In re Agee's Estate, 4431

CourtSupreme Court of Utah
Citation252 P. 891,69 Utah 130
Docket Number4431
Decision Date03 January 1927

252 P. 891

69 Utah 130


No. 4431

Supreme Court of Utah

January 3, 1927

Appeal from District Court, Second District, Weber County; George S. Barker, Judge.

In the matter of the estate of Elaine R. Agee. Proceeding by Charles R. Hollingsworth to recover compensation for professional services rendered for the estate. From a judgment of dismissal, petitioner appeals.

REVERSED and remanded, with directions.

Carl A. Badger, of Salt Lake City, and L. J. Holther, of Ogden, for appellant.

De Vine, Howell, Stine & Gwilliam, of Ogden, for administrator.



Petitioner, the appellant, was retained by decedent in her lifetime to perform two integral transactions, namely, the recovery of the face value of five accident insurance policies, payable to her as beneficiary, and to recover for her a sum of money wrongfully obtained from her by the United States Fidelity & Guaranty Company, both transactions arising out of the death of her husband.

Such employment was not in any sense an intermittent retainer to render services on diverse matters from time to time, such that the authority given by such employment would lapse upon the death of the employer; but, it was an express commission to accomplish two certain purposes and which contemplated nothing short of a final determination of each thereof by suit and judgment.

Under such circumstances the employment of appellant by the decedent continued and the contracts as made between them survived the death of Mrs. Agee. Wylie v. Coxe, 15 How. (U.S.) 415; 14 L.Ed. 753; Barrett v. Towne, 82 N.E. 698; Price v. Haeberle, 25 Mo.App. 201; 6 Corpus Juris 744.

Especially where, as appears from petition, the administrator, conceding appellant's employment and interest, continued and ratified such employment and obtained special authority from the Court so to do.

As a general proposition, an attorney acting for an administrator may charge such administrator personally for his fee; but such personal liability, is in addition to the ultimate liability of the estate therefor, unless an intention appears on the part of the attorney to look exclusively to either one or the other for his compensation.


That the burden of the fees of an attorney, who through his efforts has enhanced the value of the estate, should be born by the estate, is in theory founded in natural equity. Strong v. Taylor, 82 Ala. 213, 2 So. 760; 6 Corpus Juris 782; Buell v. Kanawha, 201 F. 762; Colley v. Walcott, 187 F. 595; Bray v. Staples, 180 F. 321; Edwards v. Bay State Gas. Co., 172 F. 971; Jefferson Hotel v. Brumbaugh, 168 F. 867; In re Baxter, 154 F. 22; In re Rude, 101 F. 805; Tuttle v. Claflin, 86 F. 964; U.S. v. Boyd, 79 F. 858; Adams v. Kehlor Mllg. Co., 38 F. 281; Ex parte Pitt, 19 F. Cas. No. 11, 228 Merchants' Nat'l Bk. v. Armstrong, 107 Ga. 479, 33 S.E. 472; Lomack Home etc. v. Iowa Mutual etc., 155 Ia. 728, 133 N.W. 725; Bauernschmidt v. Bauernschmidt, 101 Md. 148, 60 A. 437; Wait v. Atchison etc. R. Co., 204 Mo. 491, 103 S.W. 60; In re Creighton, 93 Nebr. 90, 139 N.W. 827; In re Snyder, 190 N.Y. 66, 82 N.E. 742, 14 L.R.A. (N.S.) 1101, 13 Ann. Cas. 441; Quakertown etc. R. Co. v. Guarantors' Liability Co., 206 Pa. 350, 55 A. 1033; Nichols v. Reyburn, 55 Mo.App. 1.


Section 346, Compiled Laws of Utah 1917; In re Ross, 107 N.Y.S. 899; In re Knapp, 85 N.Y. 284; In re Kellogg, 88 N.Y.S. 1033, 72 N.E. 1144; Broadbent v. D. & R. G. Ry. Co., 48 Utah 598, 160 P. 185; Lundy v. Cappuccio, 54 Utah 420; 181 P. 165.


(a) The fund is in the custody of the court.

The fact that the District Court has a fund recovered under its control gives the Court broad, equitable powers in dealing with it, including the power to impress the same with the lien of appellant's attorney fees. Strong v. Taylor, 82 Ala. 213, 215, 2 So. 760.

(b) Attorneys may follow the fund.

Our lien section referred to above expressly states that the fund recovered through an attorney's efforts is subject to his lien therefor in "whatsoever hands they may come."

(c) All parties interested in the fund are before the court.

(d) Allowance of attorney fees out of the estate in probate matters avoids circuity.

(e) Attorneys should not be put to the risk and burden of a suit against an administrator.

(f) Remedy is cumulative. Illinois Central Ry. Co. v. Wills, 104 Tenn. 706, 59 S.W. 1011, Fuller v. Clemmons, 158 Ala. 340, 48 So. 101.


