
    In re JENNINGS' ESTATE. WOODS, Administrator, Respondent, v. WOODS, Appellant.
    (No. 5,802.)
    (Submitted November 20, 1925.
    Decided December 3, 1925.)
    [241 Pac. 655.]
    
      Executors and Administrators — Duties■ — Operating Estate Property for Own Benefit — Estate not Liable for Expenses — • Commissions — Fixing Compensation — Notice to Heirs.
    
    Executors and Administrators — Duties.
    1. An administrator must account for all the personal property of the estate which at any time has come into his possession and his account must be so specific in character as to enable the court, upon his removal, to specify the property which he must turn over to the new and fix the old administrator’s liability to the estate.
    Same — Hearing on Einal Account — Improper Exhibits.
    2. Under the rule that a party cannot use his own pleading as affirmative evidence for himself, an administrator was improperly permitted to introduce as evidence his final account on the hearing of objections thereto.
    Same — Operating Estate Property for Own Benefit — Estate not Liable for Bills Incurred.
    3. For bills incurred by an administrator while operating an estate farm as his own property, the estate was not liable.
    Same — 'Commissions—When Properly Withheld — Discretion.
    4. Whether an administrator is entitled to commissions as provided for by section 10287, Revised Codes of 1921, is dependent upon whether he earned them, by attending to the duties of his trust with fidelity and in accordance with the provisions of the law; hence \v_iJltul neglect and mismanagement of the estate are sufficient to authorize the court in withholding them or such part of them as it may see fit to withhold in the exereise of the discretion lodged in the court in that respect.
    
      4. See 11 R. C. L. 229.
    
      Same — Fixing Compensation — Heirs Entitled to Notice.
    5. Persons interested in an estate are entitled to notice before the court fixes the compensation of the administrator or his attorney’s fees so they may object if they desire to do so; therefore where such fees were not included in the administrator’s final account of the hearing of which the heirs had notice, but were fixed without notice to them, the court committed error. (See, also, syllabus in In re Jennings’ Estate, ante, p. 449.
    Equity, 21 C. J., see. 692, p. 560, n. 92.
    Executors and Administrators, 23 C. J., see. 314, p. 1125, n. 65; 24 C. J., see. 474, p. 55, n. 48; p. 57, n. 55 New; see. 480, p. 61, n. 90; see. 513, p. 90, n. 29; see. 517, p. 91, n. 43; sec. 533, p. 100, n. 40 New; sec. 544, p. 106, n. 25; sec. 613, p. 140, n. 9; sec. 2320, p. 935, n. 86; sec. 2394, p. 974, n. 62; sec. 2422, p. 986, n. 5; see. 2431, p. 996, n. 25; p. 997, n. 27 New; sec. 2432, p. 997, n. 31; p. 998, n. 33; sec. 2439, p. 1001, n. 81, 81 New; sec. 2473, p. 1020, n. 98.
    
      Appeal from, District Court, Sweet Grass County, in the Sixth Judicial District; B. B. Law, Judge of the Ninth District, presiding.
    
    Proceedings on supplemental final account of James G. "Woods, administrator of the estate of Elizabeth Woods Jennings, deceased, to which Harvey L. Woods filed objections. From an order approving and allowing account and awarding administrator’s and attorneys’ fees, objector appeals.
    Reversed and remanded.
    
      Messrs. Davis & Kelly, for Appellant, submitted a brief and argued the cause orally.
    
      Messrs. O’Connor & Miller, for Respondent, submitted a brief; Mr. M. J. O’Connor argued the cause orally.
   MR. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

The issues presented by this appeal may be termed a continuation of those which were before the court in No. 5,768, in the Matter of the Estate of Elizabeth Woods Jennings, Deceased, in which the opinion, hereafter referred to as the first opinion, was promulgated November 12, 1925. (74 Mont. 449, 241 Pac. 648.) Tbe labors of court and counsel would have been simplified and minimized if tbe two appeals had been consolidated.

When tbe district court made its order of March 5, 1925, revoking tbe letters of tbe administrator, James Gr. Woods, it directed him “to file a full and true account of all bis transactions and doings as sucb administrator since tbe date of bis filing of bis last original account and report of bis administration of said estate.” Pursuant thereto Mr. Woods, on March 14, rendered an account and report, purporting to cover his transactions as administrator from August 13, 1924, to and including March 6, 1925. Hearing thereupon was noticed for March 24. In due time Harvey L. Woods, a son and heir at law of the decedent, filed bis objections and exceptions thereto. On April 7 tbe matter came on for bearing; tbe court then examined tbe account and report and beard testimony in support thereof. On April 16 Mr. Woods, former administrator, without notice to anyone, filed what be termed a ‘ ‘ supplemental final account,” in which be asked that two items, one for his own fees amounting to- $890 and tbe other for bis attorneys’ fees in tbe sum of $250, be made a part of bis account and report. This supplemental account was not noticed for bearing.

