168 P. 522 | Mont. | 1917
delivered the opinion of the court.
During the course of the administration of the estate of John B. Sattes, deceased, on March 20, 1917, a petition was presented to the district court, signed by the executrix and Fred Sattes, the two principal beneficiaries under the will, praying that an order be made fixing and allowing the attorney fee to be paid out of the funds of the estate by the executrix to James T. Fitzgerald for professional services rendered and to be rendered by the attorney to the executrix in advance of any payment made by the executrix to the attorney, which amount so fixed and allowed should thereafter be included in the final account and presented for settlement and allowance. On March 28 notice of the discharge of the attorney was filed, and on March 30 a motion was presented to dismiss the petition for the allowance of attorney’s fees and to set aside the inventory and appraisement theretofore returned. The motion was supported by the affidavits of the executrix and Fred Sattes, which disclosed the reason assigned by them for their proceedings. The petition and motion were heard together, resulting in an order denying the motion and granting the prayer of the petition. The order, so far as material here, follows: “It is therefore ordered, adjudged, and decreed, and this does order, adjudge, and decree, that the sum of two thousand five hundred ($2,500.00) dollars be, and the same hereby is, allowed by the court to said Nellie Eisenhauer, executrix as aforesaid, for the said attorney and counsel, James T. Fitzgerald, as and for compensation for the
A district court sitting in probate has only such jurisdiction
It is settled beyond further controversy in this jurisdiction that the employment and payment of counsel by the executrix
In 1 Woerner’s American Law of Administration, second edition, section 152, the principles to which we have adverted are stated as follows: “Upon the same principle, probate courts
Counsel for respondents refer to decisions by the supreme court of California which hold that the court may fix the amount of the attorney fee to be paid out of the assets of the estate, in advance of payment and in the absence of any report by the representative, but these decisions are apparently justified only by the usual and ordinary course of practice adopted and pursued in that state. Concerning the California doctrine, Woerner says: “But it appears, from the cases above cited that the contrary is well established as the general rule. ’’ (Sec. 356.)
It appears from the record before us that notice of the hearing upon the petition was not given as required by statute; but, waiving this aside for the purpose of this proceeding, we prefer to ground our decision upon the fundamental principle that the executrix is the only one who can have any claim against the estate for attorney’s fees, and that the executrix cannot have such a claim until the fees have been paid. Until they have been paid and properly reported to the court, the court has no jurisdiction to adjudicate upon the necessity of the services or the
The order is vacated and set aside.
Order vacated.