Jean Pierre Ricaud died April 1, 1877, in San Francisco, a resident thereof, and leaving estate therein.

He left a last will and testament, dated March 26, 1877, in which Francois Larroche and Leon Auradou were named as executors. Upon petition filed by them on April 6, 1877, the will was admitted to probate, and they were appointed executors thereof on April 26, 1877, and letters testamentary were issued to them on April 28, 1877.

A part of the estate consisted of a saloon, which the decedent bequeathed to his brother, Michael Ricaud.

On May 2,1877, the executors, at the request of this legatee, filed a petition praying for an order of sale of this saloon, on the ground that its chief value consisted in its goodwill, and that unless it could be kept open it would depreciate in value and become worthless, and that its stock of wines and liquors was diminishing by daily sales, and that they did not feel authorized to expend the money of the estate in replenishing it. An order of sale was accordingly made on said day, and the saloon was thereafter sold, with the assent of the legatee, for $2,000, and the sale confirmed by the court.

On August 30, 1878, the executors filed their first account, from which it appeared that the saloon had been sold under the order of court for $2,000, and the proceeds paid to the legatee by the executors.

On September 13, 1878, Maria Ricaud, the widow of the decedent, filed exceptions to this account, and contested this payment to the legatee, on the ground that the same was unauthorized and illegal, but the question was reserved by the court for future consideration, and the account, with the exception of this item, settled.

On August 13, 1883, the executors filed their second account, to which exception was again taken by the widow, on the same ground.

The contestant also excepted to the amount claimed by the executors as commissions, the facts in relation to which matter are as follows: There was included in the inventory and appraisement filed in the matter of the estate certain real property valued at $7,500, and commissions were claimed on this amount as part of the estate accounted for.

From the account and report of the executors, it appeared that a suit in ejectment had been commenced against the decedent for this property in his lifetime, and that after trial and appeal to the supreme court, subsequently to the death of the testator, the litigation terminated in a final judgment against the estate, and the property was surrendered to the successful parties.

The account was settled in accordance with the principles laid down in the following opinion: