
    No. 99
    COSTINE, Admr. v. KENNON
    No. 19558.
    Supreme Court
    On motion to certify.
    Dock. Jan. 11, 1926;
    4 Abs. 56.
    114. ATTORNEY & CLIENT — If a will provides for the employment of attorneys to contest the will if the heirs so desire and the will is set aside, are attorney fees recoverable from the estate of the deceased?
    . Attorneys — T. C. Ayers,, for Costine; N. K. Kennon, for Kennon; both of St. Clairsville.
   This action was brought originally in the Belmont Common Pleas by Newell Kennon, against Anna Stahl and D. H. Crymble, as executors under the will of William Patterson, deceased, on an account for services in contesting said will. The suit referred in the account was brought by all the heirs of William Patterson.

Shortly after the suit was filed by Kennon the executors settled their account in the probate court and John E. Costine was appointed administrator de bonis non, and on his motion was made a party defendant, and filed an answer to the petition and later an amended answer in which the following defenses were set up:

1. The first defense admitted the services set out in ■ the account and denies each and every allegation of the petition not expressly admitted.

2. The second defense was that the defense of Stahl and Crymble to the will contest was voluntary and that their authority as executors was terminated by settlement in the probate court.

3. The third defense alleged that Kennon’s claim was an item of the account filed and that exceptions to this item were sustained, but that Kennon, with notice of this ruling, failed to prosecute error or appeal thereto and that therefore there is a judgment against Ken-non’s claim.

Kennon filed a general denial to the amended answer and judgment was rendered in his favor and affirmed by the appeals.

Costine, as admr., here contends:

1. That the Common Pleas erred in overruling a motion for a new trial.

2. That the Common Pleas erred in charging the jury that the only issues to be submitted are the questions of fact raised by the petition and the first defense of Costine’s answer.

3. That the Common Pleas erred in charging the_ jury as follows: “If you find - - - - 'that William Patterson, before his death, made provision for the employment of attorneys to look after any contest of his will, - - - - and the service under that employment was rendered, you would be warranted----in finding a verdict for the plaintiff.”

4. That there is no evidence that Patterson employed Kennon as attorney for the executors in case the will was contested. (The will not designating a particular attorney.)

5. That the Common Pleas erred in overruling a motion to direct a verdict for Cos-tine.

6. That the facts set forth in the petition do not show a cause of action.  