IN RE: RULE'S ESTATE. (1943)

Appellants as executors of the last will of decedent Rule appeal from an order of the probate court determining that respondent is entitled to a commission on three sales of real and personal property of the estate and directing its payment.

The property of the estate which was sold in the probate proceeding was a cattle ranch, and animals, equipment and other personal property located on the ranch. The claim for the commissions allowed by the court is grounded on the following facts: On January 16, 1942, Mr. Alex McCluskey acting for respondent wrote to Mr. Young, one of the executors' attorneys, asking if the Rule ranch was for sale. Through correspondence with Young extending from January to August, 1942, McCluskey was furnished with a prospectus of the ranch and an inventory of its stock and equipment. During all of his negotiations McCluskey dealt exclusively with Young and never at any time with either of the executors. McCluskey interested Willig, the purchaser at all three sales, in the property and aided him in obtaining financial assistance to purchase it. Ultimately, however, Willig filed his bids with the executors directly, and on September 2, 1942, McCluskey wrote to Young asserting a claim to a commission on any sale by the estate to Willig. On September 5, 1942, Young replied that as Willig's bid “came directly from the purchaser and not through any broker * * * as the attorney for the estate there is nothing that I can do concerning your commission.” In fairness to Young it seems proper to say that in none of his correspondence with Young in evidence had McCluskey at any time prior to his letter of September 2 suggested that he would expect a commission from the estate in the event of his producing a purchaser.

Thereafter, and on September 12, 1942, the executors filed two returns of sale and petitions for confirmation to Willig as bidder, one of the real property and the other of certain personal property.

On September 22, 1942, one Brownscombe, an attorney–at–law, wrote Young a letter stating that McCluskey “has one or more prospective purchasers for the Rule ranch and personal property. I have advised him that for his protection he should have a formal listing from the executor before making a bid in court. Accordingly I enclose herewith a form of contract to be signed by the executor.” The enclosed form was signed by the executor under date of September 23, 1942 and reads: “This will authorize you to procure a purchaser for the real and personal property of the estate of Charles H. S. Rule, deceased, a petition for the confirmation of the sale of which has been heretofore filed in the Superior Court of Sonoma County. A commission will be paid you out of the proceeds of a sale to any purchaser secured by you in an amount to be fixed and allowed by the court upon confirmation of the sale.”

No new bidder was produced on the return day and the sales of the real and personal property to Willig were confirmed.

A great part of the argument of counsel on this appeal has been directed to the question of the proper construction of the authorization of September 23 as to whether or not it is ambiguous so as to permit Brownscombe's letter of transmittal to be looked to in aid of its interpretation. We do not find it necessary to follow counsel into this field because we are convinced that, as also urged by appellants, under the express language of sec. 760, Prob.Code, the executors were without power to bind the estate to the payment of any commission on a sale to a purchaser whose bid had already been filed and returned to the court for confirmation. That section reads: “The executor or administrator may enter into a written contract with any bona fide agent to secure a purchaser for any real or personal property of the estate, which contract shall provide for the payment to such agent out of the proceeds of a sale to any purchaser secured by him of a commission, the amount of which must be fixed and allowed by the court upon confirmation of the sale; and when said sale is confirmed to such purchaser, such contract shall be binding and valid as against the estate for the amount so allowed by the court. By the execution of any such contract no personal liability shall attach to the executor or administrator, and no liability of any kind shall be incurred by the estate unless an actual sale is made and confirmed by the court.”

In construing this section it is to be borne in mind that it is based upon, and took the place of, sec. 1559, Code Civ.Proc., first adopted in 1909, St.1902, p. 251; that prior to the adoption of sec. 1559, Code Civ.Proc., an executor or administrator had no power to bind the estate by any contract to pay a commission for the sale of property real or personal belonging to the estate (Danielwitz v. Sheppard, 62 Cal. 339; Hickman–Coleman Co. v. Leggett, 10 Cal.App. 29, 100 P. 1072; In re Estate of Shaw, 85 Cal.App. 518, 260 P. 351; In re Estate of Mitchell, 20 Cal.2d 48, 51, 123 P.2d 503); and that the full measure of an executor's powers to bind the estate in this regard must therefore be found in the language of sec. 760, Prob. Code, above quoted, the provisions of sec. 760 entering into and becoming a part of any such contract. In re Estate of Mitchell, supra, 20 Cal.2d at page 52, 123 P.2d 503; Wilson v. Fleming, 106 Cal.App. 542, 289 P. 658.

The language of sec. 760 is clearly prospective and not retrospective. It authorizes an executor or administrator to “enter into a written contract with any bona fide agent to secure a purchaser for any real or personal property of the estate.” It just as clearly does not authorize an executor or administrator to enter into a contract to pay a commission for having secured a purchaser whose bid has already been made. The estate was not liable to pay any commission to respondent for securing Willig's bids before the execution of the authorization of September 23, and the executors had no authority or power to decrease the assets of the estate by agreeing on September 23 to pay respondent a commission for something already done and as to which no legal liability upon the estate then existed. “When the powers and duties of the administrator are fixed by statute there is no inherent right to assume or exercise any power not conferred, or to depart from the procedure outlined.” Perry v. Superior Court, 29 Cal.App.2d 114, 116, 84 P.2d 250, 252.

Such cases as Carrington v. Smithers, 26 Cal.App. 460, 147 P. 225, being between private parties and construing sec. 1624, Civ.Code, which requires the contract “or some note or memorandum thereof” to be in writing, cannot be looked to in an effort to enlarge the powers of an executor under sec. 760, Prob.Code. Sec. 760 is a grant of power to a statutory fiduciary, not a limitation on the rights of private persons as is the statute of frauds, and it requires the contract to be in writing and cannot be satisfied by some note or memorandum thereof executed after the services have been fully performed.

The third sale to Willig was made on a return filed on November 9, 1942. The contract of September 23 cannot support the allowance of the commission on that sale because by its express terms it was limited to the property “a petition for the confirmation of the sale of which has been heretofore filed.”

The order appealed from is reversed.

DOOLING, Justice pro tem.

NOURSE, P. J., and SPENCE, J., concur.