410 TUCKER V. GRACE. [61 TUCKER V. GRACE. Opinion delivered December 21, 1895. ADMINISTRATION — CLAIM AGAINST ESTATE — ATTORNEY'S FECE.—An attorney employed by an administrator of an estate has no claim against the estate, although his services may have inured to its benefit. He must look for compensation to the administrator who employed him. SAME—LIABILITY OF ADMINISTRATOR FOR ATTORNEY'S FEE. — An agreement that an administrator was not, to pay anything out of his own pocket for services rendered by attorneys in the prosecution of an action in behalf of the estate, but that they were to get their fee out of the .amount recovered, does not relieve the administrator from . personal liability in the event of recovery, but merely protects him against liability for any amount beyond the recovery. SAME—COMPENSATION OF ATTORNEY.—The fee for which an administrator is personally liable for an attorney's services in the successful prosecution of an action for the negligent killing of his
K.] TUCKER V. GRACE. 411 intestate is not controlled by Sand. & H. Dig., sec. 217,.fixing the compensation of an attorney employed by the administrator under direction of the probate court. DMINISTRATOR—LIABILITY FOR ATTORNRY'S FM—It is 110 defense to an action against an administrator for attorney's fees for prosecuting an action for the benefit of the estate that the administrator was not authorized by the probate court to bring such action, the statute (Sand & H. Dig., sec. 219), which provides that "no attorney's fee shall be allowed any executor or administrator unless for the prosecuting or defending a suit under the direction of the court," being intended for the protection of the estate. Appeal from Jefferson Circuit Court. JOHN M. ELLIOTT, Judge. STATEMENT BY THE COURT. John W. Tucker, administrator of the estate of S. D. Morrow, employed W. P. & A. B. Grace, attorneys at law, to commence and prosecute an action for damages against a railway company for causing the death of said Morrow. The result of the action thus brought was a judgment against the railway company for the sum of twenty-five hundred dollars. The company paid the amount of the judgment to Tucker, and this action was afterwards brought by said attorneys to recover of Tucker five hundred dollars as a fee for their services in the action against the railway company. There was a verdict and judgment in favor of the plaintiffs for the sum of three hundred and ninety-five dollars. A motion for new trial was filed, overruled, and appeal taken. Bridges & Wooldridge, for appellant. 1. There was no allegation in the complaint that the services, were rendered under an order of the probate court. Without such order plaintiffs could not sue defendant as administrator. 30 Ark. 322 ; Sand. &. H. Dig. sec. 219. 2. If defendant was' liable at all, it was only for the fees fixed by statute. Sand. & H. Dig. sec. 217.
412 TUCKER v. GRACE. [6 3. Under the proof appellant was not individuall liable. 4. Plaintiffs should have presented their claim t the probate court. 34 Ark. 204. Austin & Taylor, for appellee. 1. The suit was properly brought in the circui court to settle the disputed claim. 1 Woerner, Am Law of Adm. p. 346-7-8. 2. The personal liability of appellant is well set tled. 2 id. p. 576 ; 34 Ark. 204 ; 39 id. 257 ; 40 id. 187 48 id. 390 ; 56 id. 161. Power of ad-RIDDICK, J., (after stating the facts). It is con n inp e t s T a t o te r t b o y contract. tended by the appellant that he is not personally liabl, upon his contract employing appellees to prosecute th, action against, the railway company. But an adminis trator has no power to enlarge, by his contract, till liability of - the estate that he represents. Whethe he contracts as an administrator or not, it is his owl undertaking, and not that of the decedent, and he in curs a personal liability. An attorney employed LI] the administrator of an estate has no claim agains the estate, although his services may have inured to th( benefit of the estate. He must look for compensatiot to the administrator who employed him. Underwood v Milligan, 10 Ark. 254 ; Bomford v. Grimes, 17 Ark 567 ; Yarborough v. Ward, 34 Ark. 208 ; Devane v Royal, 7 Jones, L. (N. C.), 426 Bowman v. Tallman, fa Robertson (N. Y.), 385 ; Estate of Page, 57 Cal. 238 Schouler, Ex'ors & Adm'rs. sec. 256 ; 2 Woerner, Ad. ministration, p. 756. It follows that the proper prac. tice, when the administrator refuses to pay for slid services, is for the attorney to bring suit against hitt individually, and not in his representative capacity. Liability of adstrat or This is conceded by appellant to be correct, as *2 for attorney's fee. general rule, but it is argued that in this case then
K.] TUCKER V. GRACE. 413 as an agreement that the appellant should not be per-onally liable, except for costs. The testimony on this oint, to quote the language of one of the appellees, ho testified as a witness, iS as follows : "He was not o pay us anything out of his own pocket. We were to ave our fee out of what we "recovered." We do not nderstand .from this testimony that appellant was no event to be liable. On the contrary, it seems plain hat the intention was that he should not be liable eyond the amount recovered in the action against the ailway company. Had nothing been recovered, he ould have been liable in no amount ; but, as he re-overed twenty-five hundred dollars, he becomes liable or a reasonable fee. For such reasonable expenses ecessarily incurred by the administrator in the dis-harge of his duties, he has, in common with other trus-ees, a lien on the assets in his hands, and, upon a roper showing, will be allowed credit therefor in the ettlement of his account with the estate. When the ppellant has paid the fee due appellees, he will be utitled to a credit therefor in his settlement as admin-strator, and the result will be, as stipulated in his con-ract, that he has "paid nothing out of his own pocket." Neither do we think that the amount of the fee in As to amon of a tt o r n ey his case is controlled by section 217 of Sand. & H. compensation. igest./ That section, as was said in Turner v. Tut.- cott, 30 Ark. 320, has reference mainly to the collection f debts due estates, and fixes the compensation to be 1 Sec. 217, Sand. & H. Dig. provides : " When it shall become nec-ssary, in the opinion of the court, for any executor or administrator o employ an attorney to prosecute any suit brought by or against uch executor or administrator, the attorney so employed shall receive, s a compensation for his services, eight per centum on all sums less han three hundred dollars, and on all sums over three hundred and ess than eight hundred dollars, four per centum, and on all sums over ight hundred, two and a half per centutn."
414 [61 allowed attorneys for such suits, but does not apply in a case such as we have here. Personal liability of ad-Nor does it avail the appellant anYthing in this ministrator employing at-action that he failed to obtain the order of the probate torney. court before employing an attorney. Even without such an order it would still be within the discretion of the court to allow the administrator credit for fees paid an attorney for the prosecution of a suit which resulted to the benefit of the estate. Reynolds v. Canal & Banleing Co., 30 Ark. 520. But that question is not before us ; for whether the administrator is entitled to a credit for the fee which he has paid an attorney is a different question from the one as to whether he is personally liable to the attorney whom he employs. The statute referred to (sec. 219, Sand. & H. Dig. 2 ) was intended to protect estates, not administrators, and, as this is an action against Tucker individually, and not against him as representative of the estate of Morrow, it has no application. The verdict of the jury has evidence to support it. Finding no error, the judgment of the circuit court is affirmed. 2 Sec. 219, Sand. & H. Dig. provides : "Such attorney's fees shall be paid as expenses of administration ; but no attorney's fees shall be allowed any executor or administrator unless for the prosecuting or defending a suit under the direction of the court."
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.