the attorney with funds of the estate which the latter misappropriates.17

Where there are two or more executors, and attorneys have been employed by each, the probate court has no authority to apportion the money between the various attorneys; but it does have the power to allow to each executor a designated sum as attorney fees.18 Where there are several executors, the act of the majority can not deprive one of them of the assistance or advice of counsel. Where there are three executors it may be true that the estate is put to additional expense by reason of the number of attorneys employed, but that was a matter for the consideration of the testator at the time of making his will. If the testator commits the administration of his estate to three executors in whose judg ment and integrity he has confidence, it certainly was not his intention that one of them should be ignored and not be allowed expenses for the services of counsel which are claimed by the others. 19

§ 1558. Representative Is Personally Liable to Attorney for His Services.

In the absence of a statute fixing the fees of the attorney for the personal representative and directing that they be paid out of the estate, the rule is that the representative employing the attorney is personally liable to him for his services, it being the debt of the representative and not of the estate. Reasonable and necessary counsel fees are proper expenses of administration and

17 Estate of Ogier, 101 Cal. 381, 385, 40 Am. St. Rep. 61, 35 Pac. 900.

18 Estate of Scott, 1 Cal. App. 740, 746, 83 Pac. 85.

Compare: Estate of Dudley, 123 Cal. 256, 55 Pac. 897.

19 Estate of Scott, 1 Cal. App. 740, 746, 83 Pac. 85.

the representative is entitled to credit or an allowance, upon the settlement of his final account, for such fees, but this does not alter the rule that the representative is personally liable and that the attorney must look solely to the representative for compensation.20 Where one of several coexecutors employs an attorney with the knowledge and consent of the others, they are all personally liable;21 and where they jointly employ an attorney, they are jointly liable for his services.22

The fees of an attorney for services rendered the personal representative constitute an expense of administration which the representative must pay the same as

20 Pike v. Thomas, 65 Ark. 437, 47 S. W. 110; Tucker v. Grace, 61 Ark. 410, 33 S. W. 530; Estate of Ogier, 101 Cal. 381, 40 Am. St. Rep. 61, 35 Pac. 900; McKee v. Soher, 138 Cal. 367, 71 Pac. 438, 649; Estate of Kruger, 143 Cal. 141, 76 Pac. 891; Brown v. Quinton, 80 Kan. 44, 102 Pac. 242; Baker v. Moor, 63 Me. 443, 18 Ann. Cas. 290, 25 L. R. A. (N. S.) 71; Clopton v. Gholson, 53 Miss. 466; State v. Second Jud. Dist. Court, 25 Mont. 33, 63 Pac. 717; Wait v. Holt, 58 N. H. 467; Austin v. Munroe, 47 N. Y. 360; Parker v. Day, 155 N. Y. 383, 49 N. E. 1046; Kessler v. Hall, 64 N. C. 60; Besanson v. Wegner, 16 N. D. 240, 112 N. W. 965; Thomas v. Moore, 52 Ohio St. 201, 39 N. E. 803; Waite v. Willis, 42 Ore. 288, 70 Pac. 1034.

In California, by amendment to the statute, Code Civ. Pro., §§ 1616, 1619, attorneys for personal rep

resentatives shall be allowed out of the estate as fees for conducting the ordinary probate proceed. ings, the same compensation as is allowed by statute to the personal representative. Further allowances may be made to either for extraordinary services.

Where an administrator enters into a contract employing an attorney without the consent of the probate court, the contract binds him but not the estate.-Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 225.

Contracts for attorney's fees between an administrator and an attorney are made at the administrator's risk that they be approved and the amounts paid be allowed by the probate court.-State v. District Court, 53 Mont. 210, 162 Pac. 1053.

21 Long v. Rodman, 58 Ind. 58. 22 Mygatt v. Wilcox, 45 N. Y. 306, 6 Am. Rep. 90.

other expenses. It is a charge incurred by the representative for which he may be credited in his account, or an allowance may be made him by the court for the purpose of paying the fees of his attorney. The court fixes the amount of the allowance or gives credit according to the value of the legal services, where the amount of such compensation is not prescribed by statute. In the absence of a statute to the contrary, the rule is that the representative is liable to the attorney for services rendered, and that it is not proper for the probate court to direct payment directly out of the estate to the attorney. If an allowance is made for attorney fees, it is made to the representative.23 Where, however, the personal representative is insolvent so that the attorney can not enforce his claim for fees against him, equity will grant him relief against the estate for the benefit of services he has rendered it,24 but such relief will be granted only where the representative is not indebted to the estate.25

23 Matter of Levinson, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479; Fitzsimmons v. Safe Deposit & Trust Co., 189 Pa. St. 514, 42 Atl. 41.

