
    ADMINISTRATORS AND EXECUTORS.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and Giffen, JJ.
    Orville W. Ballard et al., Exrs., etc. v. Alfred Mack et al., Exrs., etc.
    Want of Notice of Motion for Fixing of Fees of Executor for Special Services Deprives Court of Jurisdiction.
    A court is without jurisdiction to hear and determine a motion to fix the compensation due an executor and trustee for extraordinary services in such capacity, where no notice of the pendency of such motion was given to the beneficiaries under the will.
    Error to Hamilton common pleas court.
    Morse, Tuttle & Harper and W. W. Prather,, for plaintiffs in error.
    Cohen & Mack, for defendants in error.
   GIFFEN, J.

This case arose in the probate court and was tried upon the following motion:

“R. H. Henry, Ella B. Henry and Alfred Mack, executors of J. D. Henry, deceased, move the court to fix and determine the amount of commissions due to said J. D. Henry as executor and trustee of said George K. Shoenberger, deceased, and also the amount due to him for his extraordinary services as such executor and trustee.
“Maxwell & Ramsey,
“Attorneys for executors of J. D. Henry, deceased.”

The probate court allowed to the estate of J. D. Henry as compensation for his services as trustee, the sum of $10,000, and upon appeal to the common pleas court a like sum was allowed. To this judgment error is prosecuted to this court.

No notice was served upon any of the beneficiaries under the will, and it is therefore claimed that the court was without jurisdiction to hear and determine the motion.

Revised Statutes 6402 (Lan. 9978) provides: That “notice be published in some newspaper of the county, of the filing of any accounts by executors,” and Rev. Stat. 6329 (Lan. 9896) provides: That a like notice be issued, “requiring all persons interested, to attend the settlement of a trustee’s accounts.”

An account by an executor and the settlement by a trustee embraces all matters done by the executor or trustee which affect the substantial interest of the estate or the beneficiaries therein. The compensation claimed by an executor or trustee other than the percentage fixed by the statute is as important an item in the-account of an executor or in the settlement by a trustee as any other claim allowed and paid out of the estate.

Counsel claim that the case is similar to that of a referee or receiver, but in each of those cases, the parties are before the court and are bound to take notice of all proceedings therein, including the allowance of a fee for referee or receiver.  