124 Iowa 485 | Iowa | 1904
Samuel Sawyer died in Audubon county, Iowa, in 1896, leaving a will, wbicb was filed for probate in said county, and contested by his wife and children, or by some of them. Pending this contest, Elwin Sawyer, claiming that Samuel Sawyer was a resident of Jones county, Iowa, at tbe time of bis death, obtained an appointment in tbe latter county as temporary administrator of tbe estate. •Later, and before tbe trial upon tbe probate of the will, said Elwin Sawyer obtained another appointment as temporary administrator in Audubon county. In April, 1897, tbe will was adjudged invalid and denied probate by tbe district court of Audubon county, and immediately thereafter Elwin Sawyer was appointed general administrator of tbe estate by tbe district court of Jones county. Soon after this appointment Elwin Sawyer made, report of bis trust as temporary administrator to tbe district court of Audubon county. Tbe report was disapproved, and tbe court, ignoring tbe appointment in Jones county, appointed John A. Nash as general administrator. These conflicting claims of jurisdiction resulted in' legal proceedings to determine wbicb of tbe persons appointed general administrator was entitled to' receive the assets and settle the estate. Nash brought an action upon the bond given by Elwin Sawyer as temporary
We cannot admit that such order had the effect of an
There is also a still more persuasive reason in the present case for denying the allowance of attorney’s fees the conclusiveness of an adjudication. It is to be found in the
It will be conceded that he was not required to do the professional work himself, and could rightfully employ counsel ; but he could not properly charge the estate any more for expenses’ thus incurred than he would be entitled to charge for the same extraordinary service if performed by himself. Admitting the importance of the litigation, and that the collection of the claim from Sawyer was pertinaciously resisted to its final conclusion in this court, there would still seem to be no good reason why two additional lawyers should be engaged, each to be paid what would ordinarily be considered a liberal fee for conducting an estate of that magnitude to final settlement, even through litigation, and a like amount be reserved for the administrator himself. We will not prolong the opinion by rehearsing the various items of service performed by counsel. The rights of the administrator were efficiently represented, and to the extent the service was reasonably necessary the expense should be returned to the administrator from the estate. We are united in the opinion that the allowance made by the court below is more than the •estate should bear. We do not overlook the fact urged upon ■our attention that the compensation to counsel was in a measure contingent upon their success, and waiving the grave .■doubt whether an administrator has authority to stake the es
Counsel, in this connection, quote the scriptural in-j unction, “ Thou shalt not muzzle the mouth of the ox that treadeth out corn.” We concede the force and authority of the command, but after due consideration we are disposed to the view that even Moses would not carry liberality to the ■ox to the point where nothing but the husk is left to the -owner of the corn.
It follows, therefore, from the conclusions we have announced, that with the modifications suggested reducing-the credits claimed by the administrator for his own services to $150, for payment to Hosier to $250, and for payment to Delano to $230, the judgment of the- district court be affirmed. The costs of the appeal will be taxed to the appellee.— Modified and affirmed.