
    Thomas, Adm'x, etc., v. Moore, etc.
    
      Appeal from justice of peace — Appellant described as administrator but not party to judgment in fiduciary capacity — Appeal bond— Section 6584, Revised Statutes — Personal liability of execiUors and administrators.
    
    1. An appeal from the judgment of a justice of the peace, by a party described in the action as the administrator of an estate, is not perfected without an undertaking therefor as required by section 6584, of the Revised Statutes, unless the appellant is a party to the judgment in his fiduciary capacity, and the appeal is in the interest of the trust.
    
      2. Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay foi, and receive credit for the expenditure in the settlement of his accounts.
    3. A judgment recovered against the executor or administrator on a claim for such services, must be treated as a judgment against him in his individual, and not in his representative capacity, and to perfect an appeal taken by him from such judgment rendered by a justice of the peace, an undertaking for the appeal is necessary.
    (Decided December 18, 1894.)
    Error to the Circuit Court of Brown county,
    John R. Moore, as the surviving partner of the firm of McKnight & Moore, a partnership formed for the practice of the law, brought his action before a justice of the peace of Brown county, against Elizabeth J. Thomas, as administratrix of the es - tate of David Thomas, deceased, to recover for legal services rendered the defendant by the firm. The bill of particulars states that the services were performed by' the firm for the.“defendant, and at her request, in various suits brought by and against her as such administratrix, and that McKnight died before the bringing of the suit, leaving the plaintiff the sole surviving member of the firm.” An itemized account of the services and their value, is attached to the bill. The defendant waived process, entered her appearance, and by consent of the parties the case was set for trial on a particular day, when the parties appeared before the justice, and the trial took place, which resulted in a judgment for the plaintiff. The judgment is in the following form: “It is this day day considered and adjudged by me that the plaintiff recover from the defendant, the sum of one hundred and fifty-two ($152.00) dollars debt and three dollars and five cents costs.” The justice’s transcript then shows that:
    “Thereupon the same day came Elizabeth J. Thomas by her attorneys, Young & McBeth, and gave written notice of appeal to the common pleas court of Brown county, Ohio, and it. appearing that said Elizabeth J. Thomas, as administratrix of the estate of David Thomas, deceased, has givén ample bond in the probate court of Brown county, Ohio, as such administratrix, no appeal bond is required. ”
    In due time, the defendant to perfect the appeal, filed in the court of common pleas of Brown county, the transcript of the docket entries of the justice, and the original papers, but gave no appeal bond; and that court, on motion of the plaintiff, dismissed the appeal, for the reason that no bond for the appeal had been given.
    The defendant excepted, and prosecuted error to the circuit court, where the judgment of the court of common pleas was affirmed. ■
    Error is prosecuted here to obtain the reversal of both judgments.
    
      Young & McBeth, for the plaintiff in error.
    No brief for defendant in error.
   Williams, J.

The single question for adjudication in this case is, whether an undertaking was necessary to perfect the appeal taken by the defendant from the judgment of the justice of the peace? , The jnstices’ code requires, in all cases of appeal,, that the appellant shall enter into an undertaking with sureties to be approved by the justice, conditioned for the prompt prosecution of the appeal, and the satisfaction of the judgment rendered by the appellate court. Revised Statutes, section 6584.