The Constitution of the State of Utah, Article 8, Section 7, creates our Courts and defines their jurisdiction. Under this provision the District Courts are Courts of general jurisdiction and their jurisdiction is not abridged by the nature of the particular proceeding in which it is sitting; but the District Courts always have the same power whatever the proceeding, and that power is exercised in the same manner whether the Court is sitting in a probate matter, a suit to foreclose a mortgage, a criminal case, a contract case, or a case in tort for damages. Weyant v. Utah Savings & Trust Co., 54 Utah 181, 182 P. 189, 9 A. L. R. 1119.


We here call attention to the fact that appellant as well as respondent, must have understood, and proceeded upon theory, that, an executor or administrator, and not the estate or a decedent, is liable to an attorney employed to assist in the administration of the estate, otherwise, he would not have presented a claim against her estate for services rendered to her as executrix of the Will of Robert G. Agee, but would have presented such claim against the estate of Robert G. Agee.

We confidently assert, that no authority can be found, where statutory provisions like those in this State exist, which sustains such a proceeding as this.

While the District Court is a Court of general jurisdiction, in the administration of estates, it is governed entirely by the provisions of the Probate Code and has no power to adjudicate upon claims for services rendered the legal representative in the administration of the estate, nor upon disputed claims, for it has no authority except such as is conferred upon it by Probate Code. Warner's Law of Administration, (Third Edition) page 520; State ex rel. v. District Court, 25 Mont. 33, 63 P. 717; State ex rel. v. District Court, 18 Mont. 481, 46 P. 259; In re Higgin's Estate, 15 Mont. 474, 39 P. 506; Briggs v. Breen, 123 Cal. 657, 56 P. 633; 7 R. C. L. 1032.

The entire subject of the administration of estates, the enforcement of claims against the estate and the management, control and distribution of the estate and the payment of the expenses of such management, control and distribution, is covered by our Probate Code. The Courts as well as all parties interested are bound by its provisions. The question of whether or not the District Court erred depends on whether or not it has proceeded according to the rules of procedure contained in the Probate Code. Let us therefore examine its provisions which are applicable to this controversy. See Section 7645, 7646, 7648, 7649, 7650, 7651, 7653, 7654, 7655, and 7659.

The foregoing sections cover the entire subject of the enforcement of claims against the estate of a deceased person. These claims consist of two classes, viz., unsecured claims and claims secured by mortgage or lien. When a claim of the first class is presented and allowed, it is established for payment and is paid in due course of administration, but if it is rejected by the executor or administrator or the judge the claimant must, within the time limited, bring an action to establish his claim, and if successful, file a transcript of the judgment in the probate proceedings, and the judgment is then paid precisely the same as if the amount had been allowed by the executor or administrator or the judge. There is no other way by which an unsecured claim can be enforced under the plain terms of the statute of this State.

The Oklahoma statute on this subject is identical with ours and it is the established rule in that state that the probate judge cannot allow or order paid, a claim against the estate unless the same has first been allowed by the executor or administrator. Osborne v. Foresythe, 54 Okla. 40, 153 P. 207; In re Barnett's Estate, 52 Okla. 623, 153 P. 653; Miller v. Bradburn's Estate, 106 Okla. 234, 233 P. 736; Garver v. Thoman, 75 Ariz. 38, 135 P. 724; Ellsworth v. Struckmeyer, (Okla.) 232 P. 56; Dent v. Harris & Co., (Tex.) 255 S.W. 221.

A reading of the sections of our statute bearing on this question will show that in probate proceedings, claims must be allowed, first by the executor or administrator and then presented to the judge who may allow or reject the same. If allowed, the claim is established for payment. If rejected the claimant must sue. This applies to all claims that are required to be presented. And allowance or disallowance is by the judge and not by the court. The judge cannot act until the claim has been allowed by the executor or administrator. If rejected it is not presented to the judge. In re Baxter's Estate, (Ariz.) 194 P. 333.

As to the second class, such claims may be presented, allowed and paid, the same as unsecured claims, or the holder may, without presentation and without any other demand upon or notice to the executor or administrator, bring an action to foreclose his mortgage or lien provided all recourse against all other property of the estate is expressly waived. But if the mortgage or any other lien is not presented within the time fixed for the presentation of claims, and the complaint in an action to foreclose the lien does not expressly waive all recourse against other property of the estate, it fails to state a cause...

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6 cases
  • Jones v. State Tax Comm.
    • United States
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    • July 8, 1940 the notice, and any claim not presented is barred forever * * *." (Italics added.) This court held in the case of In re Agee's Estate, 69 Utah 130, 252 P. 891, 895, 50 A. L. R., 641, decided under Sec. [99 Utah 377] 7648, Comp. L. Utah 1917, identical with Sec. 102--9--4, R. S. U. 1933: ......
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