In re McLure's Estate
| Decision Date | 01 November 1923 |
| Docket Number | 5222,5223. |
| Citation | 220 P. 527,68 Mont. 556 |
| Parties | IN RE MCLURE'S ESTATE. v. MAURY ET AL. GOW ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied Nov. 21, 1923.
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Petition by H. Lowndes Maury and another, copartners doing business as Maury & Melzner, and others, for allowance of attorneys' fees from the estate of Charles D. McLure, deceased. From an order fixing fees and ordering the former executors to file supplemental account including such fees, and from an order settling the account, Paul A. Gow, administrator c. t. a and another appeal. Affirmed.
Walker & Walker and J. A. Poore, all of Butte, and Russell, Madeen & Clarke, of Missoula, for appellants.
Canning & Geagan, of Butte, for respondents.
For a period of 29 months prior to October 22, 1920, these respondents rendered legal services at the instance and request of William R. McLure and Clara McLure Jones respectively executor and executrix of the last will of Charles D. McLure, deceased, in the administration of the estate, and in conducting actions in court in behalf of the estate. Some changes in the personnel of the law firm rendering the services occurred during the time, but reference is here made to these respondents as though there had not been such change. Upon the date last mentioned the respondents ceased to represent the executor and executrix but they had not received any substantial remuneration for their services. On April 23, 1921, an order was made revoking the letters testamentary of William R. McLure and Clara McLure Jones, and special letters of administration were issued to D. J. O'Connor, and later letters of administration with the will annexed were issued to Paul A. Gow. The first account of the executor and executrix was filed February 24, 1921. In the account no allowance was asked for fees paid to the respondents, nor was the court asked to fix fees for their services. A hearing on this account was not had until February 11, 1922. On January 30, 1922, the respondents filed objections to the account upon the ground that the same did not contain any mention of their services nor ask the court to fix the fees for the same. On the same day they filed a petition asking the court to fix and allow their compensation, and in the petition set forth the value of their services and the amount then due to them. They alleged that the executor and executrix were insolvent and unable to respond in damages; that the only means available to them to obtain compensation for their services was through an allowance made by the court from the funds of the estate. They prayed that a citation issue directing the executor and executrix to appear upon a day certain and show cause why the court should not grant the prayer of their petition. The former executor and executrix presented objections to the respondents' petition, and objections to the account as well as to the petition were also presented by the special administrator and by certain creditors of the estate, among the latter being the St. Louis Union Trust Company. One ground of objection to the petition for allowance of attorneys' fees was that the district court sitting in probate has no jurisdiction to order the former executor and executrix to include in their account any fees for legal services rendered to them by the attorneys in the matter of the estate; that the employment is purely a matter of contractual relation and personal concern between the executor and executrix and the attorneys, in which the estate is not interested unless and until the executor and executrix see fit to claim the same as a credit against the estate,
On February 11, 1922, a hearing was had upon the account, petition, and the several objections, in which the respondents, the former executor and executrix, the special administrator, and the objecting creditors participated. On July 12, 1922, the court made an order fixing the attorneys' fee, and the former executor and executrix were directed to file a supplemental account including the item and an item for money expended by the attorneys, as expenses incidental to the administration of the estate. Pursuant to the order a supplemental account was filed, and under protest the items for attorneys' fees and money expended were included. On August 2d the court reaffirmed and readopted the order of July 12. The supplemental account was settled by the court and the allowance of the amount of the attorneys' fee was again specifically approved on August 19. An appeal was taken from the order of August 2d and from the order settling the account by Paul A. Gow as administrator c. t. a. and the St. Louis Union Trust Company, a creditor of the estate, and a separate appeal was taken by Clara McLure Jones and William R. McLure individually and as former executor and executrix. These appeals were consolidated and considered together. By an opinion promulgated on June 25 last [1] this court reversed the orders solely upon the ground that the trial court was without authority to make them, but later granted a rehearing to the end that further consideration might be given to the amendatory statutes enacted in 1919, and particularly to chapter 45, Laws of 1919.
