1. John Kalbfell died on the 10th day of June, 1894, leaving a will in which he named Henry W. Kalbfell and Fred. Ahler as his

Accountant claims credit for the following: executors. Mr. Ahler declined to serve, and

letters testamentary were issued to Henry W. Kalbfell, who retained James Fitzsimmons as his legal counsel. A few days after these letters were issued a petition was presented in this court by some of the beneficiaries under the will, alleging that Henry W. Kalbfell was in$2,330.00 | competent, insolvent and intemperate, and

praying that he be removed. After a hearing the court refused to remove the executor, but so far sustained the contention of the petitioners as to require him to give a bond in the sum of $30,000.

in favor of John Kalbfell which had not been appraised and included in his account. Judg ment was entered on this note, which had been in the possession of A. H. Rowand, and the principal thereof, with interest, collected by him and J. Fitzsimmons, after effort on the part of defendant to have the judgment opened and he let into a defense. Upon demand of the

and J. Fitzsimmons refused to pay any part of the money they had thus collected, claiming that they had appropriated it to fees that the executor, Henry W. Kalbfell, had failed to pay them. Through its attorneys, Scandrett and Gilfillan, the administrator d. b. n. c. t. a. in

2. John Kalbfell died seized of several pieces of real estate in the city of Pittsburgh; among them a house and lot on Sarah street worth $8,000 or $9,000 and a building and lot on Smith-administrator d. b. n. c. t. a., A. H. Rowand field street which he valued at $50,000. He had, at the time of his death, according to the inventory filed by the executor, personal prop erty, including household goods, which was valued at $2,810.42; and a half interest in a partnership which was valued, as a whole, at $24,808.60. The appraisers included in the in-stituted legal proceedings against Rowand and ventory filed by them, as assets of the estate of the decedent, his half interest in this partnership, placing its value at $12,404.30. John Kalbfell's partner was Henry L. Berger. They entered into a partnership to conduct a whole-Scandrett and Gilfillan were paid $200. sale liquor business on February 10, 1894, and the written contract of partnership executed by them contained this provision:

Fitzsimmons, which resulted in having the money collected by them paid to the administrator d. b. n. c. t. a., which is the principal fund now for distribution. For their services

5. The interest of John Kalbfell in the firm of Berger & Kalbfell proved to be worthless, the amount realized by the receiver, after the payment of the expenses of the receivership and preferred claims, not paying fifty per centum of the claims of the general creditors of the firm. Henry W. Kalbfell, executor, in stating his account, charged himself with the amount of the appraisement, which included the interest of John Kalbfell in this partnership, and credited himself with $12,404.30, the valuation thereof, claiming that the interest appraised was worthless. This court surcharged the accountant with the $12,404.30 on the hearing of the exceptions that were filed to his account, but, on appeal, was reversed and a re-hearing

For three months and a half after the death of John Kalbfell, H. L. Berger and Henry W. Kalbfell continued the business of the firm of Berger & Kalbfell, when Henry W. Kalbfell filed a bill in equity to have a receiver ap-ordered. On a second hearing the accountant pointed. In his bill he named himself as the "orator," and speaks of the interest in the firm as his interest. A receiver was appointed, the business closed up and the balance in his hands, as shown by the account which he filed, distributed by an auditor.

3. On February 3, 1898, Henry W. Kalbfell, executor, resigned, and the Safe Deposit and Trust Company of Pittsburgh, the present accountant, was appointed administrator d. b. n. c. t. a. At the time the executor resigned two orders from this court to sell real estate to pay debts were outstanding,-one for the sale of the property on Sarah street and one for the sale of the property on Smithfield street, but after his resignation these orders were vacated and the property was not sold thereon.

shifted his position from that of claiming that the interest of the decedent in the partnership was worthless, and set up that he, himself, and not the estate, was the owner of this half interest after the death of his father under the terms of the partnership contract, and, therefore, that he should not be charged with it as executor. This court, after hearing, held that Henry W. Kalbfell, and not the estate of John Kalbfell, was the owner of this one-half interest which, with H. L. Berger's interest, passed into the hands of the receiver: John Kalbfell's Estate, 47 PITTSBURGH LEGAL Journal, 273.

