State v. Second Judicial Dist. Court in and for Silver Bow County

• Decision Date: 30 October 1917
• Docket Number: 4103.
• Citation: 168 P. 522,54 Mont. 172
• Parties: STATE ex rel. EISENHAUER v. SECOND JUDICIAL DIST. COURT IN AND FOR SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

168 P. 522

54 Mont. 172

STATE ex rel. EISENHAUER v. SECOND JUDICIAL DIST. COURT IN AND FOR SILVER BOW COUNTY et al.

No. 4103.

Supreme Court of Montana

October 30, 1917

Petition by the State, on the relation of Nellie Eisenhauer, as executrix of the estate of John B. Sattes, deceased, against the Second Judicial District Court in and for Silver Bow County and John V. Dwyer, a Judge thereof, to set aside an order allowing attorney's fees. Order vacated.

Canning & Geagan, of Butte, for relator.

C. B Nolan, of Helena, for respondents.

HOLLOWAY J.

During the course of the administration of the estate of John B Sattes, deceased, on March 20, 1917, a petition was presented to the district court, signed by the executrix and Fred Sattes, the two principal beneficiaries under the will praying that an order be made fixing and allowing the attorney fee to be paid out of the funds of the estate by the executrix to James T. Fitzgerald for professional services rendered and to be rendered by the attorney to the executrix in advance of any payment made by the executrix to the attorney, which amount so fixed and allowed should thereafter be included in the final account and presented for settlement and allowance. On March 28th notice of the discharge of the attorney was filed, and on March 30th a motion was presented to dismiss the petition for the allowance of attorney's fees and to set aside the inventory and appraisement theretofore returned. The motion was supported by the affidavits of the executrix and Fred Sattes, which disclosed the reason assigned by them for their proceedings. The petition and motion were heard together, resulting in an order denying the motion and granting the prayer of the petition. The order, so far as material here, follows:

"It is therefore ordered, adjudged, and decreed, and this does order, adjudge, and decree, that the sum of two thousand five hundred ($2,500.00) dollars be, and the same hereby is, allowed by the court to said Nellie Eisenhauer, executrix as aforesaid, for the said attorney and counsel, James T. Fitzgerald, as and for compensation for the services herein rendered and performed by him for said executrix and estate, as an expense in the care, management, and administration of said estate by said executrix, and as special administratrix thereof."

The purpose of this proceeding is to have the order annulled, and the single question presented is: Did the court in making the order act without, or in excess of, jurisdiction?

A district court sitting in probate has only such jurisdiction as is specially conferred or necessarily implied. Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 P. 334. The order in question is either an adjudication upon a matter properly before the court, or it is merely an extrajudicial opinion by the judge presiding. If it belongs to the first class, it is enforceable by the court, and the executrix can be compelled to pay the entire account out of the funds belonging to the estate, whether she is willing to do so or not. If she cannot be compelled to make such payment, it is only because the court was without authority to make the order. It would be a contradiction of terms to say that a court has jurisdiction to make a particular order but no jurisdiction to enforce it. Whenever jurisdiction is conferred, all the means necessary to carry the same into effect are provided. Rev. Codes, § 6329.

It is settled beyond further controversy in this jurisdiction that the employment and payment of counsel by the executrix are matters of purely personal and private contract between the executrix and the attorney; that the attorney has no claim against the estate for his compensation, and, if the executrix does not voluntarily pay for such services, the attorney must seek redress in an ordinary action at law. State ex rel. Kelly v. District Court, 25 Mont. 33 63 P. 717; First Nat. Bank v. Collins, 17 Mont. 433, 43 P. 499, 52 Am. St. Rep. 695; State ex rel. Cohen v. District Court, 53 Mont. 210, 162 P. 1053. With the contract between the executrix and the attorney the probate court has no concern. It cannot construe or enforce it, and the interests of the estate cannot be jeopardized, whatever...