| La. | May 15, 1840
delivered the opinion of the court.
The executors of the estate of Eliza Baldwin, deceased, having presented their account for homologation, one of them, Thomas H. Maddox, who is also tutor to the heir of the testatrix, opposed an item in the account, in which a charge is made of the sum of seven thousand five hundred dollars, as a fee for professional services rendered by Henry Carleton, Esq., his co-executor. This fee was reduced by the judgment of the Court of Probates, and both parties appealed.
The grounds of opposition are, that this charge was allowed and paid, by the opponent, in error, and through the misrepresentation of his co-executor, who assured him that it was legal and just.. That he has since been undeceived, and is informed and believes that an executor can have no claim against the estate, for professional services.
The latter part of this opposition presents the only question which we are called upon to solve.
In the case of Scott’s Executrix vs. Gorton’s Executor, 14 Louisiana Reports, 115, this court held, that an executor is prohibited from purchasing property of the estate which he administers. He cannot be buyer and seller. The law will not permit him to put himself in a situation in which his duty and interest must necessarily be at variance. In such a sale, it is his duty so to act that the property sold should kring the highest price. His interest is to have it sold for the lowest. The law, therefore, strikes the sale with nullity, The reason is the same if the executor sells to the estate a Part °f his own property, as supplies necessary to the use of the plantation belonging to the estate. In such a case his interest and his duty are equally in opposition. It is his duty so to act that the supplies may be furnished to the estate on the lowest terms. It is his interest that they should be sold at the highest price. There can, therefore, be no difference between the purchase by an executor; of cotton belonging to an estate administered by him, and the sale of the necessary supplies, which is his property, for the use of the estate.
In vain would it be said that the law would not strike with nullity the sale of cotton, if the highest price was given, or that of the supplies, if the lowest was taken: for the Code says, “ when, to prevent frauds, the law declares certain acts void, its provisions are not to be dispensed with, on the ground that the particular act in question has been proved not to be fraudulent or contrary to the public good.” Louisiana Code, article 19. The prohibition as to the contract of sale extends to that of lease; indeed, to every other species of contract: for no executor or any other person can contract with himself. Beall vs. M‘Kernion, 6 Louisiana Reports, 437. If he could, his interest would be at variance with his duty.
In the present case, it was the interest of the estate, that the best attorney should be selected and employed on the best terms. It was the duty of the executor to employ such. But it was his interest in this case that he should, be employed at all events; and as his conduct has shown, on the very highest terms. In our opinion he succumbed to the temptation. The charge was reduced by the judge of probates,
It was admitted in argument, that there was not a single suit brought for or against the estate. It moreover appears, that all the professional services rendered, were confined to obtaining the ordinary orders of court, for the probate of the will; appointing appraisers and taking the inventory, for the sale of the personal property in this city, which consisted chiefly of the furniture of the house in which the testatrix died ; and finally, presenting a petition for the homologation of the executor’s account.
The court ought not to receive testimony of the value of professional services like those. It should pass upon them as an expert. As the services to be thus compensated are rendered under the eye of the court, it should fix the value of them on its own responsibility. We so held in the case of Dorsey vs. His Creditors, 5 Martin, N. S., 399.
In England, it has been held that an executor, who is also a professional man, and renders legal services to the estate he administers, is not entitled to any separate compensation. 1 Chitty’s General Practice, 553. 2 idem., Appendix, 109.
The defendant’s counsel contended that the Probate Court was without jurisdiction in this case ; it being an attempt to recover money from him in his individual capacity. We think there is nothing in the objection. When an executor receives money of the estate from his co-executor, or applies it improperly to his own use, it is in contemplation of law still money of the estate in his hands, as executor, and he is accountable in the Court of Probates therefor, in the same manner as'if it had never been so applied.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed ; and proceeding to give such judgment as should have been rendered in the court below, it is ordered and decreed, that the account or tableau of the executors be amended, by striking therefrom the item or charge of seven