
    (First Circuit, Hamilton Co., O., Circuit Court
    Jan’y Term, 1896.)
    Before Smith, Cox and Swing, J J.
    KITTREDGE v. MILLER.
    
      Attorney fee — Insolvent trust estate — Suit for compensation dismissed because proceeding not yet terminated, no bar to subsequent action—
    1. A judgment by the Superior Court of Cincinnati sustaining a demurrer to a potition filed by an attorney against the trustees of an insolvent estate for the purpose of recovering compensation for services rendered in securing a fund for the benefit of the . trust, under an arrangement with the assignee of such estate, in a proceeding not then terminated, and dismissing such action on this ground, is not a bar to the prosecution of a suit,or subsequent proceeding brought in the probate court for an allowance for the value of such services.
    
      Same — Jurisdietion—Probate Go urt—
    2. The Superior Court had not jurisdiction to hear and determine such a question, the exclusive right to do so in the first instance being vested by the statute in the probate court.
    
      Thirty days to bring suit on rejected claim — Effect—
    
      3. The thirty days time (Section 6352, Revised Statutes), within which to bring suit on a claim rejected by the assignee or trustee of an insolvent estate, probably relates only to claims against the assignor, and not to claims arising against the trust estate during the settlement of the trust. The thirty days is not a period of limitation, but fixes a time after which distribution of the estate may properly be made without regard to such rejected claim, if suit is not brought within the trirty days after its rejection.
    
      Same — Failure of action otherwise than upon the merits — Limitation—
    
    4. The present proceeding having been commenced within one year after the termination of the former action in the Superior Court in which the plaintiffs failed otherwise than upon the merits, and being on the same cause of action, it is not barred by the 'statute of limitations of six years.
    
      Attorney for trust estate — Bight to compensation—
    5. An assignee is authorized to employ counsel to aid in the administration of the trust, and such counsel is entitled to be paid his reasonable fees from the trust fund on the allowance of the pro ■ bate court. And the fact that the succeeding trustee refuses to allow or pay any such claim, is not sufficient ground for the refusal of the probate court to make such allowance.
    
      
      Error and Appeal from Probate Court admissible — Finding of facts and law by Probate Court—
    6. Error as well as appeal may be prosecuted from a judgment of the probate court. And such court, under section 5205, Revised Statutes,has authority to make a finding of facts separately from its conclusions of law.
    Error to the Court of Common Pleas of Hamilton County.
   We state our conclusions in this case very briefly:

1st. We are of the opinion that the judgment rendered by the Superior Court of Cincinnati, and afterwards affirmed by the Supreme Court, in the case prosecuted by Mr. Kittredge against Miller & Tafel, assignees, to recover his claim against said trust estate for the same compensation, which is now sought to be collected in this proceeding instituted in the Probate Court, and which judgment was pleaded in bar of this action, was not a bar thereto — and for the reasons, 1st. that such action was not decided upon the merits, the question having arisen upon a demurrer to the petition, which was sustained upon the ground that it did not contain any allegation that the plaintiff was entitled to compensation for securing a fund for the benefit of the trust estate, and that it had been realized — the fact being that at the time of the commencement of the suit, and when the judgment was rendered, the case in which the services were rendered, was still pending and undisposed of, and no money as the result of the action had been collected by the assignees; and 2nd, for the additional reason that the Superior Court had not jurisdiction to hear and adjudicate the question whether an attorney employed by an assignee of an insolvent estate to transact business in the settlement of said trust, is entitled to be paid from the trust funds a compensation therefor, and fix the amount thereof, and render a judgment or decree that such amount be paid by the assignee from said trust fund. Rev.Stat. section 524,provides that “The Probate Court shall have exclusive jurisdiction except as hereinafter provided * * * *. Ninth, to qualify assignees, and appoint and qualify trustees and commissioners of insolvent debtors, control their conduct, and settle their accounts.” And as held in Betz vs. Snyder, 48 Ohio St., 492, ‘‘upon the filing of the assignment, the assignee is required to enter into a bond for the faithful performance of his duties, and from that time, the administration of the assignment becomes a pending proceeding in the Probate Court, and so continues until the trust is fully executed. * * *. The Probate Court is invested with complete jurisdiction of the whole subject matter of the assignment, and of its administration to final completion;” and, having this power, and as it seems to us the exclusive right to determine in the first instance what payments are to be made from the estate being administered, for the expenses of administering the same, it would follow that the Superior Court had not jurisdiction to do so, and therefore its judgment in that case, even if it had been one upon the merits, would not have operated as a bar to a proper proceeding in the Probate Court, to obtain an order from that court, that the trustees pay to Mr. Kittredge the reasonable value of the services rendered by him to the estate at the instance of the assignees, and under a contract, as in this case, that he was to receive payment therefor from the trust estate.