On May 12 tbe court made an order approving and allowing tbe account. In tbe order tbe administrator’s compensation was fixed at $450 and be was allowed $150 “as attorneys’ fees in addition to tbe $150 previously paid and allowed.” Then followed: “It is further ordered that tbe said James Gr. Woods surrender into tbe possession of bis successor tbe custody and care of all of tbe property of said estate remaining in bis bands, including sucb livestock as be may now have in bis custody, if any, and take from said successor a proper receipt showing sucb delivery.” From this order Harvey L. Woods has appealed.

During tbe entire period covered by tbe report filed March 14, 1925, the administrator, as be bad done before, continued to operate tbe farm as a going concern, and it must be held in this opinion, as it was in the first, that in so doing he was conducting his personal and not the estate’s business.

He is liable for .the rents, issues and profits which the real estate should have yielded during that period of time (see first opinion) ; he is liable for the reasonable annual rentals, with interest, for the entire period of time from October 31, 1920, until March 5, 1925, or until he surrenders possession thereof to his successor.

But his counsel say at one place in their brief that “this report shows a profit resulting to the estate by reason of respondent having operated the same,” and in another place it is asserted that for the entire period the administrator had operated the ranch, “the estate has profited in the amount of $1,480.16,” hence it is argued the heirs must take the “profit” and may not insist upon the administrator’s accounting for the annual rentals with interest. But this cannot be. In the first place, the $1,480.16 is a balance struck as a result of all the administrator’s transactions. The background involves sales of property, with and without authority of court, purchase of property, cost of operation of the farm for a period of four and one-half years, payments of interest, — all without authority; neglect and mismanagement of the estate.

When the administrator, instead of winding up the estate, as he should have done, undertook to carry on the farm as a going concern, thus making the operation his personal business, he was and is bound to render to the heirs at least the reasonable rentals therefor, with interest from the time the rentals should have been paid; if the farm yielded profits in excess of the rentals, the heirs are entitled to the profits also, the trustee is not.

We need not state again the rules governing the administrator’s responsibility with respect to real and personal property. They are set forth sufficiently in the original opinion, with supporting authorities. Nor need we consider any question of election by the heirs as between the value of the use of the property and the actual profits thereof; none such is presented here. We are not advised as to the reasonable rental value of the decedent’s farm; what is said in the first opinion, “It is clear to us that the reasonable rental value of a productive farm valued at $15,000 has not been received in any year,” still seems applicable; but if the administrator did make the farm yield a profit above the rental value in 1920, he will simply have to account for that instead of going into his pocket to pay a loss.

In addition to accounting for the rents, issues and profits which the real estate should have yielded, the administrator must account for all the personal property of the estate which at any time has come into his possession (24 C. J. 935), and his account must be so specific in character that the court may credit him with that for which he should be credited and debit him with that for which he should be debited; that which he cannot account for he must be charged with, and his account must set forth specifically the property still in his hands. Thus, upon his removal, the, court may be able intelligently to specify the property which the old administrator must turn over to the new, as well as to fix the old administrator’s liability to the estate. (24 C. J. 937, 1023.) The first account should show fully the property, — the resources, — of the estate, and its liabilities, if any; it should set forth “all matters necessary to show the condition of its affairs.” (Sec. 10288, Rev. Codes 1921.) The final account of this administrator is far short of the foregoing requirements.

Upon the hearing the so-called final account, designated as Exhibit No. 38, was offered, and over the objection of counsel foru the objecting heir received in evidence. Upon what theory the court permitted the introduction of this document we are not apprised; It is like receiving a complaint as evidence in support of its allegations. A party cannot use his own pleading as affirmative evidence for himself. (Jones on Evidence, sec. 294; Hocking Valley Ry. Co. v. Helber, 91 Ohio, 231, 110 N. E. 481; Green v. Morse, 57 Neb. 391, 73 Am. St. Rep. 518, 77 N. W. 925; Bell v. Throop, 140 Pa. St. 641, 21 Atl. 408.)

Being called upon to prove the correctness of his account, it was incumbent upon the administrator to do so by competent evidence.

In the account the administrator represents that the estate owes James Jennings $1,732.55, Maggie Jennings, $605, two store accounts aggregating $22.84, himself, $30 “for ten days’ haying and threshing at $3 per day,” and $10 for a quarter of beef “furnished to Jennings.” The estate, does not owe any of these amounts; all were incurred by James G. Woods in his personal conduct of the estate’s farm.

