67 Ark. 522 | Ark. | 1900
(after stating the facts.) The law as declared by the circuit court is correct, and its judgment must be affirmed. This court in McPaxton v. Dickson, 15 Ark. 97, said; “Where a .portion of the heirs and distributees employ an attorney to contest the settlement of the executors, the probate court has no power to direct the payment o? the attorney’s fee by the executor of the re duary fund of the estate; if it be a proper case for contribution by all interested in the estate, the remedy is in chancery only.” We held in Pike v. Thomas, 62 Ark. 223, that the probate court had no jurisdiction over a claim against an estate for services rendered by an attorney employed by an administrator to prosecute a suit on behalf of the estate. Tucker v. Grace, 61 Ark. 410; Bryan v. Craig, 64 Ark. 438—43. A fortiori would it be utterly beyond the power of the probate court, in a proceeding by the heirs before said court to prevent the administrator from subjecting certain lands to pay debts, to order and audit a claim of attorney’s fees for services rendered the heirs in such proceeding. The administrator as a trustee represents all parties interested in the estate, heirs as well as creditors. Probate courts can authorize the employment of counsel by the administrator, in the necessary protection of the estate in his hand, and may allow fees for such services rendered the administrator to protect and preserve the estate, as necessary expenses of administration. But such a thing as allowing or directing fees to be paid out of the estate to attorneys, whether employed by the heirs or “by the court,” in a suit against the administrator, is without authority to support it. Creditors are beneficiaries, as well as heirs. “No allowance will be made for the fees of counsel in litigation between beneficiaries of the estate, or for services rendered to any individual beneficiary.” 11 Am. & Eng. Enc. Law (2 Ed.), 1247; Matter of Marrey, 65 Cal. 287; In re Simons, 65 Conn. 239; Hughes’ Succession, 14 La. Ann. 876; McGregor’s Estate, 131 Penn. St. 359; 2 Woerner’s Adm. § 516. Not only will such fees not be allowed, but the court has no jurisdiction to allow same.
Affirm the judgment.
