Eastwood

This is an action by a real estate agent to recover commissions alleged to have been earned by him in finding a purchaser for certain real property which was a part of the assets of the estate of Mary E. Sebastian, deceased. The defendant, the executrix of the last will and testament of the decedent, is sued in her representative capacity, i. e., she is sued “as” the executrix of the last will and testament of her testatrix. The action is based upon a written contract for commissions entered into by plaintiff and the executrix during the course of the latter’s administration of the estate of her testatrix. The executrix appeals from a judgment in favor of plaintiff.

On November 11, 1918, the superior court, sitting in probate, made an order authorizing the executrix to sell all the real property belonging to the estate of her testatrix. The preliminary steps essential to the making of the order were duly taken under the law then in force. On December 24, 1918, the court, acting under the grant of power contained in section 1559 of the Code of Civil Procedure, made its order authorizing the executrix to employ a real estate agent. On December 31, 1918, plaintiff and the executrix,…