
    Trumpler, Admr. de bonis non, etc., et al. v. Royer et al.
    
      Executors and administrators — Settlement of accounts — Jurisdiction of probate court — Section 8, Article IV, Constitution — Section 10492, General Code — Attorneys’ fees — Determination and, allowance — Item for settlement account, when — Appeal from application or order — Section 11206, General Code.
    
    1. By the provisions of Section 8, Article IV, Constitution, and Section 10492, General Code, plenary jurisdiction is conferred on the probate court to grant and revoke letters testamentary and of administration, to direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates.
    2. The allowance of fees for services rendered by attorneys employed by am executor or administrator in the settlement of the estate in his hands is a matter to be determined by the probate court, and until so determined such fees do not constitute a valid claim against the estate.
    3. The amount of such fees may be included as an item in the settlement-account of the executor or administrator; or an application upon due and legal notice to all parties in interest may be made to the probate court to allow the claim and fix the' amount thereof.
    4. Any person affected by order of the court with - reference to any such item or application may, by the provisions of Section 11206, General Code, appeal therefrom to the court of common pleas.
    (No. 15210
    Decided January 9, 1917.)
    
      Error to the Court of Appeals of Seneca county.
    This was a proceeding brought by the defendants in error, John C. Royer and Calvin D. Spitler, in the probate court of Seneca county. In their petition filed in that court they allege substantially that one Samuel Dahm was named in the will of Emma R. Slusser, deceased, as- executor, and had qualified ; that an action had been commenced by certain relatives to contest and set aside the will; that said Dahm had employed them as attorneys to represent him as such executor and to act for and on behalf of the estate in resisting the action to set asidle the will; that on the 9th of November, 1910, said Dahm died and on the 21st of December, 1910, plaintiff in error, Walter G. Trumpler, was appointed and qualified administrator de bonis non with the will annexed of the said Emma R. Slusser, and is now acting as such; that although Trumpler was appointed and qualified before the trial of the action to contest the will, yet he did not discharge the defendants in error, and they continued, with his consent and acquiescence and with the full knowledge on his part that the petitioners had been employed by his predecessor, to defend said action and to sustain said will at the expense of the estate; that all of the legatees in the will were made defendants in said action to contest and had due and legal notice of the prayer of the petition, and also that all of said legatees were fully informed and had full knowledge of the employment of the petitioners by the said Samuel Dahm in his representative capacity, as aforesaid, and that the said petitioners were rendering their legal services with the expectation of receiving reasonable compensation from the estate; that said litigation was successfully terminated in behalf of said estate and the will was sustained; and that they presented to the said Trumpler, as such administrator de bonis non, a statement of their account for such services and asked the allowance thereof, which the said Trumpler declined and refused. They therefore pray that said Trumpler, administrator, be cited by the court to show cause why he should not pay or provide for the payment of said claim, and that he be required to allow and pay the same out of the funds of the estate.
    To this petition a demurrer was filed, and sustained by the probate court. The sustaining of the demurrer was overruled in the common pleas court and this overruling was affirmed by the court of appeals.
    A motion filed in this court to require the court of appeals to certify its record to this court for final determination was overruled. Thereafter the demurrer was overruled in the probate court, and all the legatees and devisees under the last will and testament of said Emma R. Slusser were made parties to the proceeding and duly served. Answers were filed and issues made up.
    On the hearing of the issues made by the pleadings the probate court allowed to the defendants in error the sum of $400. Not satisfied with the amount, the defendants in error attempted to appeal to the common pleas court, which court on motion dismissed the appeal on the ground that the cause was not appealable. Error was prosecuted to the court of appeals, which held that the cause was appealable. The judgment of the court of common pleas was reversed and the cause remanded to the court of common pleas for hearing on the issues joined in the pleadings.
    This proceeding is brought to reverse the judgment of the court of appeals.
    
      Mr. Frank T. Dore and Mr. Milton Sayler, for plaintiffs in error.
    
      Mr. W. C. Rohrbacker and Messrs. Royer. & Spitler, for defendants in error.
   Johnson, J.

It is contended by plaintiffs in error that the probate court had no jurisdiction of the subject-matter. As to this it is shown in the statement that when the application was filed originally in the probate court the defendant administrator filed a demurrer thereto on the ground that the court had no jurisdiction to entertain the proceeding. This demurrer was sustained in the probate court. On error in the common pleas court this judgment was reversed, and the judgment of the court of common pleas was affirmed by the court of appeals. This court overruled a motion to require the court of appeals to certifiy its record here for final determination. Therefore, the decision of the court of appeals was conclusive as to that question.

The parties agree that the right of appeal is determined by Section 11206, General Code, the pertinent portion of which is as follows: “Appeal may be taken to the common pleas court, by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the probate court in settling the accounts of an executor, administrator, guardian, and trustee, or of assignees, trustees, or commissioners of insolvents.”

