cede credit or allowance for the same.29 But should the personal representative die before making payment, the rule would be otherwise.30 In other jurisdictions, however, it is not necessary that payment be first made by the representative to the attorney, his obligation to pay being sufficient, and the court may, upon final settlement but in advance of actual payment, determine what amount shall be allowed the representative for attorney fees.31 This is a matter, however, which may be regulated by statute, or the rule may be determined by the wording of the statute authorizing attorney fees.32

§ 1561. Allowance for Attorney Fees Is Limited to Reasonable Value for Necessary Services, Unless Fixed by

Statute.

The mere fact that the personal representative employed an attorney who rendered services in connection with the administration of the estate, and that the representative paid such attorney a given amount as the agreed value between them of such services, does not justify the probate court in giving the representative credit therefor or in making an allowance to him as reimbursement for the expenditure. In some jurisdictions by statute the fees of the attorney and of the representative for services rendered in connection with the routine matters of administration are the same, but additional compensation may be allowed either for special

29 Bates v. Vary, 40 Ala. 422, 441; Matter of O'Brien, 5 Misc. Rep. (N. Y.) 136, 25 N. Y. Supp. 704; Matter of Spooner, 86 Hun (N. Y.) 9, 33 N. Y. Supp. 136.

30 Pennie v. Roach, 94 Cal. 515, 29 Pac. 956, 30 Pac. 106.

31 Estate of Dudley, 123 Cal. 256, 257, 55 Pac. 897; Estate of Straus, 144 Cal. 553, 556, 77 Pac. 1122; Appeal of Manderson, 113 Pa. St. 631, 6 Atl. 893.

32 Jackson v. Leech's Estate, 113 Mich. 391, 71 N. W. 846.

services.38 Except as its action is fixed by statute, the probate court will allow or give credit for attorney fees only to the extent that such services were necessary and only to the amount of the reasonable value of such services, irrespective of any agreement between the representative and the attorney. Where the representative claims an allowance for fees paid to his attorney, the necessity of the services rendered and the reasonableness of the charge may always be inquired into.34 The representative will be allowed credit for attorney fees only when the services were necessary and were rendered for the benefit of the estate.35

Where the amount which may be allowed as attorney fees is not fixed by statute, the burden of proof rests upon the representative to show the necessity of the services and the value of the fees for which an allowance or credit is claimed.36 But it does not necessarily follow that the representative must have been successful in all matters regarding which he employed an attorney, for if he institutes or defends suits in good faith and upon reasonable cause, he will be entitled to counsel fees irrespective of his success in the matter.37

33 See Cal. Code Civ. Pro., §§ 1616, 1619.

34 Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Estate of Moore, 72 Cal. 335, 13 Pac. 880; Estate of Munger, 168 Iowa 372, Ann. Cas. 1917B, 213, 150 N. W. 447; Matter of Hosford, 27 App. Div. (N. Y.) 427, 50 N. Y. Supp. 550; Fairbairn v. Fisher, 58 N. C. 385; Thomas v. Moore, 52 Ohio St. 200, 39 N. E. 803.

85 Brandon v. Hoggatt, 32 Miss. 335.

See, also, §§ 1546, 1547.

36 Munden v. Bailey, 70 Ala, 63; In re Davis' Estate, 33 Mont. 539, 88 Pac. 957; Matter of Hosford, 27 App. Div. (N. Y.) 427, 433, 50 N. Y. Supp. 550; In re Mills' Estate (Knight v. Hamaker), 40 Ore. 424, 67 Pac. 107.

37 Noble v. Jackson, 124 Ala. 311, 26 So. 955,

Where the statute fixes the amount of compensation which the attorney for the personal representative shall receive, the court has no power to increase the amount. In such a case, however, there is nothing to prevent the representative from contracting with the attorney to perform the required legal services for an amount less than that fixed by the statute, in which event the allowance to the representative should not exceed that which the attorney receives; but if the agreement is that the attorney shall receive the full amount allowed by law, the probate court has no authority to reduce it.88

§ 1562. Effect of an Agreement as to Attorney Fees.

