After the Departmental opinion was filed in this case,147 Wash. 381, 266 P. 137, we granted a petition for rehearing and the case was heard before the court sitting En Banc.
Respondents have argued strenuously against our construction of the statute, Rem. Comp. Stat. § 1528, covering compensation for executors who have renounced the compensation provided in the will. In this connection the respondents have urged that the Departmental opinion should be reversed, because the construction placed upon the statute was evidently meant to apply only in those cases where an executor has speculated on the outcome or procrastinated and delayed the handling of the estate until he could put himself in a position to obtain a larger fee by the renunciation of the compensation provided for in the will; and that, since in this case there was neither speculation, procrastination or delay, and the services were worth the amount allowed by the trial court, the construction we gave the statute should not apply.
While it is true that in the present case the amount allowed the respondents by the trial court was not in excess of the reasonable value of the services performed, and the record bears no evidence of any untoward actions on the part of the respondents in the handling of the estate with a view to obtaining larger compensation, yet it must be borne in mind that the words in the decision concerning this feature of the matter were not intended to apply to the facts in the instant case or the parties thereto, but merely as an argument for the purpose of showing what the construction contended for by respondents might enable executors to do, and as a reason why the statute should not be given a construction that would under any circumstances make possible a result of that character.
We think the Departmental opinion correctly construed the statute and the judgment herein will be reversed in accordance with that opinion. *Page 696