68 P. 472 | Nev. | 1902
The facts sufficiently appear in the opinion: The appellants instituted this suit by complaint and summons in the district court against the respondent, as administrator of the estate of Samuel Bowman, deceased, by which they sought to recover a judgment for $500 for attorneys' fees, payable out of the estate of the decedent. The demurrer interposed by the respondent was sustained, and, appellants refusing to amend, judgment was rendered thereon against them. From this judgment they have appealed.
The question presented here involves the action of the court in sustaining the demurrer. The averments of the complaint material to the question decided are that on the ___ day of August, 1900, the respondent, as administrator, employed appellants as attorneys to assist in the course of the administration of the estate of the deceased; that thereupon the appellants rendered legal services to respondent in and about said administration, and continued so to act until the 3d day of April, 1901, when said employment was terminated by the respondent; that the services rendered were reasonably worth the sum of $500.
By Section 269 (Comp. Laws, 3055) of the act to regulate the settlement of the estates of deceased persons, it is provided, among other matters, that all proceedings in matters of estates shall be proceedings of record, as other actions and proceedings, and that all attorneys for estates, executors, or administrators, or appointed in the proceedings, shall be attorneys of record, with like powers and responsibilities as attorneys in other actions and proceedings, and shall be entitled to receive a reasonable compensation, to be paid out of the estates they respectively represent, for services rendered, to be allowed by the court.
No such provision as the above is found in our old probate act, and under that act there was no authority given to the administrator expressly to create the relation of attorney of record of an estate, or an administrator or executor.
If necessary, the executor or administrator was authorized to employ counsel in a particular matter, but such employment was terminated by the disposal of that matter.
The allowance for such services was made, not to the counsel, but to the administrator, as a part of the necessary *372
expenses of administration. (Gen. Stats. 1885, sec. 2888; Douglass v. Folsom,
It will be observed that the provisions of the new act not only change the rule as it existed under the old one, but also create, as we believe, an exclusive remedy for the recovery for such services against the estate in the hands of the administrator or executor.
Now, the executor or administrator is authorized to employ general counsel. Such counsel are attorneys of record. Fees for their services are made a direct charge against the estate, and are allowed to the attorneys employed. They are not required to look to the administrator for their fees. By the provision of the later act the administrator or executor has no authority to fix the fees to be charged against the estate for such services. Such power is reposed in the court, and no formal suit is necessary. To what end? That there may be speedy and inexpensive settlements of estates; that justice may be done all. Why, then, should the estate be put to the expense of a trial, when all rights of the appellants are secured and protected by this provision? The verdict of the jury might or might not be binding upon the court. The remedy provided is both ample and exclusive. Whether the administrator or executor is personally liable under his contract of employment, and whether the ordinary action lies for such service against the administrator personally or individually, is not presented by this record, and is not considered or determined.
We do hold that for the services alleged the ordinary action will not lie to obtain a judgment binding the estate in the hands of the administrator or executor.
*373The judgment will therefore be affirmed.
