administrators is a subject for determination upon settlement of the final account and is appealable on the ground that it is a final adjudication as to such allowance: In re Doane's Estate, 64 Wash. 303, 116 Pac. 849.

Section 1616 of the Code of Civil Procedure as amended in 1911 contemplates an allowance to an executor or administrator on account of his commissions before the administration is completed, and this rule is applicable to an executor who dies or is removed, as well as to one who continues in office: Estate of Jones, 166 Cal. 147, 135 Pac. 293. (See page 1135.)

6. Renunciation. Waiver. (See page 1136.)

REFERENCES.

As to right to extra compensation for extraordinary services, see note in Ann. Cas. 1913A, 87.

7. What should be allowed. Usually the only services for which an administrator or executor will be allowed compensation are such as are beneficial to the estate. This, however, does not mean that when the result of services undertaken in good faith is not of pecuniary or other benefit, but rather results in loss, such services should not be compensated: In re Lichtenberg's Estate, 58 Wash. 585, 109 Pac. 49. (See page 1136.)

Commissions based on amount of estate accounted for held not allowable until settlement of final account: In re Hite's Estate, 155 Cal. 448, 101 Pac. 448.

8. What should not be allowed. (See page 1138.)

9. Further allowance. Extra services. If an executor undertakes the management of the estate on behalf of the heirs and loss results he is chargeable with that loss. If upon the other hand, profit over and above normal results from his endeavors he is entitled to an allowance from the estate by way of compensation for extraordinary services under section 1618 California Code of Civil Procedure: Estate of Broome, 162 Cal. 258, 122 Pac. 470.

Under provisions in a will embodied in the decree distributing the testator's estate, directing that the trust estate shall be held by the trustee "for a period of five years from and after the date of the entry of this decree of distribution" and that the trustees shall receive a fixed annual compensation "during the full term of their trusteeship," the trustees are entitled to receive such compensation for the period of five years only. If by reason of the failure to formally enter the decree of distribution immediately upon its rendition, or for other reasons the duration of the trust is prolonged, the right of the trustees to compensation for the additional time should not rest upon the terms of the trust, but upon an award of the court in quantum meruit: Estate of Hanson, 159 Cal. 401, 114 Pac. 810.

In fixing the compensation of an executor the probate court may take into consideration the fact that he has performed services as a lawyer by which expense to the estate has been saved: Nelson v. Schoonover, Kan. Pac. 1184.

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The court properly disallowed the account of the administrator and his attorney for extra services. The allowance or disallowance of the same is within the discretion of the court, and its exercise in disallowing the account does not call for any revisory action by this court: Estate of Miller, 15 Cal. App. 557, 115 Pac. 329. (See page 1139.)

10. Co-executors. (See page 1140.)

11. Successive administrators. The apportionment allowed between joint or successive administrators and their attorneys under sections 1618 and 1619 of the Code of Civil Procedure applies only to cases of general administration: Estate of Miller, 15 Cal. App. 557, 115 Pac. 329. (See page 1141.)

12. Trustees. Under provisions in a will, embodied in the decree distributing the testator's estate, directing that a trust estate shall be held by the trustees "for a period of five years from and after the date of the entry of this decree of distribution," and that the trustees shall receive a fixed Probate Sup. 21.

annual compensation "during the full term of their trusteeship," the trustees are only entitled to receive the compensation fixed by the will for the period of five years. If by reason of the failure to formally enter the decree of distribution immediately upon its rendition, or for other reasons, the duration of the trust is prolonged, the right of the trustees to compensation for the additional term should rest not upon the terms of the trust, but upon an award of the court in quantum meruit: Estate of Hanson, 159 Cal. 401, 114 Pac. 810.

Where a petition by one of three trustees for a termination of the trust is successfully opposed by the others, the action of the resisting trustces must be held to have been the successful defense of the trust, and their legitimate and necessary disbursements in this regard, such as attorney's fees, are chargeable against the trust property: Estate of Hanson, 159 Cal. 401, 114 Pac. 810.

