234 N.W. 923 | S.D. | 1931
After the death of Christoffer Peterson, his brother, Osmond Peterson, who now appears as administrator of his estate and as appellant herein, filed a petition for letters of administration on the estate on behalf of himself and his brothers and sisters. 'Curtis Peterson, the illegitimate son of Christoffer P'eterson, also' petitioned for letters of administration. An agreement was made between Curtis Peterson and Mark W. Sheafe, Jr.,
In this final account Ustrud claimed allowance for a substantial amount paid- to- Sheafe- as attorney’s fees. The new administrator, Osmond- Peterson, objected to- those items,’ on the grounds, among others, that Sheafe at all times appeared! in said matter pursuant to employment by -Curtis Peterson on a contingent basis and that Sheafe was entitled to no compensation^ for his services other than upon the terms of his contract with Curtis Peterson. The county court overruled these objections and allowed the attorney’s fees. On appeal, the circuit court affirmed the order of the county -court. Prom the judgment of affirmance and from the order -denying a new trial this appeal is taken.
The agreement between Sheafe and Curtis Peterson was in force throughout the entire time that (Sheafe was rendering service
Section 3363, R. C. 1919, is in part as follows:
“He [the executor or administrator] shall be allowed all necessary expenses in the care, management and settlement of the estate.”
In Besancon v. Wegner, 16 N. D. 240, 112 N W. 965, it was held that an administratrix was entitled to- reimbursement out of the assets of the estate for all reasonable expenses of administration thereof, including reasonable attorney’s fees for legal services necessarily rendered at her request. See also McGowan v. Milner, 195 Ala. 44, 70 So. 175; First Nat. Bank v. Watters, 201 Ala. 670, 70 So. 242, 244; In re Coleman, 106 S. C. 534, 91 S. E. 861; 24 C. J. 48, 97, 100; In re Springer’s Estate, 79 Mont. 256; 255 P. 1058; Estate of Byrne, 122 Cal. 260, 54 P. 957, 1015; 11 Cal. Jur. 1179.
Was there any reasonable necessity for Ustrud employing Sheafe? Curtis Peterson had employed Sheafe to do everything for which Ustrud required counsel. Apparently Curtis Peterson, if legitimated, was the sole heir. Of course, if an administrator is to be bound by the acts of his counsel, he should ■be permitted to select his own counsel. This, however, is not a case of an administrator employing one attorney and an heir at law employing another. Here there is the same legal ability, the same service, because it is the same attorney. Had Sheafe proven the legitimation of Curtis Peterson andl completed the probate of the estate, he would have been entitled to from 25 to’ 40 per cent of the estate under his contract. Would Ustrud, knowing this, have been entitled to pay him in addition thereto $750 as a fee for a partial probate? Not if Ustrud knew it. But Ustrud testified that both at the time when, at the request of Curtis Peterson,