Whatever agreement the personal representative may make with the attorney as to the amount which the latter shall receive as fees, the sole question for the court is the necessity of the services and the reasonable value thereof. The question as to what the attorney shall receive from the personal representative is a matter regarding which the probate court has no jurisdiction, and is entirely dependent upon the agreement between the parties.39 If the amount which the attorney is to receive has been fixed by agreement between the representative and the attorney, the representative is liable to the attorney for that amount even though the court allows a lesser sum.40 And if the representative is answerable to the attorney for the reasonable value of his services, the allowance made by the probate court for attorney fees is not conclusive upon the attorney, and he

38 Estate of Goodrich, 6 Cal. App. 730, 734, 93 Pac. 121.

39 Estate of Kruger, 143 Cal. 141, 145, 76 Pac. 891.

See, also, Estate of Davis, 31 Mont. 421, 78 Pac. 704.

40 Sullivan v. Lusk, 7 Cal. App. 186, 94 Pac. 91, 92; Estate of Kruger, 143 Cal. 141, 146, 76 Pac. 891.

may recover from the representative more than the amount allowed, provided the allowance is not reasonable. But if the attorney has any claim upon the personal representative by reason of a contract for services, he must look to him as an individual and not in his representative capacity.2 The personal representative may protect himself against personal liability by an agreement with the attorney that the latter will accept as compensation the amount allowed by the court. This might bind the representative to apply to the court for an allowance for attorney fees, or render him liable for their reasonable value if he failed to do so; but the probate court has authority to decide what fees for counsel shall be paid out of the estate.43

§ 1563. As to Allowance for Fees Where Representative Acts also as Attorney.

An executor or administrator who is also a lawyer should exercise his professional skill in the performance of his duties. He is not required to perform special services as an attorney, but he should not employ legal assistance where there are no legal complications." An executor or administrator can not employ himself as a lawyer and recover from himself in his representative capacity the value of legal services which he may render. If the personal representative is also an attorney, the general rule is that he is not entitled to an allowance to himself individually for fees because of services rendered

41 Estate of Scott, 1 Cal. App. 740, 747, 83 Pac. 85; McKee v. Soher, 138 Cal. 367, 370, 71 Pac. 438, 649.

42 Sullivan v. Lusk, 7 Cal. App. 186, 94 Pac. 91, 92; McKee v. So

her, 138 Cal. 367, 370, 71 Pac. 438, 649.

43 Estate of Kruger, 143 Cal. 141, 145, 76 Pac. 891.

44 Noble v. Whitten, 38 Wash. 262, 80 Pac. 451,

by himself as an attorney.15 The same rule applies where legal services are rendered by the firm of which the personal representative is an active member and in the earnings of which he participates. However, there is

no objection to the personal representative employing his legal partner or associate to perform services which are separate and distinct from the partnership or association, and where the personal representative is to have no interest in nor receive any part of the fees earned under the employment. In such a case it is In such a case it is proper that the representative be allowed credit for the fees paid.47

The foregoing rule is not absolute, nor should it be applied in all cases. If the statute fixes the amount of compensation which an executor or administrator shall receive, such as a percentage varying with the value of the estate, his compensation should not exceed such amount even though the estate is benefited because of legal services which he renders personally as an attorney. In many jurisdictions, however, the compensation of the personal representative is fixed by the probate court according to the reasonable value of the services rendered, in view of all the circumstances of the case and the value of

45 Doss v. Stevens, 13 Colo. App. 535, 59 Pac. 67; Gray v. Robertson, 174 III. 242, 250, 51 N. E. 248; Collier v. Munn, 41 N. Y. 143; In re Lester (In re Hull's Will), 172 App. Div. (N. Y.) 509, 158 N. Y. Supp. 763.

Contra: Morgan v. Nelson, 43 Ala, 586, 587.

In an action by an administrator for damages for the death of his decedent, his duties as assistant district attorney are within

the scope of his duties as administrator, and he can not make a contract with his attorneys for additional compensation as assistant attorney in the case.-In re Evans, 22 Utah 366, 83 Am. St. Rep. 794, 53 L. R. A. 952, 62 Pac. 913.

46 Taylor v. Wright, 93 Ind. 121. 47 Parker v. Day, 9 Misc. Rep. (N. Y.) 298, 30 N. Y. Supp. 267; s. c., 155 N. Y. 383, 49 N. E. 1046; Matter of Simpson, 36 App. Div. (N. Y.) 562, 564, 55 N. Y. Supp. 697.