
    ATTORNEY’S FEES WHERE PARTITION IS DENIED.
    [Common Pleas Court of Crawford County.]
    Frank R. Myers et al v. Margaret Myers et al.
    Decided, April 13, 1907.
    
      Action in Partition — Partition Denied — Property Ordered Sold to Pay Decedent’s Debts — Attorney’s Fees a Matter of Personal Contract— Not Allowable as Part of the Costs Under Section 5778.
    When an action had been commenced in partition, but afterwards the administrator of the common ancestor filed a cross-petition asking the sale of the real estate described to pay the ancestor’s debts, and the property was sold on such cross-petition, no attorney fee can be allowed counsel for the plaintiffs under Section 5778, Revised Statutes.
   BabSt, J.

The question submitted in this proceeding is: Can the court lawfully make'an allowance of compensation to plaintiffs’ attorneys for services? The record discloses that in June, 1906, Frank R. Myers and another filed a petition in partition in this court, praying for partition in certain premises therein described, and in the alternative that if partition can not be made, a sale of the premises may be made. All persons in interest were made parties. July 28, 1906, Margaret Myers and Isaiah Myers filed answers and cross-petitions averring their respective rights in the premises. Both of these cross-petitions contain allegations antagonistic to the petition, but as they have been passed upon, it is not necessary to review them in order to consider the question now before the court. Later, like cross-petitions were filed by other heirs. August 21, an amendment to the petition was filed correcting the names of certain heirs as named in the petition.

June 30, Geo. J. -Stuckert, as administrator of the estate of John G. Myers, the common ancestor, filed an answer in which he averred his fiduciary capacity, gave the date of J. G. Myers’ death, November 16, 1905, less than one year before the filing of the petition, denied the sufficiency of the personal estate of J. G. Myers to pay his debts, and affirmed that it would be necessary to sell the real estate to pay the debts, and pleaded the pendency in probate court of a proceeding to sell the same premises to pay debts.

December 10, the administrator filed an amended answer and cross-petition, followed, December 19, by' a second amended answer and cross-petition (the latter two differing only as to the definiteness of certain averments), which in a large sense were intended to raise and did raise purely legal questions as to the right of partition within a year after the death of the common ancestor, and as to the effect of an order of sale issued by the probate court during the pendency of partition proceedings. They also, by cross-petition, made the necessary allegations for a sale of the premises by himself as administrator to pay the debts of John G. Myers.

On demurrer to this second amended answer and cross-petition, the case went to the circuit court and that court denied partition, found for the administrator on his cross-petition, and directed a sale by him, which was duly made, the sale confirmed and the purchase price is now in the. hands of the administrator. The decision of the circuit court will bo found at 9 C. C. — N. S., 449.

This is a brief review of the facts as disclosed by the pleadings and record. Counsel for plaintiffs, Frank R. Myers et al now move that the court make an allowance of a reasonable attorney fee as part of the costs, under Section 5778, Revised Statutes. The administrator moves that the court strike this motion iron! the files on the ground, that this is not a partition proceeding and that the court has no .jurisdiction to allow an attorney fee. To determine this "question, the court must find and declare. Ihe character of this proceeding.

Is it a ease in partition? If it is. the motion to strike from the files must be overruled.

Is it a proceeding to sell the real estate of a deceased person to pay his debts? If so, the motion to strike from the files must be sustained.

This court has jurisdiction in partition and the probate court has not. Both courts have concurrent jurisdiction to sell real estate to pay debts of a deceased person. A case in partition can eventuate in only one of two ways, first, by an aparting so that each of the tenants in common or coparceners may have set off his share; or, second, failing this, on a finding by the commissioners that partition can not be made, a sale of the premises and distribution of the proceeds of sale less costs, according to the respective interests of the parties. This, in strictness, means a proceeding in this court that can not be had in the probate court. In partition, deeds are made by the sheriff, and if the property is sold the proceeds are ordered paid out by this court.

Under a sale by the administrator, he receives the whole proceeds, and out of it pays the costs, and then makes final settlement, not in this court but in the probate court. The character of these proceedings is so radically different that they can not be confused.

In this case, partition was denied, a finding was made by the circuit court for the administrator, and a sale was had accordingly. So we find and hold that the proceeding, although commenced in partition, terminated in a proceeding to sell real estate by the administrator for the payment of the debts of the decedent.

L. G. Feighner and Anson Wickham, for plaintiffs.

Scroggs <& Monnett, for administrator of J. G-. Myers.

Finley Gallmger, Kemvedy c& Kennedy and W. J. Sehwenck, for other heirs.

Can this court, having thus found the nature of the a.<?tion, now allow an attorney fee? The case of Young v. Stone et al, 55 O. S., 125, is not in p.oint. That was clearly a case in partition and where the attorney agreed to perforin the services for a sum certain, and it-was held he waived the compensation otherwise provided. Neither is there any question that the case of Layman v. Layman, 19 C. C., 654, was a ease in partition.

In the cases of Thomas v. Moore, 52 O. S., 200, and Sherman v. Millard, 6 C. C.—N. S., 338; the question of attorney fees in administration cases, it was held, is a matter of personal contract between the administrator and his counsel, and that these contracts do not bind the estate. If the amount paid was reasonable and the services for the benefit of the estate, the administrator will be allowed 'Credit for the same on his expense account, but any party interested may contest the “allowance of any credit claimed for counsel fees paid, on the ground that the services were unnecessary; or became necessary from the wrongful act or neglect of the representative; or that the amount paid was unreasonable. ‘The rule is, that the administrator may be allowed credit only for counsel fees which he has actually paid, and no more than is a reasonable compensation for the services rendered to the estate, no matter what the administrator has actually paid or contracted to pay, and the burden is on him to prove the necessity and value of the services.’ Woerner on Administration, Section 515.” Thomas v. Moore, 52 O. S., 200, 206.

So, having found this to be a proceeding by an administrator to sell real estate to pay debts of a decedent, and finding the law to be that the service of counsel in such a case is a matter of private contract between such counsel and the administrator, the court holds that it has no authority to make an allowance to counsel for the plaintiffs, and sustains the motion of the administrator to strike their motion for such allowance from the files.  