6. Shortly after the executor entered upon his duties A. H. Rowand was retained by him to assist J. Fitzsimmons, previously retained, and from that on both Rowand and Fitzsim4. After Henry W. Kalbfell resigned it was mous acted for him. They prepared the petidiscovered that there was in existence a judg- tions for the sale of the Sarah street and Smithment note of $1800 made by Henry L. Berger | field street properties; they appeared for him

when exceptions were filed to his account; estate and the only remedy of the person emthey appeared before the auditor who distrib-ployed is against the personal representative uted the amount realized by the receivers from individually." a sale of the firm assets, and continued to act for him generally until he resigned. The business of Berger & Kalbfell was conducted without system, and the books, papers and accounts were in bad shape; so much so that an expert bookkeeper was employed for some weeks unravelling the tangle. While this was going on Henry W. Kalbfell visited the offices of Rowand and Fitzsimmons a great many times for consultation; how many times can only be estimated, as neither of them kept any book memoranda thereof.

7. The allowance of the claims of Rowand and Fitzsimmons are objected to by the administrator d. b. n. c. t. a., and by A. W. Mellon, who claims the fund for distribution as the representative of the children of John Kalbfell by subrogation, real estate devised to said children on which he had a mortgage executed | by them having been sold by order of court to pay decedent's debts for which the fund for distribution was primarily liable.

OPINION. Filed April 5, 1900.

PER CURIAM. Before considering the particular ciaims here presented for legal services it may be well to have a definite understanding of the law under which such claims are allowed against decedent's estate.

An attorney who has rendered professional services for an executer or an administrator in the settlement of an estate is not a creditor of the estate. No common law right of action against the estate accrues to him by reason of having rendered such services.

The Orphans' Court being a court of equity can, and it is the practice of this court to, decree directly to an attorney an allowance for professional services rendered to an executor or administrator, but in doing so the same rules must be applied as in cases where the executor or administrator asks for an allowance to reimburse him for money expended in employing an attorney. And this brings us to the question, when should such an allowance be made to an executor or administrator.

Again, referring to the Amer. & Eng. Encyclopedia of Law, supra, page 1240, we find it stated:

"An executer or administrator has a right unless restricted by statute to employ counsel whenever it is necessary or proper to protect the estate or to enable bim to manage it properly, and on the settlement of his account he wil! be allowed credit, as part of the expenses of the administration for the reasonable charges paid for services."

"The burden of proof as to all the facts necessary to establish the right to such credit is on the executor or administrator."

Again, at page 1249: "It is a well settled principle that the right to employ attorneys and counsel at the expense of the estate is limited to matters which require professional skill and in no case will credit be allowed for the charges of a lawyer for doing those things which the executor or administrator should have doue himself; such as keeping the accounts or attending to the ordinary affairs of the estate." Now will credit be allowed for "attending sales" or "procuring purchasers" or "depositing mortgages for record:" Estate

"The fees due him are part of the expenses of administration of the estate in the Orphans' Court, and that court has exclusive jurisdic- | of Wm. McGregor, 131 Pa. 359. tion:" Fitzsimmons v. Safe Deposit & Trust Co, 189 Pa. 516.

"On the question of value of an attorney's services rendered to an executor in and about the business of the estate, the opinion of other lawyers is competent, but never so far conclusive as to take the place of the independent judgment of the trial court whose duty it is to pass on the question of value itself:" N. Y. Surrogate Ct., 5 Misc. Rep. 136.

His claim against the estate is only an equit able one, and he must work out his equity through the executor or administrator against whom he might have a legal claim by reason of his contract of employment with him. The Amer. & Eng. Encyclopedia of Law, in vol. 11, at page 934 (2d ed.), states the rule in this way: "The authority of a personal representative to employ such persons as it may seem necessary for him to employ, to enable him to perform his duties to the estate which he represents and to pay for their services out of the funds of the estate in his hands, is undoubted; but it is In the Estate of Fredericka Leow, reported generally held that such contract of employ- | in 6 Weekly Notes, at page 336, the court, in ment does not create any obligation on the the opinion filed by HANNA, P. J., say:

Fees for two lawyers, where there is no necessity for employing more than one, will not be allowed, and an allowance for fees will not be made where the services rendered are for the individual benefit of the executor: Appeal of Henry K. Fox, 125 Pa. 518.

doing the sams thing. The amount of these charges precludes the idea that they are halfrates, and surely there has been no reason shown why two attorneys should be engaged to perform such services, each to receive full compensation.

