(dissenting).
My reading of the opinion and an examination of the authorities cited therein compel the conclusion that the general terms deal over-broadly with the question involved in this appeal.
Three executors — the two Walkers and Katherine Biesmann —were appointed in the- will and so by the court. Except for $6,000, Mrs. Biesmann was sole beneficiary under the will.' When it was denied probate she made a settlement with other heirs whereby she became owner of all the property.
In addition to the real estate, the cash and personal property of the estate for which the executors were accountable was $688,342. Computed in accord with the statute quoted in the opinion, SDCL 30-25-7, the commission that “must be allowed” comes to $17,293.55. The court allowed the two Walker executors $10,556. Therefore, an executor’s fee of $17,293.55, without any further allowance for supervision of the real estate or for Bruce Walker as special administrator, is within the statute. The trial court found that $10,556 was a reasonable fee for the two Walker executors. Two-thirds of $17,293.55 is $11,529, so the allowance of $10,556 is less than the fractional fee of the three executors.
Further than the finding of the reasonableness of that fee or “commission” as the statute calls it, the court found that Mrs. Biesmann entered an agreement with the two Walkers that she would pay them $10,556 as their compensation for services as such personal representatives of the estate. The opinion declares this agreement is “immaterial” and that the compensation “must be established in accordance with” the statute. The broad *368meaning of these statements must be that an agreement to accept less than the fee allowed by statute, being immaterial, is invalid and void, and that a personal representative of an estate may thereafter claim a larger fee or commission.
While SDCL 30-25-7 fixes the fee of a personal representative, it does not in anyway prohibit him from agreeing to accept a lesser amount. As to this point, the court in In re Hale’s Estate, 231 Iowa 1018, 2 N.W.2d 775, wrote:
“It is well settled that an administrator and the heirs may agree upon the amount of the former’s compensation, where the rights of creditors are not involved.”
Later, confirming this statement, it said in In Matter of Estate of Rorem, 245 Iowa 1125, 66 N.W.2d 292, 47 A.L.R.2d 1089, that:
“Ordinarily the amount so agreed upon will be allowed.”
It may be that an agreement to be paid an amount in excess of the statutory allowance would be “immaterial,” but this is not so of an agreement whereby the amount is less than so fixed. This distinction was recognized in Cagle v. Cagle, 60 Ga.App. 769, 5 S.E.2d 100, where the court referred to an earlier opinion which stated that administrator’s fees were fixed by law and not “by private contract in which he may overreach the estate. This is true, but it is not said conversely that an administrator may not upon a valid consideration agree to accept less than the amount fixed by law.”
That such an agreement is valid is supported by many decisions, among them being: In re Stewart’s Estate, 145 Or. 460, 28 P.2d 642; In re Lane’s Estate, 199 Iowa 520, 202 N.W. 244; Armstrong v. McFarland’s Adm’r, 187 Ky. 185, 218 S.W. 1012; In re Andrus’ Will, 4 Misc.2d 831, 158 N.Y.S.2d 536; Estate of Schinasi, 3 N.Y.2d 22, 163 N.Y.S.2d 644, 143 N.E.2d 369; Washington L. & T. Co. v. Convention of P. E. Church, 54 App.D.C. 14, 293 F. 833; Cf. Fogg v. Quackenbush, 27 Colo.App. 480, 150 P. 726.
In re Balbach’s Estate, 56 S.D. 196, 227 N.W. 886, dops not support the majority opinion as it did not involve an agreement *369but only affirmed an allowance made under our statute. The general quotation from Banc.Prob.Prac.2d § 416, that in some states it is expressly provided by statute that such contracts “for a higher compensation than that allowed by law are void” does not apply for two reasons: the compensation here allowed is lower, not higher than the statute allows, and South Dakota has no such statute declaring agreements void.
The trial court by extensive and detailed findings of fact found appellant Mrs. Biesmann made this agreement and that it was for a reasonable amount. There was evidence to support these findings. SDCL 15-6-52(a) (RCP 52(a) provides: “Findings of fact shall not be set aside unless clearly erroneous.” See In re Estate of Hobelsberger, 1970, 85 S.D. 282, 181 N.W.2d 455.
In an estate where over $150,000 has been paid in attorneys’ fees at appellant’s request (not including this controversy), it is difficult to understand why this litigation continues. I would affirm and bring it to an end.