Stephens v. Cassity

BROADDUS, J. The plaintiff began his suit in the circuit court against the defendant as executor under the will of one Presley Pound, deceased, for compensation for services as an attorney and counselor at law rendered said executor in his management as such of said estate. A petition was filed setting out the facts to which a demurrer was interposed which the court sustained on the ground that it bad no jurisdiction of the case. The plaintiff appealed, and contends here that the court-below committed error in sustaining said demurrer, citing certain decisions of the Supreme Court of Missouri to uphold his contention, to-wit: Gamble v. Gibson, 59 Mo. 585, and State ex rel. v. Tittman’s Admr., 103 Mo. 553. The first, on the question, only holds that an administrator or executor may avail himself of the aid of legal counsel for the value of whose services he may charge and credit against the estate in his hands. The second decides that taxes accruing on a personal estate in the hands of the administrator after the death of the deceased are demands against his estate within the meaning of the law, and may be established as such either before the piábate or circuit court. Neither case has any application to the question under consideration here. The plaintiff’s demand is not, strictly speaking, a claim against the decedent’s estate but one against the executor thereof. Legal services rendered an administrator or executor are but expenses of the administration and should be allowed as such only, and until they are so allowed they do not become demands against the [213] estate of the decedent. And the probate courts only have jurisdiction to adjudicate such matters on settlements made with administrators and executors. R. S. 1899, sec. 223. Section 191, idem, is intended to give to circuit courts jurisdiction to establish demands against the estate of deceased persons and can in no sense be construed as conferring jurisdiction to adjust the claims of the executor or administrator for his services and expenses against the estate in his hands. The sole jurisdiction in that matter is in the probate court. The cause is affirmed.