such records. The purpose of such statements is: first, to furnish a permanent, condensed record for the information of the court, the legatees, and the creditors of the testator; and, second, to ascertain the amount due from the trustee or representative. The accounts of all trustees should show the amounts received and from what sources; the amounts paid out, to whom and for what purposes; and the difference between these sums which would be the amount for which the trustee would be responsible. § 199. Form of Records There is no arbitrary form prescribed for the books, and the records may be as simple as possible. A single entry record may be sufficient if all cash is passed into the bank account as soon as it is received. There is usually a form provided by the probate court for the inventory and one for the statement on which is based the "accounting" before the court; but the actual records are left to the discretion of the trustee or representative. The inven |