
    No. 895
    FOLTZ v. BOONE
    Ohio Supreme Court
    No. 17616.
    Decided May 15, 1923
    To Appear in-Ohio State Reports
    174. EXECUTORS AND ADMINISTRATORS.
    Administrators may not charge estate with attorney fees and expenses for defending an action for specific performance of a contract by the decedent to make, a will. (For official Syllabus, see below.)
   ALLEN, J.

Epitomized Opinion

This is a proceeding by Boone, administrator oi the 'estate of Snyder, for allowance of his account Exceptions by Foltz to the account were sustainec on appeal to Comlmon Pleas of Columbiana county This judgment was reversed by the Court of Appeals. Snyder died intestate, leaving a nephew a! her only heir at law. Prior to her death, Snydoi lived with Foltz. Shortly after Boone was afl pointed administrator Foltz brought suit agains him, as administrator, and the nephew, alleging that Snyder had contracted to will Foltz the residue of her estate after the payment of debts and ‘ex penses in return for nursing and care of Snyder b; Foltz for the rest of Snyder’s life. In this aetioi the nephew was represented by counsel and the ad ministrator also employed counsel. The Court o Appeals found in favor of Foltz. Boone then file( an account in the Probate Court asking credit fo: $1,309 for attorney fees and expenses in the de fonce of the specific performance action. In sus taining the exceptions to the account and thereb; reversing the Court of Appeals and affirming th Common .Pleas, the Supreme Court held, in officia Syllabus, 22 Abs. 421:

1. “It is the duty of an administrator to preserv the assets of the estate, but it is not his duty t defend an action brought to decide who is entitle to the estate when the only heir at law is repr« sented by counsel in the same case and activel contests the action.”

Attorneys — K. L. Cobourn, Salem & DeFord, Hux-key & Smith, Youngstown, for Foltz; R. W. Campbell, Salem, and G. T. Farrel, Lisbon, for Boone.

2. “An administrator who defends an action for specific performance of a contract alleged to have been made by his decedent, to will the plaintiff all the residue of plaintiff’s estate in consideration of care and service for the rest of her life after payment of all debts and costs in a case in which the only heir at law is represented by counsel and actively contests the action, cannot, if unsuccessful in defending the action, charge the estate with attorney fees and expenses of litigation incurred in the contest.”

3. “There is a basic difference between a contract to make a will and a contract which creates a simple debt or ordinary obligation against the estate. Such a contract to make a will as Mary Snyder made, creates a right to the estate; the contract which creates a debt, creates a right to the assets of the estate.”  