Murphy v. Harris

48 So. 232 | Miss. | 1908

Fletcher, J.,

delivered the opinion of the court.

The true view of this case is to be gathered from a consideration of the case of Clopton v. Gholson, 53 Miss. 466, and statutes enacted subsequent to this decision. In the Clopton case, which presents a careful review of the whole subject of attorney’s fees incurred at the instance of the administrator and on behalf of the estate, it is stated that an administrator is ordinarily without power to impose upon the estate the primary obligation to pay such fees. That case holds that, when an attorney has been employed by a solvent resident administrator, the attorney must in the first instance look to the administrator personally for payment, and, if the claim is not voluntarily paid,, must establish its validity by appropriate action against the administrator. Thereupon, after such voluntary payment or recovery as the case may be, the representative of the estate may apply to the court and receive credit for the payment. It is further shown that in certain cases, such as the insolvency or non-residence of the administrator, the attorney may look to the estate in the first instance upon the principle of subrogation; but in order to do so he assumes the burden of showing that payment cannot be enforced against the administrator personally.. This being the attitude of the law as established by this decision the legislature, in 1882, -enacted a statute which now appears as-Code 1906, § 2131. This statute provides: “In annual and final settlements, the executor or administrator shall be entitled to credit for such reasonable sums as he may have paid for the-services of an attorney in the management or in behalf of the estate if the court be of the opinion that the services were proper- and rendered in good faith.”

It is evident that this statute was intended to afford a ready method by which an administrator could, with the approval of the chancery court, employ and pay an attorney for services rendered on behalf of the estate without the necessity of resorting, to a suit against the administrator to establish his claim. But it is clear that this statute has no reference to a claim contested by the administrator and which the attorney seeks to enforce over the administrator’s protest. This statute has no effect to change or modify the rule laid down in the Clopton case in a case like this, where the administrator denies the contract and disputes the justice of the claim. When that state of case arises-resort must be had to the general rule governing matters of this kind. Now it is perfectly obvious that, in the light of the holding in the Clopton case, appellees cannot enforce their claim against tbe estate through the medium of an ex parte petition presented and heard in vacation. This is true entirely independently of the important fact that the petition as first presented was heard without any sort of notice to the administratrix. Nor the last-mentioned reason alone the first order would be void. But thd infirmity lies deeper than the mere failure to notify the administratrix. No such demand as this can be enforced otherwise than by a suit, either at law or in equity, instituted and conducted precisely as other causes are conducted. This is not such a matter in connection with the administration of an estate which the chancellor may hear and determine in vacation under Code 1906, § 507. Bor this reason the original proceeding was misconceived, and it was not helped by the fact' that the administratrix filed a petition to. have the former void order set aside, even though notice of the pendency of this latter petition was given and affidavits read on the hearing.' Causes in equity cannot be heard on ex parte affidavits. The trouble iss that appellees proceeded upon the erroneous theory that the relief they sought could be granted as an incident to and in connection with the administration of the estate.

The decrees appealed from are reversed, the order allowing the attorney’s fee is vacated, and the original petition dismissed, without prejudice to the right of appellees to institute such proper action as they may be advised.

Reversed.