2. That the services, rendered when the receiver was appointed, for which each claimant charges $100, and the services rendered before the auditor who made distribution of the funds in the hands of the receiver, for which each claimant charges $500, were services rendered primarily for Henry W. Kalbfell who, this court has found, succeeded his father as a member of the firm of Berger & Kalbfell, and not for the estate, and therefore Henry W. Kalbfell, as executor, would not have been allowed a credit for these fees amounting to $1200 in the settlement of the estate of his father, if he had paid them; and the attorneys now stand in no better position as claimants on the fund for distribution than he would have done as an accountant who had paid the fees.

"While an executor or other trustee is entitled service; Rowand charges $100 for filing the to the professional services of counsel to advise | bill in equity and having the receiver apand assist him in the discharge of his duties | pointed, and Fitzsimmons charges $100 for and the settlement of the estate committed to him, yet he is permitted to expend only a reasonable portion of the estate for that purpose. This has been termed his 'allowance' for counsel fees, etc., and the amount thus expended is always subject to the criticism of the heirs and cerditors, if any, and the scrutiny of the court. If it be considered an extravagant or unnecessary expenditure, it is liable to be reduced or wholly disallowed; and an executor who institutes needless litigation or causelessly resists the collection of debts justly due by decedent and attemps to charge the estate with the expense thus incurred, will be apt to be made to personally pay for the luxury he has enjoyed. In like manner if he keeps confused and almost unintelligible accounts, or as sometimes happens, somewhat even imposing on counsel employed by him much additional labor and trouble in stating his account and in the settlement and audit of the same when filed, the executor should himself pay for the extraordinary services of counsel caused by his own neglect or ignorance and 3. That the claims for the interviews which not charge the parties interested and who are the executor had with the claimants that have in no default. They should be made to pay been designated "consulations" and for which only such amount as, taking into consideration $1450 has been charged were largely ́in referthe value of the estate and the ordinary labor ence to the partnership business, and the estate and trouble necessary for its expeditious and is not liable therefor. But in addition to this, careful settlement, according to law, would be the evidence fails to show that they were of a fair and reasonable compensation for the pro-legal character such as are chargeable to the fessional services thereby required. Additional estate under the head of legal services. labor and extraordinary services of counsel, the result of the neglect or the mismanagement of the executor, must be compensated for by himself personally."

Applying the law as we have stated it to the claims of A. H. Rowand and J. Fitzsimmons, we hold :

1. That there was no necessity for the employment of two attorneys and that the executor, if he were asking an allowance for fees paid, would only be entitled to a reasonable allowance for one attorney. Take, for instance, the charges tor consultations, the charges for drawing petitions to sell real estate, and the charges for filing the bill in equity; Rowand charges for 150 consultations, $750; Fitzsimmons for 70 consultations, $700; Rowand charges $75 for obtaining the order to sell the property on Sarah street, and Fitzsimmons charges $75 for obtaining the same order; Rowand charges $150 for obtaining the order to sell the Smithfield street property, and Fitzsimmons charges $150 for performing the same

4. That the claims of $200 made by each of the claimants for collecting the $1800 judgment against H. L. Berger have been forfeited. When the money from the judgment was collected Heury W. Kalbfell was no longer the executor of the estate, and the money belonged to the administrator d. b. n. c. t. a. The administrator had to employ counsel to compel the claimants to pay what they had collected to it, and for this service it paid $200. The claimants have no equitable standing in this court to insist on an allowance for collecting money that had to be collected from them by the institution of legal proceedings.

5. That the services rendered for Henry W. Kalbfell on the citation in which he was required to give bail in the sum of $30,000 cannot be charged to the estate. They were services rendered in his behalf in a contest between himself and the estate, wherein the court so far sustained the complaint against him as to require him to give a bond in a large sum or otherwise be removed.