| Ark. | Mar 28, 1896
(after stating the facts). This court has repeatedly held that an administrator has no power to bind the estate he represents by his individual contracts. The last announcement upon the subject was in an opinion delivered by Judge Riddick,.at the present term, in Tucker v. Grace, 61 Ark. 410" date_filed="1895-12-21" court="Ark." case_name="Tucker v. Grace">61 Ark. 410, where he said: “An attorney employed by the administrator of an estate has no claim against the estate, although his services may have inured to the benefit of the estate. He must look for compensation to the administrator who employed him.” It was there also said to be the “proper practice, where the administrator refuses to pay for such services, for the attorney to bring suit against him individually,' and not in his representative capacity.” Tucker v. Grace, 61 Ark. 410" date_filed="1895-12-21" court="Ark." case_name="Tucker v. Grace">61 Ark. 410, and authorities there cited.
In Turners. Tapscott, 30 Ark. 312" date_filed="1875-11-15" court="Ark." case_name="Turner v. Tapscott">30 Ark. 312, the learned judge, in drawing the distinction “between contracts for services which should be charged against an estate as costs of administration and such as render the administrator liable,” held that the fees of an attorney who, under contract with the administrator, rendered services beneficial to the estate, were a proper charge against the estate; for, said Judge Walker, “if fees, under such circumstances, are to be held as a personal charge upon the administrator, no counsel would be employed, and the estate would be wasted.” In Yarborough v. Ward, 34 Ark. 208, Judge Eakin commenting upon the language of the judge in Turner v. Tapscott, supra, said : “The court sanctions by implication the practice of presenting the claim to the probate court, not for allowance and classification, but for the purpose of obtaining an order on the administrator to pay the same as expenses of administration, leaving only the surplus of assets to go to the claims properly allowed against the estate.” Continuing, says Judge Bakin: “It is certainly the duty of the administrator to pay such claims, and, if he does so, he will be allowed a credit on settlement. Should he refuse, it is certainly within the scope of the general powers of the probate court, in its control over the conduct of the administrator, to order him to do so upon proper application in the case, and to enforce its order. The remedy of the party may in this case, as in many others, be cumulative.” It was unnecessary in either of the above cases for the court to approve, either expressly or by implication, the practice for creditors of the administrator to come into the probate court to establish their claims against him. The point was not before the court in either case. We cannot agree with the learned judge that the rule as above announced in Yarborough v. Ward is a wholesome one. Whatever merit of expedience or convenience such a practice may seem to possess, it is not sanctioned by the weight of authority, and confers a jurisdiction not given by our constitution or statutes. If the administrator is individually liable, the only authorized procedure is for those who have contracted with him to go into the proper forum at law or equity, as the nature of their claim and the remedies to be applied may suggest, and there have the amount of his liability determined. We are not called upon to determine into which court appellant should have gone to have his claim adjudicated. The following authorities, however, may afford some useful suggestions on that subject: Ferrin v. Myrick, 41 N.Y. 315" date_filed="1869-12-21" court="NY" case_name="Ferrin v. . Myrick">41 N. Y. 315; 2 Woerner, sec. 758; Clapp v. Clapp, 44 Hun, 451. But the probate court has no' power to render and enforce a judgment against the administrator for an individual liability.
Mr. Woerner says : “Although it may be the duty of the court, in passing upon the administration account, to determine the reasonableness of payments for such services, and allow or reject the credits taken therefor, it has not the power, unless expressly granted by statute, to adjudicate upon the claims of such persons against the administrator. Their remedy, if he refuse to pay, is in another court.” 1 Woerner, Adm’n, sec. 152; 2 id. sec. 356. Also the following: Ferrin v. Myrick, 41 N. Y. 315, and authorities cited; Rice, American Probate Law, 442; Kowing v. Moran, 5 Dem. Sur. 59.
So much of the opinions in Turner v. Tapscott and Yarborough v. Ward, supra, susceptible of being construed as approving any other rule, is overruled.
It follows that the circuit court had no jurisdiction to render the judgment in this case, and the same is therefor reversed, and the cause is remanded without prejudice.