
    No. 316
    SCHAEFER v. BREWER, Admr., et al
    No. 18889.
    Supreme Court
    On motion to direct Cuyahoga Appeals to
    certify. Dock.
    Jan. 2, 1925,
    3 Abs. 18.
    516. FEES AND COSTS—Is counsel entitled thereto, when money is put into estate due to his services, but he is not employed by administrator?
    Attorneys—Gordon &Gordon for Schaefer; Hole, Jeremiah, and Jewitt for Brewer; all of Cleveland.
   Ferdinand Valentine gave Charles Schaefer a power of attorney in March 1921, authorizing him to take charge of his personal affairs and property, and especially authorizing him to collect from his son, Richard Valentine, $5,000 loaned him several years before. The power of attorney was revoked by the death of Ferdinand Valentine, in April 1921, and his will was produced and probated, in which Richard and a minor son were named sole beneficiaries.

No inventory of the estate was filed and it was represented as insolvent. Schaefer presented a claim to Valentine, the executor for $181.25 for expenses incurred, and services performed, while acting under his power of attorney. The claim was rejected and suit in the Cleveland Municipal court was instituted, wherein Schaefer recovered judgment for the full amount.

Thereupon Schaefer as a creditor, filed a complaint in the Probate Court charging Richard Valentine with concealing, embezzling, and conveying away assets of the estate. Valentine was required to file an inventory; and the court sustained Schaefer’s complaint and exceptions to the inventory. Valentine was removed as executor and was charged with $6075.51 in addition to what he had previously accounted for. After his removal he paid the judgment of $181.65, also $80 for costs.

Schaefer then filed an application for the appointment of an administrator de bonis non with the will annexed, and N. J. Brewer was duly appointed. Schaefer presented his claim for costs and attorney’s fees to Brewer, who rejected it. Schaefer commenced action in the Probate court by filing a petition. Brewer contended that the court had no jurisdiction of the action, it being one to allow a creditor, out of an estate, for his services in an effort to collect his own bill. All persons interested under the will were made parties defendant. Brewer demurred to the petition. Demurrer was sustained by the Probate and the petition dismissed. The case on being taken to the Court of Appeaols was reversed by it and the Probate decision affirmed.

In bringing the case to the Supreme Court, Schaefer contends that the Probate Court is vested with power to apply both legal and equitable principles in determination of questions arising in settlement of estates.

When beneficiary recovers trust property and bears expenses, a reasonable fee will be allowed to his attorney as part of costs. Harris v Harris, 5 N. P. N. S. 239; Trumpler v. Royer, 95 OS. 194, cited.  