162 P. 1053 | Mont. | 1917
delivered the opinion of the court.
Proceeding on the relation of M. S. Cohen to review and annul a certain order of the district court of Jefferson county sitting in probate. The record shows the following: James S. Flaherty, administrator of the estate of Edward Cardwell, deceased, filed his affidavit in the matter of said estate, reciting that John L. Cardwell, his predecessor in the administration, had without permission of the court paid to the relator a certain sum of money out of the funds of said estate, and that said funds are short in the amount so paid. Thereupon a citation was issued commanding the relator to appear and show cause why he should not be adjudged as in contempt for receiving said money, and why he should not be compelled to repay the same to the administrator Flaherty. The relator appeared, and by appropriate motion challenged the sufficiency of the affidavit to warrant any citation or to give jurisdiction to the court. This was overruled, and evidence was taken which tended to show that prior to the payment by Cardwell to the relator an order had been made by said court forbidding the disbursement of any funds of said estate by the administrator or by the depositary without express authority of the court; that Cardwell hired the relator and Mr. L. P. Donovan to conduct certain important litigation in which the estate was involved which required counsel to proceed to Billings, Columbus, Boulder and other places, and made the payment in question for account of the expenses thereof; and that Cardwell knew, but the relator did not know at that time, of the order forbidding disbursements without express authority. At the close of the hearing, the court, Honorable Joseph C. Smith presiding, made the order in question, commanding the relator.
Some things of record, not material to the present inquiry, furnish an explanation of the order. The altogether unsatisfactory report of the administrator Cardwell shows that, besides the payment to-the relator, various sums have been disbursed for fees and expenses of the attorneys without apparent necessity; and the spectacle of a small estate expending a large proportion of its substance in this way offers the righteous judge strong temptation to act summarily. This course, however, often defeats the purpose in view, because it goes too far or, for other reasons, cannot, as a matter of law, be upheld.
for services to be rendered the estate are wholly personal, stand entirely upon the individual responsibility of the contracting-parties, create no relation between the attorney and the estate. (State ex rel. Kelly v. District Court, 25 Mont. 33, 63 Pac. 717; 1 Ross on Probate Law, p. 763 et cit.) In contemplation of the law, payments made pursuant to such engagements are of no concern to the estate or those interested in it, until, the administrator asks that allowance be made to him for them. He pays always at his own peril, for he can be allowed only such expenses in the care, management and settlement of the estate as are necessary, including reasonable attorney’s fees (Rev. Codes, see. 7631), and his judgment may be rejected by the probate court on the score of amount as well as of necessity. If this happens, he or his bond must make good regardless of whether he in turn can or cannot recoup from the attorney;
It follows that the order in question must be and it is annulled.
Order annulled.