We shall not take the time to consider in detail the acts of the administrator in paying out sums of money ostensibly for the estate. What was said in the first opinion applies and need not be repeated except as to the following:

In September, 1924, the administrator paid out $36.45 for fire insurance “on the Jennings estate property, the house and granary, chicken-house, bunkhouse and machine shed.” The propriety of this expenditure is challenged by the objecting heir. It is true that the record does not disclose whether there was any other fire insurance upon the property, or whether in view of all the facts this expenditure was necessary. Upon another hearing this matter may be inquired into, and the court may conclude the course of the administrator in this respect was altogether proper.

On December 8, 1924, the administrator paid the court reporter the sum of $59.85 “for transcript of evidence taken at the hearing on the report and account of James G. Woods as administrator.” The item should have been disallowed. It was not a proper charge against the estate.

The action of the court fixing the administrator’s and attorneys’ fees upon his final account without notice is brought in question.

The Code provides for the compensation of an administrator. He “shall be allowed all necessary expenses in the care, management, and settlement of the estate.” (Sec. 10285, Rev. Codes 1921.) The word “necessary” is the keynote in that sentence. An administrator also' is allowed commissions upon the amount of the estate accounted for by him, under the provisions of section 10287; but these are not payable absolutely and in any event. Commissions are allowed an administrator for his care, trouble and responsibility in the management of the estate (Norris’ Appeal, 71 Pa. 106); they are the reward of faithful stewardship (In re Allard’s Guardianship, 49 Mont. 219, 141 Pac. 661). The statute contemplates that the personal representative of the decedent shall do something more than wear with dignity the title of administrator; he is expected to earn his commissions by attending to the duties of his trust with fidelity and in accordance with the provisions of the law. Consequently, it has been stated that as a general rule the court has discretion to withhold commissions from an administrator who has not given proper attention to the duties of his office. (11 R. C. L. 229; In re Rutledge, 162 N. Y. 31, 47 L. R. A. 721, 56 N. E. 511; Matter of Bushe, 227 N. Y. 85, 7 A. L. R. 1590, 124 N. E. 154; Norris’ Appeal, supra; In re Thompson, 101 Cal. 349, 35 Pac. 991, 36 Pac. 98, 508.)

A mere technical breach of duty which does not result in injury to the estate will not ordinarily justify a court in withholding compensation altogether, but a flagrant violation of the duties of the trust will do so. (In re Allard’s Guardianship, supra.) Willful neglect and mismanagement of an estate is sufficient to authorize the court in withholding the commissions or such part of them as in the exercise of its discretion it sees fit to withhold.

What we say here must not be regarded as intimating an opinion upon our part as to what should be done with respect to the administrator’s compensation upon another hearing. The court, upon the new hearing, being apprised of all the facts and circumstances which have attended the management of this estate, will be enabled to do substantial justice to all concerned.

The foregoing is sufficient to demonstrate that, before the court fixes the compensation of an administrator, persons interested in the estate should have notice so they may object if they desire to do so. (In re Sullivan’s Estate, 36 Wash. 217, 78 Pac. 945.) In authorizing the payment of money to an administrator the court is disbursing the money of the estate in which the heirs are interested. The same rule applies in fixing fees. By the provisions of sections 9786 and 10285, Revised Codes of 1921, the court may fix and allow the compensation of attorneys representing an administrator for services rendered and order that the amount so fixed be set apart out of the funds of the estate, to be paid as a part of the necessary expense of administration. (In re McLure’s Estate, 68 Mont. 556, 220 Pac. 527.) The court has a wide discretion in fixing the fees which should be paid to attorneys for their services in estate matters — dependent upon the character and value of the services — but, of course, this discretion must be employed within the rules prescribed by law.

"Where an administrator in rendering Ms account asks that his fees and those of his attorney be fixed, notice of the hearing of the account is sufficient to comprehend the subjects covered by the account; all will be deemed included in the notice. But in the instant case the court fixed the fees of the administrator and attorneys which were not included in the final account, without any notice to those interested in the estate. This was erroneous.

The court’s order approving the administrator’s so-called final account is disapproved. James G. Woods must be required by the district court to account fully and specifically in such a way as to show the true condition of the affairs of the estate throughout the period of Ms administration. Upon the hearing of that account, all of his acts and doings may be inquired into in accordance with the rules laid down in the first opinion and herein set forth, upon which the court may make appropriate orders as justice may require.

The order of May 12, 1925, is reversed for further proceedings in conformity with this opinion. The appellant shall recover Ms costs.

Reversed and remanded.

Associate Justices Holloway, Galen and Matthews concur.

Mr. Justice Stark, being disqualified, did not hear the argument and takes no part in the foregoing decision.  