The plaintiff is an attorney at law and succeeded to the business and assets of the firm of Marshall & Oapron, of which firm he was the senior member. The professional services involved in this action were performed by the firm, and the use of the word plaintiff in connection with such services will relate to the firm. The action against the defendant is for services alleged to have been performed for the defendant personally. The defendant denied personal employment, and alleged the plaintiff was employed as attorney for an estate, of which the defendant was administrator, and was paid for all services performed in that behalf. It is not disputed that the defendant was first appointed special administrator and afterwards general administrator of the estate of Jabez J. Piggott, deceased; that the plaintiff took the necessary steps to secure both appointments and continued as counsel for the administrator during the entire administration
The testimony is conflicting as to whether the plaintiff was employed by the defendant in a personal capacity. The plaintiff himself testified that the defendant came to the firm before the decedent, his uncle, died, and informed them that he was an heir, and consulted them because
The defendant testified in effect that there Avas no personal employment of the plaintiff, that he had some general conversation with plaintiff prior to the death of his uncle with reference to the estate, but none with a view of personal employment. The defendant’s testimony is strengthened by the fact that no charge was ever made against him by the plaintiff on the books, and that pending the settlement of the estate the plaintiff Avrote the de fendant as follows: “1-5-01. R. A. Piggot, Bruning, Nebr. Dear Sir: We are in receipt of your favor of this date and herewith inclose you receipt for $310. This includes the amount of the piano and carpet, and we will see that you are protected. Of course, you understand the other attorneys get their pay from their clients, but Ave, repre- • senting the administrator, are paid out of the estate. Very truly yours, Marshall & Capron.”
On the trial of the appeal from the final settlement of the administrator’s accounts, including the charges of plaintiff for attorney’s fees for services performed on behalf of the estate, the plaintiff Avas a Avitness, and testified, with reference to his employment and the services performed on behalf of the estate, that he Avas employed by
It appears that in the various partition proceedings the interest of the defendant in the estate was always correctly stated and never questioned. It is also in evidence that the plaintiff charged the estate $400 and expenses for services performed in the matter of procuring the appointment of the administrator; $500 in the partition proceedings in Kansas; $300 for services in the partition proceedings in the federal court, and at least $300 for services in the partition proceedings in Thayer county, besides
Complaint is made, however, that the court permitted the testimony of the plaintiff taken at the trial in the district court upon appeal from the settlement of the administrator’s accounts. This evidence, however, was properly admitted as containing the declarations of the plaintiff against his own interest in the present litigation. It is urged, however, that no sufficient foundation was laid for the introduction of the evidence. We think the bill of exceptions containing the testimony was sufficiently identified. The plaintiff himself was asked: “Q. You testified, did you not, in the district court for Thayer county in the trial of a suit over the question of your attorney’s fees as against the estate of Jabez J. Piggott? A. Yes, sir. Q. I will offer you this bill of exceptions, Mr. Marshall, and ask you to state whose signature appears upon said bill of exceptions in signing the same as attorney for Marshall & Oapron and for the administrator? A. Well, that is my handwriting. Q. This bill of exceptions contains your testimony had in the court below, does it? A. I suppose it does, if it contains the whole record it is there. Q. It did? A. I think so.” The objection to reading the testimony of plaintiff is couched in the following language: “To which plaintiff objects as incompetent, immaterial, and improper, not bearing upon the issue in this case, and not being proper for the purpose for which it is offered as impeaching testimony.” We think this objection was properly overruled and the testimony rightfully received.
Complaint is also made that the court erred in receiving in evidence plaintiff’s statement of his account against the estate. As we view it, the evidence had a direct bearing upon the issue and was properly received. Instruction No. 8, given by the court, is as follows: “The plaintiff is conceded to have been of counsel for the administrator
The court admitted in evidence a letter from the plaintiff to the defendant, containing a statement of an account of expenses apparently incurred while the appeal in the probate matter was pending in the supreme court. In this action the plaintiff makes no claim for such items of expense, but he testified to having sent this statement to the defendant and receiving no response, and because of the failure to respond this action was brought. We think the evidence was properly admitted, as it tends to show that the demand for fees earned as personal counsel for the defendant was an afterthought, and perhaps by way of retaliation for the failure of ¡lie defendant to respond personally for the expense of counsel in the probate matter. It is a well-settled rule that every trust should bear the expense of its administration, and it is evident that the defendant was personally under no obligation to pay any part of the expense of the counsel in representing the estate.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.