
    Succession of Allen J. Key.
    The acknowledgment of the correctness of an account is not conclusive against the correction of gross errors in fact, or mistakes as to the legal rights of the parties.
    An executor who is also an attorney at law will not be allowed to charge for his services as attorney, nor can he obviate this by charging the fees as due to other lawyers who never in fact attended to the business.
    APPEAL from the District Court of St Mary. Voorhies, J. The judge of the district court decided as follows: “ Thomas E. Bowles was formerly appointed executor under the will of Alien J. Key, deceased, whose succession was opened in the month of March, 1844. A judicial sale of all the property of the succession was made on terms of credit during the executorship of Bowles. Previous to the maturity of the last term Bowles died without having rendered any account of his administration. On the 3d of September, 1841, Thomas Maskell was appointed curator. On the 2d of July, 1849, he was dismissed from his office as curator, and ordered to render an account of his administration. The opposition of the heirs to the account rendered under this order, constitutes the subject matter in litigation.
    “It is proper in the first place to notice some of the acts of the curator preceding the rendition of his account. On the trial, he has introduced an account certified to be correct by John B. Conrad, as attorney of the absent heirs. The certificate of Conrad bears no date. The following memorandum appears in the body of said account. “ These credits are allowed as per agreement between me and some of the heirs as per contract of settlement made and signed in triplicate, at Franklin, April 20th, 1844.” Hence, it is obvious that the certificate must have been given subsequently to the 26th of April, 1844, the date of the agreement; at all events there is no evidence to the contrary. The account could not, therefore, have been the basis of the agreement. But be this as it may, it is nevertheless ti-ue that the sum of $2299 61, specified in said agreement, which has also been introduced in evidence, for debts, charges and expenses, corresponds precisely with the aggregate of the debts, charges and expenses detailed in said account, and also constitute the same items now in controversy. The curator was authorized, under said agreement, to retain in his hands the sum of $1240 41, until the adjudication of the court on Polly Bed-good’s right of heirship, which was contested on the ground of her illegitimacy; and also the sum of $500, the legacy in favor of the emancipated slaves under the will of said Key. The right of heirship of Polly Bcdgood appears to be still unsettled. The legacy has never been paid over to the legatees. Since the removal of the curator Henry C. Wilson has been appointed dative testamentary executor. The charges and expenses embraced in said sum of $2299 61, constitutes the main, if not the only matter in controversy. It is, however, contended by the curator, that the agreement of the heirs in relation to said items is conclusive against them. I do not think so. The acknowledgment of tire correctness of an account is not conclusive against the correction of gross errors in fact, or mistakes as to the legal rights of the parties. 6 L. R. 204.
    “I shall now proceed to examine the various grounds of opposition in the order presented in said opposition.
    “1st. The correctness of all the items, except such as are to be specially noticed hereafter, has been satisfactorily established by the evidence.
    “2d. The claim of John B. Conrad, for services rendered as attorney of the absent heirs, being liquidated by the judgment of a competent tribunal, the payment of the same is, therefore, legal, and cannot be questioned in this cause.
    “3d. The claim of the curator for counsel fees, amounting to the sum of $1563, is resisted, on the ground that the same is exhorbitant and illegal. The services were rendered by the curator, and not by Simon and Maskell, as specified in the account; he alone claims the benefit of said fees. It was admitted on the trial by the curator, that Judge Simon had never been employed in any of the cases in which said fees are charged. In the case of Baldwin’s Executor v. Carleton, 15 L. R. 399, the couit virtually adopted the English rule, that an executor who is also a professional man, and renders legal services to the estate he administers, is not entitled to any separate compensation, The reason of the rule is that the best counsel should be selected and employed on the best terms. Judge Martin, in delivering the opinion of the court, remarked, that it was the duty of the executor to make such selection; “but it was his interest in this case that he should be employed at all events, and, as his conduct has shown, on the very highest terms. In our opinion, he succumbed to the temptation.” It is urged by the curator, that no action lies to recover what has been paid or given in discharge of a natural obligation. This is conceded. But it can hardly be contended, that the funds retained in his hands as curator, in compensation of his claim for counsel fees, can be considered as a payment. Hud the heirs received the funds, and then made the payment to the curator, the principle contended for might be applicable. The claim of the curator for counsel fees must therefore be rejected.
    “4th. This ground of opposition has already been settled.
    “5th. The curator is only entitled to commission on $11318 35, the amount of the inventory made on the 3d of September, 1841. Instead of $294 41, his commission must therefore be reduced to $282 94. C. C. 1062. '
    “6th. The share of each of the heirs can only be ascertained after the f mu liquidation of the succession, fixing the nett amount of the funds to be liv. ■<, among them. Nancy L. Key, the nieceof the testator, is entitled to aim - ¡ blunder the will. Polly Bedgood, a sister by the half blood of the te-'- ■ . ■- represented to be illegitimate, and not entitled to inherit. Her portion must therefore be reserved, and paid over to the dative testamentary executor, subject to the further action of the court. Her portion must be fixed according to the provisions of article 909 of the Civil Code — to wit, one fourteenth of the nett amount of the active mass, there being six roots, including Nancy L. Key, of the paternal and maternal lines. The amount received by each of the heirs from the curator, must be deducted from their respective shares thus ascertained; and in case said curator shall have overpaid any of them,- he shall be accountable for the surplus as having paid the same without any legal authority.
    “7th. The principles laid down in the 6th ground of opposition are applicable to this.
    “8th. The curator is bound to account for and pay over to the heirs the amount of their respective share’s, deducting therefrom what he has already, paid over to them, and to account for and pay over to Henry C. Wilson, as dative testamentary executor, the sum of $500 — the amount of the legacy in the will, and the amount reserved to meet the contingent shares of said Polly Bedgood.
    
    “9th. For ought that appears to the contrary, the curator has given credit for all the funds to which the succession is entitled.
    “10th. The curator must allow interest on all sums in his hands, according to the decree of the 2d of July, 1849. ■
    “It is therefore ordered, adjudged and decreed, that the'account thus rendered, with the foregoing modifications and amendments, be and the same is hereby homologated.”
    
      Thomas Maskell, for appellant. W. C. Dwight, for appellees.
   The judgment of the court was pronounced by

Slidell, J.

In this case the district judge has given at length the reasons for his decree, and we fully concur in the conclusion to which he arrived. We are clearly of opinion, that the heirs ought not to be held to the settlement made in ignorance of the time state of facts. And we deem it our duty to remark, in addition to the fact that Mr. Simon was not professionally employed, (as was represented by the curator to the heirs,) that a portion of the charges illegally made by the curator in his own favor, under the name of Simon and Maskell, appears to us exhorbitant.

' Judgment affirmed, with costs.  