
    MARX v. McMORRAN.
    
    1. Estates of Decedents — Administrators — Attorney’s Services — Compensation.
    Where an administrator knows that an attorney is rendering-services which are beneficial to the estate, and interposes no. objection, the estate should pay for the services, although there was no contract which would make the administrator personally liable.
    2. Same — Trial—Brief.
    An attorney who performs services beneficial to the estate of a decedent should receive pay for the preparation of a brief' as well as for the time spent in the trial of a case.
    Error to St. Clair; Law, J.
    Submitted February 3, 1904.
    (Docket No. 71.)
    Decided April 26, 1904.
    Henry F. Marx presented his final account as administrator of the estate of Albert Meswald, deceased. The account was allowed in the probate court, and Henry MeMorran, administrator of the estate of Sarah C. Meswald, deceased, appealed to the circuit court. From a judgment for appellant, said Marx brings error.
    Modified and affirmed.
    
      James A. Muir (Orla B. Taylor', of counsel), for appellant (Marx).
    
      Phillips & Jenks and Goulder, Holding & Hasten,, for appellee.
    
      
       Rehearing denied January 30, 1905.
    
   Montgomery, J.

This case comes before us for review of the account of Henry F. Marx, administrator of the estate of Albert Meswald, deceased. The account was. presented in the probate court and allowed, whereupon Henry McMorran, administrator of the estate of Sarah C. Meswald, deceased, appealed from the order of allowance. On a trial of the case in the circuit court a special finding of facts and law was made. ,The account was very largely reduced,- and Marx, administrator, has brought the case here for review. The items in dispute are the attorney fees charged by Mr. O. O. Pinney and Mr. James A. Muir for services in connection with the administration of the estate of Albert Meswald.

The record is voluminous, containing, as it does, the entire testimony taken on the trial. The briefs discuss-numerous questions, but, as it was practically conceded by the appellant in his reply brief that the only question which we need consider is the question of the allowance of attorney fees to Mr. Muir and Mr. Pinney, we will, limit our discussion to such questions as bear directly upon, the points presented affecting the amount of the allowance.

It appears that Albert Meswald and his wife, Sarah C. Meswald, were both aboard the propeller Wokoken when she foundered on Lake Erie, October 14, 1893, and that both perished in this disaster. As to which died first is not now necessary to determine. On October 21, 1893, John Mitchell, a brother of Sarah O. Meswald, was appointed administrator of the estate of Albert Meswald by the probate court of Cuyahoga county, Ohio, upon a petition which alleged that the decedent was domiciled in St. Clair county, Mich., at the time of- his decease. Letters were issued authorizing Mitchell to administer upon the estate of the decedent situated in the State of Ohio. O. C. Pinney, a lawyer at Cleveland, was then employed as attorney of Louis Meswald, an uncle of Albert Meswald, to look after the interests of Meswald. It was through Pinney that the services of Mr. Muir, of Port Huron, were enlisted, and from this date a legal contest has been, waged between the heirs of Albert Meswald and the heirs of Sarah C. Meswald.

Among other steps taken by the heirs of Albert Meswald, the appointment of a general administrator by the probate court of St. Clair county was secured; Mr. Albert J. Gilchrist being first appointed, and thereafter, upon his resignation in November, 1894, the present administrator, Henry F. Marx, being appointed. As the representative of Marx, administrator, and Louis Meswald, Mr. Pinney took steps in the courts of Ohio to secure the transfer of the fund to the State of Michigan.

It would be as tedious as the counsel on either side were apparently untiring for us to pursue in detail in this opinion, step by step, the various motions, cross-motions, appeals, and trials which were entered upon having in view the end of transferring this fund to Michigan, where it unquestionably belonged. On the one side it is averred that Mr. Pinney and Mr. Muir engaged in useless litigation, were unnecessarily and unusually active, and that the result might have been reached without incurring the large expense to the estate with which it is now sought to charge it. We agree that the finding of the circuit judge that there is some justice in this claim is correct. The result might have been reached more directly. On the other hand, it is beyond question that Mr. Mitchell and his counsel placed in the way of Mr. Pinney and Mr. Muir obstacles at almost every step, and waged an unjustifiable contest against their efforts to secure the transfer of this fund to Michigan. The circuit judge found that Mr. Pinney and Mr.' Muir dictated who should be appointed administrator, and found that Mr. Pinney and Mr. Muir were never employed by either of these administrators, Gilchrist or Marx, in such manner as would bind the administrator personally, or in any such manner as should equitably bind the estate, except as specifically set forth.' He further found that an administrator is not interested in any contest between heirs; that the question as to whom the estate ultimately goes is not one that interests the administrator; but that successful litigation, although instituted for an heir, or under such circumstances that the heir might be primarily liable, may in some instances be a proper charge against the estate; and he proceeded to make certain allowances to the attorneys upon this basis. The finding that these administrators never employed the attorneys in such manner as to personally bind the administrator is supported by the testimony. But we think no .other .conclusion can be reached from the testimony than that the administrators were both cognizant of the services which were rendered by Mr. Pinney and Mr. Muir, that they interposed no objection to it, and that it was expected that for such services as were distinctly beneficial to the estate the estate would be expected to pay. Gilchrist, in effect, testifies to this.

The only question that has given us trouble is the question what would be a reasonable allowance, taking into account the amount of the estate and the character of the services rendered. The counsel for the appellant concede the propriety of the court taking into account the amount of the estate in determining the amount of charges which should be fixed. As the evidence is undisputed as to the services rendered and expenses incurred, it only remained for the court to determine what a reasonable and proper .allowance should be in each case.

The allowance made to Mr. Muir was $351.25. This allowed him for the bare time employed in the trial of a •case at Cleveland, without any allowance for preparation •of brief. It excluded one item of services at Marine City, and expenses. We think that this allowance should be increased $88.50, making the allowance to Mr. Muir $439.75 for services and expenses.

There was allowed to Mr. Pinney for services in preparation for trial, seven days, and all the expenses incurred, and time in taking depositions, in preparation of preliminary brief, charges paid to witnesses, stenographer, etc., •on this trial, the meager sum of $100, the expenses alone .amounting to $51.68. The servicesfor this protracted contest were reasonably worth $250. There was also charged by Mr. Pinney, for services in contesting the final account •of John Mitchell, administrator, and expenses, $300. The finding of the circuit judge treats $150 as a reasonable charge for this, and, as Mr. Pinney received $150 in all from Louis Meswald, applies this in payment of this service. We think this unfair to Mr. Pinney. Other services were rendered by Mr. Pinney, which had direct relation to the contest between Meswald and the heirs of' Mrs. Meswald, to which the payment received from Meswald would more properly apply. We think an allowance-of $150 should be made to Mr. Pinney on this account. There should also be allowed to Mr. Pinney for services in the claim against the Arbeiter Bund the sum of $25. These additions to the account as allowed by the circuit judge would make the allowance to Mr. Pinney stand $746.68.

The order of the circuit judge will be modified. Th& allowance will stand, as stated: To Henry F. Marx, $339.96; on accountof James A. Muir’s services, $439.75;, on account of the services of O. C. Pinney, $746.68; and,, as so modified, will stand affirmed. The costs of the proceedings in this court will be chargeable against the estate.

Moore,C. J., Carpenter and Hooker, JJ.,concurred.. Grant, J., took no part in the decision.  