The fact that the court, upon the first accounting by the trustees, allowed them the compensation fixed by the will for a period of time intervening between the date of the rendition of the decree, when the trust actually commenced, and the date of the entry of the decree, is not determinative of their right to future compensation: Estate of Hanson, 159 Cal. 401, 114 Pac. 810. (See page 1142.)

13. Special administrators. (See page 1142.)

14. Appeal. (See page 1142.)

III. ATTORNEYS' FEES.

1. In general. (See page 1143.)

REFERENCES.

Right of executor to allowance for attorney's fee for services rendered in attempt to establish, or resist attack upon, will, see note 26 L. R. A. (N. S.) 757.

Liability of estate to attorney employed by executor or administrator, see 25 L. R. A. (N. S.) 72.

2. Province of court. The proper fee to be awarded attorneys in probate proceedings is a difficult matter to be determined. Hence it is one of those matters which must rest largely in the sound discretion of the trial court and should not be interfered with except for a manifest abuse of such discretion: In re Lichtenberg's Estate, 58 Wash. 585, 109 Pac. 49.

On application of attorney for compensation for other than ordinary probate services, court has same discretion as in allowing executor for fees by him already paid out: In re Hite's Estate, 155 Cal. 448, 101 Pac. 448. (See page 1144.)

3. Statutory provisions. Prior to the amendment of 1905 to section 1616, Code of Civil Procedure, the attorney of an executor or administrator was not a party interested in the estate of a deceased person and must look solely to the executor or administrator for his compensation, such officer being allowed credit on his accounting for such reasonable fees as he had paid his attorney: Estate of Hite, 155 Cal. 448, 101 Pac. 448.

Only purpose of Code Civ. Proc., Sec. 1616, authorizing attorney to apply for order allowing compensation for services rendered to representative, was to enable attorney to obtain compensation directly, and did not alter liability of estate: In re Hite's Estate, 155 Cal. 448, 101 Pac. 448. (See page 1145.)

4. Estate not chargeable. (See page 1146.)

5. Necessity of Notice. (See page 1148.)

6. What is no waiver of fee. (See page 1149.)

7. Personal liability for. Attorneys employed by an administrator to assist him in administering his trust, or to prosecute or defend an action for or against him in his official capacity, have no claim they can enforce directly against the estate. The administrator is individually liable for such services, and upon settlement of his accounts he may be reimbursed out of the estate for attorney's fees

necessarily paid out as expenses of administration: Brown v. Quinton, 80 Kan. 44, 102 Pac. 242. (See page 1149.)

8. What may properly be allowed. An attorney can obtain by an application for fees for legal services made under section 1616 of the Code of Civil Procedure only such sums as are properly allowable to the executor or administrator as necessary expenses in the discharge of his duties: Estate of Higgins, 158 Cal. 355, 111 Pac. 8.

Under exceptional circumstances the unsuccessful appellants from a decree of the supreme court of the Territory of Hawaii to the supreme court of the United States are allowed counsel fees and expenses from the estate: Fitchie v. Brown, 19 Haw. 411. (See page 1151.)

9. What can not be allowed. (See page 1152.)

10.

Reasonableness of fee. An allowance to an executor of $2500 for counsel fees in an estate appraised at upwards of $37,000 is not excessive: In re Witt's Estate, 72 Wash. 172, 132 Pac. 1013.

In an estate of $600,000, having regard to the amount and responsibility of the work done, an attorney's fee of $13,000 is excessive and $8750 is reasonable and adequate: Shufeldt v. Hughes, 55 Wash. 246, 104 Pac. 257. (See page

1154.)

12. Recovery of fee. (See page 1155.)

13. Recovery of more than amount allowed. (See page 1157.)

14. Appeal. An order directing the payment of attorney's fees incurred by an unsuccessful proponent of a will, payable out of the assets of the estate, is an order directing the payment of a claim against the estate, and under subdivision 3 of section 963, or under section 1616, Code of Civil Procedure, is an appealable order. Prohibition will not lie to restrain the making of such order: Mousnier v. Superior Court, 159 Cal. 663, 115 Pac. 221.