In re the Estate of Horton

Laughlin, J.

The petition of Thomas’- ÍL Nafus, an attorney and counselor of this court, shows that by proceedings duly had" in this court in February last, Horton was adjudged an incompetent person ánd a committee of his person and property was duly appointed. An indebtedness amounting to $1,500 was Owing to the estate. The committee, being Unable to "collect the claim,employed the petitioner for that purpose, and through his tefforts and- services, the'whole amount was paid over to the committee, who still retains sufficient thereof to pay for the legal services thus rendered.

The committee having repeatedly declined to pay the attorney for his services, the latter petitions the court to . have the value of his services determined, and for an order requiring the committee to pay the samé." No affidavit is presented in behalf óf the committed controverting any" of "the facts stated In the "petition; but the dommittée, through "her attorney, challenges the power" and jurisdiction "of the court to entertain "the petition, or to order" that" the" attorney he paid for his services out of the estate, and, with the utmost confidence, contends that the only remedy the attorney has is to sue the committee individually. It is conceded that if the committee saw fit to consent, the court might make the order. The attorney has successfully completed his employment and no cause is shown as to why he should not be paid. The committee, who is the agent of and was appointed and may be removed by the court, seems unwilling to submit it-to the judgment of the court as to whether it is for the intérest" of the estate that these services be adjusted in this manner rather than by a more expensive litigation. The committee merely represents the .court in the exercise of its jurisdiction over the property of incompetent persons, and is subject to its orders with respect to. the care, management and disposition of such property. Code Civil Procedure, §§ 2321, 2322 and 2339; Ackerman v. Bethune, 3 Misc. Rep. 126.

It has been held by surrogates in the settlement of estates that attorneys employed by executors or administrators are not creditors of the estate. Matter of Flint, 15 Misc. Rep. 598; Kowing v. Moran, 5 Dem. 56. In the latter case the surrogate states that the same rule applies to the case of attorneys employed by a committee of the property of a lunatic, but cites no authority to sustain the proposition. It requires no argument to show that the cases are not parallel. Price’s Appeal, 116 Penn. St. 410.

A creditor of the incompetent person cannot sue the committee without leave of the court, and references -to determine the validity of such claims without suit are favored. Matter of Hopper, 5 Paige, 489; Williams v. Estate of Cameron, 26 Barb. 172.

No. argument is.made in behalf of the -committee to show that this rule should not be followed if the court has jurisdiction.

On the conceded facts, the attorney had an equitable lien on the funds, in the hands of the committee, the fruits of his labor for the value of his services. It is right and proper that he should now be paid and the court has full jurisdiction to entertain this proceeding instituted for that purpose. Pierce’s Appeal, 116 Penn. St. 410; McKelvy’s & Sterrett’s Appeals, 108 id. 615; Manderson’s Appeals, 113 id. 631.

An order may be entered referring the matter to Walter G-. Smith, Esq., to take proofs as to the employment and value of the petitioner’s services and to report the evidence and his opinion thereon to the court.

Ordered accordingly.