The plaintiffs in error contend that the words “in settling the accounts of an executor,” etc., mean the settlement of the accounts between the executor and the estate, and that the words “by a person against whom it is made, or whom it affects,” include only those who have the legal right to file exceptions to the account of an administrator or executor, etc. They urge that the question whether the defendants in error were entitled to anything had to be determined, and so long as it remained undetermined, credit for the payment thereof could not have been taken by the executor or .administrator and could not have been included as an item of any account, and therefore had no relation to the settling of an account or of an item thereof.

Plenary jurisdiction has been conferred upon the probate court in the settlement of estates. Section 8 of Article IV of the Constitution provides: “The probate'court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians,” etc. Section 10492, General Code, provides that the probate court shall have jurisdiction to grant and revoke letters testamentary and of administration and to direct and control the conduct and settle the accounts of executors and administrators and order the distribution of estates.

In McMahon, Admr., v. Ambach & Co. et al., 79 Ohio St., 103, it was held:

“1. The statutes of the state bearing upon the settlement in the probate court of the estates of de.ceased persons, taken together, show that the allowance to an administrator for extraordinary services in the settlement of the estate is part of the statement of his account, and is to be considered by the court accordingly.
“2. Whether, the allowance is in fact made at the time of or prior to the filing of a settlement account, such allowance cannot take effect as prejudicing the rights of others interested in the settlement of' the estate who have not had notice until the court, after legal notice, acts upon the settlement account itself.”

In that case an allowance for extraordinary services had been made to the administrator without notice to the parties in interest. The order was purely ex parte, and this court held that when the item was included in the final account it was then subject to exceptions by parties in interest. In the opinion it is stated by Spear, J., at page 114:

“It is not doubted that the probate court has power, in the proper way and at the proper time, to make allowances for extraordinary services by an administrator, nor that, speaking in the general sense, the proceedings in the settlement of estates by the probate court are not inter paries, or adversary in character, but are proceedings in rem. This because the estate itself, the res, is committed to that court, and on that court is devolved the duty of determining its status and disposing of its corpus. But it does not follow that every matter connected with the settlement of an estate is strictly in rem, and therefore binding on everybody without notice, for we find provision for notice in many matters which in their nature may be considered in rem.” And, on page 119, it is said: “In legal effect the item in dispute in the present case is part of the settlement account, is subjected to the same right of review, and must stand or fall on review the same as any other item excepted to.”

In the case at bar the application was made to the probate court, upon which is “devolved the duty of determining the status and disposing of the corpus” of the estate.

All parties in interest were notified and appeared in court, and by proper pleadings set up their claims with reference to the matter in dispute. As was the view of the court in the McMahon case, supra, “in legal effect” the item in dispute became an item to be included in the settlement account. In the syllabus of that case it is held: “Whether the allowance is in fact made at the time of or prior to the filing of a settlement account, such allowance cannot take effect as prejudicing the rights of others interested in the settlement of the estate who have not had notice until the court, after legal notice, acts upon the settlement account itself.”

It may be said that the allowance of extra compensation to an administrator and the allowance of fees to be paid to attorneys for services rendered in settlement of the estate are matters to be determined by the probate court, and until so determined they do not constitute valid claims against the estate.

In Thomas, Admx., v. Moore, 52 Ohio St., 201, it is held: “Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay for, and receive credit for the expenditure in the settlement of his accounts.”

In discussing the right and duty of administrators and executors to employ counsel to advise and assist them in the performance of their official duties, after stating that it cannot be determined that the services or their value constitute a part of the fund in the hands of the representative, however important or valuable those services may have been in collecting the assets, or in resisting unjust claims against them, it is said, at page 206: “The law contemplates that the representative will himself pay the value of such services, and be reimbursed, by receiving credit for the amount paid, in the settlement of his accounts. Such items constitute a part of the .expenses of administration, which, together with the funeral expenses, take precedence, under our statute, of all other demands.”

In the present case there devolved on the probate court the duty of determining matters affecting the status of the estate of Emma R. Slusser, deceased, and of legally distributing it. As shown, the attorneys were not entitled to bring suit at law, against the administrator as such, to recover for their services. An administrator is the instrumentality selected- and appointed by the probate court for the' settlement of the estate in accordance with the law and under the orders of the court. And counsel who have rendered necessary professional services in connection with an estate in the control of the court, whether in connection with its settlement or in defense of a suit to contest a will, should have the right to invoke the order of the court to determine all questions touching the service, after due and legal notice to all parties in interest. Otherwise an administrator by refusing to include in his settlement account an item for the payment of counsel could arbitrarily deprive them of opportunity to have their claim considered.

Section 10214, General Code, provides that the provisions of part third and all proceedings under it shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. “The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part.”

Section 11206, General Code, is a remedial statute and is one of the sections included in part third of the General Code.

We think it clear that the matter presented to the probate court by the defendants in error in this case was such a one as to constitute a proper item in the settlement account of the administrator. The order made by the probate court touching the item affected the defendants in error, within the meaning of Section 11206. And all parties in interest being before the court at the time the order was made the defendants in error were, under the provisions of that section, entitled to an appeal.

For these reasons the judgment below will be affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.  