Section 5228 provides that, “ a' party in any trust capacity, who has given -bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal.” This section, however, in view of all its provisions, seems applicable only to appeals from the court of common, pleas to the circuí t court. But, section 6408, contains the general provision, that “when the person appealing from any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written notice to the court of his intention to appeal within the time limited for giving bond.” The provision just quoted is applicable to appeals from justices of the peace, and dispenses with the necessity of an undertaking for an appeal from their judgments, in eases within its scope, namely, where the appellant is a party to the judgment in a fiduciary capacity, and the appeal is in the interest of the trust; so that, the inquiry here is, whether the defendant’s appeal presents a case of that kind. We think it does not. The judgment is not against the defendant in her fiduciary character. Though described in the proceedings as the administratrix of her intestate’s estate, ’the judgment rendered is not a judgment de bonis intestatoris, her designation in the proceedings, as administratrix, being descriptive of her person, merely, and execution issued upon the judgment can run only against her property. Beside, the obligation upon which the judgment was rendered was the personal obligation of the defendant, and created no liability against the estate. The general rule is, that when the cause of action upon which a personal representative is sued, arises in the lifetime of his decedent, or afterward, upon an obligation of the deceased, the liability is that of the estate, and the representative is bound only so far as assets come to his hands applicable to its satisfaction; but upon contracts made by the personal representative, though for services and expenses necessary in the due execution of his trust, he is individually liable, for he is without authority to bind the estate by his promise. In the case of Austin v. Munro, 47 N. Y., 360, 366, it is said: “The rule must be regarded as well settled, that the contracts of executors, although made m the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold and delivered, or other consideration moving between the promisee and the executors as promisors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the services rendered, or goods or property furnished, or other consideration moving from the promisee, are such that the executors could properly have paid for the same from the assets, and been allowed for the expenditure in the settlement of their accounts. The principle is, that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. ’ ’ This doctrine is well established. Woerner on ■ Administration, section 356; Williams on Executors, p. 1776; Waldsmith v. Waldsmith, 2 Ohio, 156; Howard's Adm'r v. Powers, 6 Ohio, 92; Taylor v. Mygatt, 26 Conn., 184; Luscomb v. Ballard, Executor, 5 Gray, 403; Wait v. Holt, 58 N. H., 467; Page's Estate, 57 Cal., 238; In re Moore, 72 Cal., 335, 342. In a class of cases, where the personal representative has received money or property belonging to another person, and used it in the payment of the decedent’s debts, or otherwise for the benefit of the estate, as, where he collected rents which belonged to the widow or heirs, and administered them as assets, and other cases of like character, it has been held that the person entitled to the money or property, may, at his election, look to the estate, and charge the representative in his trust capacity, or resort to his individual liability. Conger v. Atwood, 28 Ohio St., 134, is a case of that kind, and other cases of the same kind are cited in the opinion of the court in that case.

These eases recognize the general rule as we have stated it, and may be regarded as creating an exception to it, involving another principle, analogous to the right of the owner to follow the fund into which his money or property has been converted. But a claim for professional services rendered under employment by the personal representative, does not appear to be within the exception. While it is undoubtedly the rig-ht, and in most cases the duty of such representatives to employ counsel to advise and assist them in the performance of their official duties, it cannot be determined that the services rendered by the counsel, or their value, constitute a part of the fund in the hands of the representative, however important and valuable those services may have been in collecting the assets, or resisting unjust claims against them. The law contemplates that the representative will himself pay the value of such services, and be reimbursed, by receiving credit for the amount paid, in the settlement of his accounts. Such items constitute a part of the expenses of administration, which, together with the funeral expenses, take precedence, under our statute, of all other demands. Revised Statutes, section 6090. In that way the estate may be interested in the amount allowed and paid for counsel fees, but it is not interested in a judgment for them recovered against the representative, for, although the judgment is conclusive against the defendant, it has not that effect against the estate, or those beneficially interested in it. Any one interested in the estate may appear in the court having in charge the settlement of the administration account, and oppose 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 can be allowed credit only for counsel fees which he has actually paid, and no more than is 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. And see Wait v. Holt, 58 N. H., 467. So' that, a judgment against the representative, for such services, establishes nothing against the estate he represents or the persons interested in itand an appeal by him from the judgment is not an appeal in the interest of the trust, but in his individual interest. In some instances it may seem unjust to hold the personal representative liable beyond the amount for which he.receives credit in the settlement of his accounts, and we see no reason why he may not, by agreement .with his counsel, limit his liability to such sum; but in the absence of a stipulation of that kind, he may be compelled to pay the judgment recovered against him, notwithstanding it exceeds the credit he receives. It follows that the judgment recovered against the defendant must be treated as a judgment against her in her individual, and not in her representative capacity, and, therefore, an undertaking was necessary to perfect her appeal, and for want of'it, the appeal was properly dismissed.

Judgment affirmed.  