2nd. It is urged by the counsel for the trustees, that as the action in the Superior Court, or this proceeding in the Probate Court, was not commenced within thirty days after the rejection of his claim by the trustees, that he is forever barred from prosecuting any proceeding for the allowance or recovery of such claim under the provisions of Sec. 6352, Rev. Stat. We are of the opinion that this claim is not well founded. In the first place, we incline strongly to the opinion that this section provides for the presentation of claims which existed against the assignor, and not those which arise in the course of the settlement of the trust. But if this be not so, then in our view the statute in question is not one of limitations — it does not providers does See. 6097 of the administration statute, that if suit is not brought on a rejected claim, within six months after the rejection that the claim is forever barred. If the action against an assignee is not sued on within thirty days after its rejection, distribution of the assets of the estate may be made without reference to it. But we understand it to be the express holding of the Supreme Court, in Ownes v. Ramsdell, 33 Ohio St., 439, “that a creditor may come in at any time for his equitable share of the assets unadministered, or not lawfully disposed of at the time he presents or prosecutes his claim for allowance in the mode prescribed by statute. See also Harner vs. Lucky, 40 Ohio St. 602.

3rd. Nor do we think that the right of Mr. Kittredge to begin and maintain this proceeding in the Probate Court, was barred by the general statute of limitations of six years. The action in the Superior Court was commenced in due time. It was sustantially the same cause of action as this one — viz., to obtain from this estate the same compensation for the same services. In it the plaintiff failed otherwise than upon the merits, and this proceeding was commenced within one year from the final determination of the other case.

4th. It seems clear to us that our statutes in relation to the settlement of insolvent estates authorize the assignee to employ counsel to aid and assist him in the proper administration of the trust and of the duties which the law imposes upon him, and that when such employment is made, under an arrangement that the counsel is to be paid from the trust fund, that he thereby becomes entitled to receive therefrom such reasonable compensation as the Probate Court (in the first instance) may find right. Rev. Stat.6357 recognizes the right of the assignee to employ counsel, when it provides therein for the allowance to an assignee, before a dividend is declared, of his commissions,factual and necessary expenses,and extraordinary services, and also “for such reasonable counsel fees as may be necessary for the proper administration of said assignment, whether performed by the assignee or trustee as attorney, or such other as may be employed by him; and the claim made by counsel for the defendant in error, that such attorneyyfees’must have been actually paid by the assignee, before the court has any power to say whether the attorney has any3'claim against the trust fund, or what would be a reasonable amount thereof, seems to us wholly untenable. The right and dnty of the court to do this is clear, if the assignee has in fact paid it. But is it any the less the duty of the court to do it in a case where the employment has-been made, and the beneficial services rendered, but befoiVthey are paid for, or the estate really be divided, the assignee dies, and his successor succeeds to the funds and the administration of the trust? Does the fact of the death jof the assignee who employed the attorney, or the arbitrary refusal of the successor to pay anything to the attorney, or to apply Oto the court to say whether he should pay anything thereon, and if so, how much, absolutely put an end to his claim for just compensation from the estate? Such a conclusion would be abhorrent to the sense of justice of every one, and such a construction should not be placed upon the statute. . Surely if Miller & Tafel, who succeeded to the trust, had paid the claim of plaintiff, and in the settlement of their accounts the court had found on their affidavits and other proof, if offered, that there was such an employment by the former assignee, and that the services were performed for, and were necessary for the asssignment and that the amount so paid was reasonable, and not more than is usually paid for such services and they were performed under the direction of the assignee, it would be the duty of the court to allow the voucher therefor, as a credit to the assignee so paying it.

And as we have said, the assignee making the employment, •or his successor in the trust, cannot, in our opinion, by his mere refusal to do this, cut off all right of the attorney to a payment of a fair compensation for his services. If the original assignee who employed the counsel, or his successor in the trust,disputes the employment, or the amount of compensation therefor, the matter should be submitted to the court, and if the proof shows that the attorney is entitled to be paid if there be funds to pay it, we think the court has full power to do this, and in our judgment, on the facts as found by the court in the finding of facts, such an order ought to have been made in this case for the whole claim, of Mr. Kittredge, and will now be made.

5th. We think that the motion to strike this petition in error from the files is not well taken. It is claimed by the counsel for defendant in error that under our statutes, particularly under section 6407, which allows an appeal from the decision of the Probate Court in a case of this kind, that is the only way in which the plaintiff in error could reverse this judgment of the Probate Court, and that he did not appeal, but prosecuted error to the Court of Common Pleas. But Sec. 6708 expressly provides that a judgment rendered or final order made by the Probate Court may be reversed, vacated or modified by the Court of Common Pleas, and this warranted the filing in the Court of Common Pleas of a petition in error to reverse the judgment of the Probate Court.

6th. It is further claimed that the Probate Court was not warranted in making a finding of facts separately from its conclusions of law, under Sec. 5205, Rev, Stat. But Sec. 6411 makes the provisions of law governing civil proceedings in the Court of Common Pleas, in so far as they ■are applicable govern like proceedings in the Probate Court when there is no provision on the subject in the Probate Court law. We think that Sec. 5205 applies to proceedings in the Probate Court.

Paxton, Warrington & Boutet for Plaintiffs in error. I. J. Miller, for Defendants in Error.  