In re the Judicial Settlement of the Accounts of Maxwell

Kellogg, J.: The decree settling the accounts of Thomas F. Maxwell, as committee of the person and estate of John K. Cullin, an incompetent, now deceased, after passing upon the account as stated, provided that the “said Frederick E. Bowen is allowed the sum of $1,000 for his costs in this proceeding.” Mr. Bowen was the attorney of the petitioner, the accounting committee, but it did not appear from the account of said committee that he had paid to the said Frederick E. Bowen the sum of $1,000 for any services rendered in behalf of the estate, the court merely assuming to make the allowance “ for his costs in this proceeding.” Subsequently the learned county judge, on motion, amended the decree by striking out the words “That the said Frederick E. Bowen is allowed the sum of $1,000 for his costs in this proceeding,” and inserting in the place thereof “That the said Thomas F. Maxwell is allowed the sum of $1,000 for his counsel fees and costs in this proceeding.” The only effect of this amendment is to provide for the payment of $1,000 to the committee instead of to the attorney, and, of course, is of no practical importance to any one. The County Court has determined that $1,000 was a just compensation for such services. It is urged that the committee should have paid the attorney and brought the amount in as a disbursement and that there is error in its allowance as a cost of the proceeding. But the incompetent having died, all power of the committee ceased under section 2344 of the Code of Civil Procedure and the committee had no power as committee in determining the amount due to the counsel and could [140] not have paid the same from the funds of the estate. He could have paid-it from his own funds, if he had funds; but. if he had no funds of his own with which to pay his attorney that should not deprive the attorney of the right to pay for his services or the committee of the right to be reimbursed for the liability which he might be under therefor. It is not a matter of substance whether the allowance of $1,000 is under the name of costs or is under the name of disbursements made by the committee; the question is, is the amount just and is it a charge which may be brought against the estate. Clearly the reasonable compensation of the attorney for his services on the accounting is a just charge against the estate. The order shows that the allowance of $1,000 is as the costs of the proceeding and that the personal estate on hand at the accounting is $132,161.33. The record is not before us; we cannot judge as to the services actually rendered by the attorney; but the account made by the attorney was passed upon by that court and all the proceedings were before the court. It knew with reasonable certainty what the services of the attorney were in preparing the account and conducting the proceedings. It has determined that $1,000 was reasonable. The amount does not seem unreasonable, and there is no allegation that $1,000 was not fairly earned by the attorney. The appellants were present in court, were parties to the accounting, and they and their attorneys knew that the attorney for the committee was not acting gratuitously, and that the committee would be allowed his reasonable expenses for the settlement, and that payment of his counsel for his services was a necessary part of such allowance. If the amount was not stated in open court they had the right, and it was their duty if they wished to contest it, to have the matter discussed in court and the amount fixed after discussion. If it was so fixed, then they have had their day in court; if it was not- so fixed, it is as much their fault as that of the respondent or County Court. But, as we have said, the County Court knew what services had been rendered, and if neither counsel put in evidence upon that subject, it was fairly left to the County Court to determine upon the record before him. The determination was not unreasonable, and ought not to be defeated by technicalities. It is immaterial whether the allowance is [141] to the committee as an expense which he had paid or as an expense which he must pay. We are required upon appeal to disregard technicalities and to decide according to the justness of the case. There is nothing to indicate that the order is unjust in the respect in which it is criticized If there was surprise or mistake, and the defendant should nave a further opportunity to he heard as to the value of the attorney’s services, his remedy is to ask the County Court to reopen the order and not to appeal to this court. The order should be affirmed, with costs. All concurred, except Woodward, J., dissenting, in opinion.