Although the lower court appears to have made three orders, they all refer generally to the same matter, and for the sake of brevity will be treated as one order, the effect of which was to fix the amount due to the attorneys, compel the executor and executrix to include the amount so fixed in their supplemental report, and to direct that the amount so fixed be paid to the attorneys out of any funds belonging to the estate and available for the payment of the expenses of administration. The order indicates that it was based upon the petition presented by the attorneys, and it will be so treated.
It is elementary that only parties interested in the estate could have any right to object to the report or petition the court for affirmative relief (State ex rel. Shields v. District Court, 24 Mont. 1, 60 P. 489), so that the question arises: Did these attorneys become interested in the estate, as that phrase is understood in probate law, by reason of the fact that they rendered the services mentioned and were not paid therefor? Prior to 1919 the question was not an open one, and to appreciate the force and effect of the statutes under review a reference to certain rules of law in effect at the time of their enactment is necessary. A new Probate Practice Act was enacted in 1877, which provided:
"He [the executor or administrator] shall be allowed all necessary expenses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys for conducting the necessary proceedings or suits in the probate or other courts," etc. Section 251, p. 305, Laws 1877.
The statute was carried forward without change into the Revision of 1879 (section 251, p. 239, Rev. Statutes 1879), and into the compilation of 1887 (section 251, p. 337, Comp. Statutes 1887). In the Codes of 1895 the statute was re-enacted with this modification: The words "or suits in the probate or other courts" were stricken out, and the following were inserted in lieu thereof: "And for conducting actions in courts." Section 2774, C. C. P. 1895. With that amendment the statute became section 7631, Revised Codes 1907, and has continued in effect to the present time except in so far as it was modified by the amendments made in 1919.
Under statutes of like effect which prevail in most of the states it is the general rule that an attorney employed by the personal representative of an estate is the attorney for the personal representative. and not the attorney for the estate (1 Ross, Probate Law and Practice, § 492); that such an office as "attorney for the estate" is unknown to the law (Ogier's Estate, 101 Cal. 381, 35 P. 900 40 Am. St. Rep. 61); that the employment and compensation of the attorney is a matter of private contract between the personal representative and the attorney with which the probate court has no concern (Austin v. Munroe, 47 N.Y. 360); that the attorney does not sustain any relationship whatever to the estate, and cannot assert any claim against the estate for his compensation (In re Sullivan, 36 Wash. 217, 78 P. 945); that the attorney does not have any lien upon the property of the estate ( Waite v. Willis, 42 Or. 288, 70 P. 1034), and is not a person "interested in the estate" (In re Kruger's Estate, 143 Cal. 141, 76 P. 897); that, if the personal representative fails to compensate the attorney for his services, the remedy of the attorney is by an action at law against the personal representative individually ( Brown v. Quinton, 80 Kan. 44, 102 P. 242, 25 L. R. A. [ N. S.] 71, 18 Ann. Cas. 290); that the personal representative may reimburse himself out of the funds of the estate for what he has paid to his attorney, if the services were necessary and the amount paid was reasonable (Munger's Estate, 168 Iowa, 372, 150 N.W. 447, Ann. Cas. 1917B, 213), but the allowance can be made only to the personal representative and not to the attorney (Briggs v. Breen, 123 Cal. 657, 56 P. 633, 886); that prepayment of the fee by the personal representative is a condition precedent to having the claim allowed in his report ( Thacher v. Dunham, 5 Gray (Mass.) 26; Bates, Adm'r, v. Vary, 40 Ala. 421), and that the probate court has no jurisdiction to direct the personal representative to include in his report an allowance for attorney fee (1 Woerner's American Law of Administration, § 152), or to direct payment of such fee (Townshend v. Brooke, 9 Gill [Md.] 90; Hoes v. Halsey, 2 Dem. Sur. [N. Y.] 577). Different phases of this rule have been invoked and...
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