In re the Estate of Forney

By the Court, Sanders, C. J.: 1. This is the administrator’s second appeal in the matter of this estate. He bases his present appeal upon two assignments of error: First, that the court erred in holding and in ruling that an order made and entered in the original administration proceedings, without notice to or knowledge of the appellant or his counsel, fixing their fees, was conclusive upon them. Second, the court erred in holding and in ruling that the services rendered by appellant’s attorney upon the former appeal were those of a volunteer, for which he is entitled to no compensation. The first assignment of error is without merit. The second assignment involves the question whether W. E. Pruett, as public administrator of the estate of Charles F. Forney, deceased, had such an appealable interest in the matter determined by the decree of distribution of said estate as entitled his attorney to compensation for his services rendered therein. For the determination of this question it is unnecessary to review the merits of the former appeal, or to discuss the facts upon which the decision is based. 43 Nev. 227, 184 Pac. 206, 186 Pac. 678. It is sufficient for the purposes of this appeal to determine whether the administrator’s only remaining duty, in the particular case made upon the former appeal, was to deliver the moneys of the estate over to the person designated by the lower court. 2. In Re Heydenfeldt, 117 Cal. 551, 49 Pac. 713, it is held that an administrator can appeal in general, unless “his only remaining duty is to deliver the estate over to [284] those designated by the court.” Tested by this rule, if the lower court, in the exercise of its probate jurisdiction in the matter of the distribution of the personalty of the estate of Charles F. Forney, deceased, was not authorized by law to order the administrator to deliver the moneys of the estate over to the distributee claimant, because of her incapacity to Succeed, and because the property was legally situated at the domicile of the intestate, to wit, California, the administrator had a perfect right to have the decision and decree examined into on appeal before complying with the court’s order. 3. The decision upon the former appeal, supplemented by the opinion upon petition for rehearing (43 Nev. 227, 186 Pac. 678) is to the effect that, while the lower court had jurisdiction over the claimant and the subject-matter, it was not clothed with legal authority to distribute the. personalty of the intestate in the particular case under the lex situs. The lower court had authority to distribute the fund, but it could only dó so in accordance with the provisions of the lex domicilii. The court also decided that the illegitimate child of the intestate, claiming the right to succession, must establish her right by the law of the domicile. 4. The provisions and prohibitions of the law. of the domicile were conclusive upon the court. Therefore it not only erred, but exceeded its jurisdiction in distributing the fund of the estate under the léx situs, and the administrator had the right, for his own protection, to litigate the court’s power and authority to compel him to do something which the prohibitions of the law of the domicile precluded the court from doing. In the exhaustive and able opinion of Justice Bonnifield, in the Matter of Foley’s Estate, 24 Nev. 197, 51 Pac. 834, the court applied a rule applicable to the particular case upon the former appeal in the Matter of Forney’s Estate, namely: “ ‘The court may have jurisdiction of the subject-matter, and of the parties, and yet the particular judgment rendered in the particular case may be void [285] because in excess of the jurisdiction of the court. The judgment rendered must be one that is authorized by law in the class of cases to which the case before the court belongs.’ Works on Jurisdiction of Courts, sec. 8. “A judgment may be both erroneous and void. Id.” 5. We concede the lower court’s jurisdiction, in Forney’s estate, over the subject-matter and the heir claimant, but in rendering the particular judgment in the particular matter then before it, it exceeded its jurisdiction, and the administrator was an aggrieved party, in the sense that he was not required by law to do an act which the court was not authorized by law to order him to do. Uninfluenced by the fact that the fund of the estate was liable to escheat to the State of Nevada, the court’s order afforded the administrator no protection whatever, and he was therefore entitled to prosecute his appeal. 6. We concede that an estate cannot be held liable for counsel fees arising out of litigation between the beneficiaries thereof among themselves, or in the protection of the interests of particular persons, for such expense is properly chargeable to the interest or persons specially benefited. Am. Law of Adm. (2d. ed.) sec. 516. But we are unable to perceive in what respect this rule has any bearing upon or application to the class of cases to which the case made upon the former appeal belongs.. Entertaining these views, it follows that the court erred in holding and ruling' that the services of the administrator’s attorney upon the former appeal were those of a volunteer, for which he is entitled to no compensation. . The order disallowing the application of the administrator for counsel fees for his attorney’s services rendered upon the former appeal is reversed.