24 Pike v. Thomas, 65 Ark. 437, 47 S. W. 110; Clopton v. Gholson, 53 Miss. 467.

If an administrator die without paying his attorney for legal services, an allowance may be made for their value in favor of his personal representative. — Pennie v. Roach, 94 Cal. 515, 29 Pac. 956, 30 Pac. 106.

§1559. Personal Representative Entitled to Credit or Allowance for Attorney Fees.

It is a recognized principle that the estate of a decedent must bear the expenses of administration, and if one person interested in the estate, at his own expense and for the benefit of others as well as for himself, preserves the estate from destruction, he should be reimbursed either out of the trust funds or by contribution from interested parties.26 Trustees who act in good faith and solely for the benefit of those interested in the trust fund should not be compelled to personally bear the expense of costs and counsel fees incurred in litigation in which they act only in a representative capacity, and they are entitled to credit from the trust fund for the expenses so incurred.27 If the personal representative of an estate has sufficient funds of the estate in his hands, and which are not appropriated for other purposes, he may use them in defraying the ordinary expenses of administration. If he advances his own funds for such purposes, he will be reimbursed upon the settlement of his account. Counsel fees necessarily incurred regarding litigation of the estate are expenses of administration, the difference between them and routine expenses being that the former are allowed only when necessary, when incurred in good faith, and are proper charges only to the extent of their reasonable value, which is a matter for the court to determine. If the personal representa

26 Kimball v. New Hampshire Bible Society, 65 N. H. 139, 161, 23 Atl. 83, 85.

To the same effect see: Trustees of Improvement Fund V. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Harrison v. Perea, 168 U. S.

311, 325, 42 L. Ed. 478, 18 Sup. Ct. 129; Taylor v. Minor, 90 Ky. 544; In re Weed's Estate, 163 Pa. St. 600, 30 Atl. 278.

27 Estate of Cole, 102 Wis. 1, 72 Am. St. Rep. 854, 78 N. W. 402.

tive is compelled to expend moneys for costs and counsel fees in order to collect or protect the assets of the estate or to properly perform his duties, he is entitled to reimbursement. Generally he has no interest in the subjectmatter outside of the performance of his duty, and he owes no duty to the beneficiaries to expend his own funds for their benefit. Expenditures for counsel fees, to the extent that they are necessary and reasonable, are proper expenses of administration and the personal representative is entitled to be reimbursed therefor. Such disbursements should be included in the final account of the representative and the probate court should give him credit for the amount so expended. In those jurisdictions where prepayment of counsel fees by the representative is not a prerequisite to their allowance, the court, upon settling the final account of the representative, may make him an allowance for attorney fees in order to pay his counsel for services performed.28

§ 1560. As to Actual Payment of Attorney Fees Prior to Allow

ance.

There is a conflict of authority as to whether a personal representative is entitled to an allowance for attorney fees prior to their actual payment by him. In some jurisdictions it is held that payment of such fees must pre

28 Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590; Reynolds v. Canal & Banking Co., 30 Ark. 520; Matter of Moore, 72 Cal. 335, 13 Pac. 880; Estate of Kruger, 123 Cal. 391, 55 Pac. 1056; Brown v. Eggleston, 53 Conn. 110, 2 Atl. 321; Estate of Meeker, 45 Mo. App. 186; In re Jamison's Estate, 190 Mo. App. 638, 176 S. W. 271;

Reilly v. Porcher, 46 App. Div. (N. Y.) 290, 61 N. Y. Supp. 662; Young v. Brush, 28 N. Y. 667; Attorney General v. North American L. Ins. Co., 91 N. Y. 57, 43 Am. Rep. 648; In re McGannon's Estate, 50 Okla. 288, 150 Pac. 1109; Steel v. Holloday, 20 Ore. 462, 26 Pac. 562.