their neglect they are liable for, as also to creditors for 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 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, 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. 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. excepted. 1633. Day of settlement to be appointed, and must give no- 1634. Final settlement, partition, and distribution may be 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- 2. INTEREST DENIED-DUTY OF THE COURT.-It 3. OBJECTION BY ONE INTERESTED.-Pending a |