
    (109 Tex. 552)
    JONES v. GILLIAM et al.
    (No. 3174.)
    (Supreme Court of Texas.
    June 4, 1919.)
    1. EXECUTORS AND ADMINISTRATORS <&wkey;514— Final Accounting — Approval op Annual Exhibit.
    Approval of statutory administrator’s annual exhibit does not prevent, on the final settlement, re-examination of the charges made by him.
    2. Executors and Administrators <&wkey;97— Authority op Probate Court to Sanction Employment op Broker.
    In necessary cases the probate court may, under the statute, sanction an administrator’s employment of a broker to make a sale advantageous to the estate, and allow a reasonable broker’s commission as a legitimate expense of administration, although the power should be sparingly exercised.
    3. Executors and Administrators <&wkey;97— Authority op Probate Court to Sanction Employment op Broker.
    The probate court, not the administrator, must be the judge as to the necessity of employing a broker to make a sale for the estate, as well as of the amount of the broker’s compensation ; the administrator being but an agency of the court.
    4. Executors and Administrators <&wkey;97— Independent Executor — Employing Agents.
    An independent executor has the same authority as the probate court possesses in ordinary administrations to employ agents to sell the lands of the estate and to make the estate liable for reasonable commissions earned under such employment.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Application by Will P. Jones, administrator, for final settlement and discharge, contested by Alma Gilliam and others. The county court’s refusal to allow certain items was affirmed by the district court, and, on appeal, by the Court of Civil Appeals (199 S. W. 694), and the administrator brings error.
    Affirmed.
    Fires & Diggs, of Childress, for plaintiff in error.
    M. J. Hathaway, of Childress, for defendants in error.
   PHILLIPS, C. J.

The question presented by the case is as to the authority of an ordinary administrator to bind the estate, without any order of the Probate Court, to pay commissions to brokers for the sale of the estate’s property.

Here, in the administration of the estate of P. S. and Alma Roberts of which Will P. Jones was the statutory administrator, the court ordered the sale of certain lands. Jones, as administrator, made a contract with Ramsey & Gillespie, real estate brokers, whereby he agreed to pay them a commission of five per cent, of the selling price upon their procuring a purchaser on the terms authorized. In connection with the Vernon Realty Company, Ramsey & Gillespie closed a contract for the sale with Ike M. Smith for the price of $19,000.00, upon which the five per cent, commission would have been $950.00. The sale was reported to the court and confirmed. On account of Smith’s death, however, the sale was not made. Later, another real estate broker, Owensby, advised Jones that he could effect a sale to W. T. Coble and would do so if he were paid a commission. Jones, in reply, told him of his. previous contract with the other brokers, and, in effect, agreed that he should have a commission on the sale if he could adjust the commission with them. Such an adjustment was reached, whereby Owensby was to receive $100.00, Ramsey & Gillespie, $375.00 and Vernon Realty Company, $375.00, a total of $850.00. The sale to Coble for $19,000.00 was made. It was confirmed by the court. The commissions in the amounts stated were paid by Jones to the respective brokers. The expenditure was reported by him in his annual exhibit which was approved by the court.

The present contest arises upon the administrator’s final account. On its presentation, the heirs of the estate challenged the charges constituted by the commissions, and the right of the administrator to receive for himself five per cent, on these amounts. Their contest was sustained as to the $750.00 paid Ramsey & Gillespie and Vernon Realty Company and as to the administrator’s commission on that disbursement. On the administrator’s appeal to the District Court, a like judgment was rendered, which was affirmed by the Court of Civil Appeals.

In the order of the court for the sale of the lands, no authority was given the administrator to employ brokers for the purpose. Nor was the payment of such commissions authorized in the court’s action on the report of either sale. The employment of the brokers and the payment of their commissions were solely the acts of the administrator upon his own responsibility.

Since the approval of the administrator’s annual exhibit did not prevent on the final settlement re-examination of the charges (Richardson v. Kennedy, 74 Tex. 507, 12 S. W. 219; McShan v. Lewis, 83 Tex. Civ. App. 253, 76 S. W. 616), the establishment of the commissions against the estate depends upon whether, under the circumstances, they are to be regarded as necessary and reasonable expenses of ádministration.

In necessary cases, we do not doubt the power of the Probate Court under the statute to sanction an administrator’s employment of a broker for the purpose of effecting a ■ sale advantageous to the estate, and therein to allow a reasonable broker’s commission as a legitimate expense of administration. While such authority should be sparingly and providently exercised, it cannot be said that under no conditions would the court possess it. In some instances its exercise might be necessary and prove of distinct benefit to the estate. But in all eases the Probate Court must be the judge as to the necessity for the estate’s employment of a broker for the purpose, as well as of the amount of his compensation. These are not matters which the administrator may determine for himself. The court administers the estate, not the administrator. The administrator is but an agency of the court through which its powers are exercised.

Here, as already said, there was no authorization by the court for the employment of the brokers. There was accordingly no determination beforehand by the court that the employment was necessary. The administrator, acting independently, contracted for the employment. His action was not conclusive upon the estate. The question as to the necessity for the employment still remained within the province of the court to determine on the final settlement. In reaching the same judgment as the Probate Court, the District Court, on the appeal, found as a fact that the expenditure was unnecessary and that it did not appear but that the administrator could have effected the sale himself. The administrator was allowed, for himself, the statutory commission on the amount realized from the sale. In the state of the record there is no warrant for a revision here of the court’s judgment in the matter. It cannot be said as a matter of law that the employment was necessary.

Cases, such as Armstrong v. O’Brien, 83 Tex. 635, 19 S. W. 268, holding that an independent executor may employ agents to sell the lands of the estate and the estate thereby becomes liable for a reasonable commission earned under such employment, do not control the question here. An independent executor has the same authority in that regard that the Probate Court possesses in ordinary administrations. Here, the Probate Court has, in effect, declined to exercise the authority because of the want or any necessity for its exertion.

The judgments of the District Court and Court of Civil Appeals are affirmed. 
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