§ 1567. Attorney Fees Allowed Only for Services in Interest of the Estate. It is only attorney fees for services rendered in the interest of the estate for which the personal representative can receive credit or an allowance. Costs and counsel fees incurred by reason of the misconduct of the personal representative or because of litigation in which he has a personal interest, can not be charged against the estate.67 If the personal representative brings an action in bad faith, or is personally interested in the result of the action, costs and expenses incurred therein should not be allowed out of the estate.68 An executor or administrator must personally bear the cost of litigating his own personal rights and interests; and this rule especially applies if the representative attempt to enforce a fraudulent demand against the estate for his own personal benefit and which is successfully contested by the heirs.70 Even though the representative may have no personal interest in the matter, yet he is not authorized to lend his aid to opposing contestants; and where the services rendered by the attorney are in effect in favor 67 May v. Green, 75 Ala. 162; Matter of McKinney, 112 Cal. 447, 44 Pac. 743; Robbins v. Wolcott, 27 Conn. 234; Waterman v. Alden, 144 III. 90, 32 N. E. 972; Campau v. Campau, 25 Mich. 127; Titus v. Titus, 30 N. J. Eq. 95; Aldridge v. McClelland, 36 N. J. Eq. 288; Fluck v. Lake, 54 N. J. Eq. 638, 35 Atl. 643; McCarter's Estate, 94 N. Y. 558; Raybold v. Raybold, 20 Pa. St. 308; Holman's Appeal, 24 Pa, St. 174. If the personal representative employ counsel to assist in prosecuting an alleged murderer of the decedent, he is not authorized to use the funds of the estate in paying the expenses thus incurred.Woodard v. Woodard, 36 S. C. 118, 16 L. R. A. 743, 15 S. E. 355. 68 Shaw v. Camp, 56 Ill. App. 23; Sill v. Sill, 39 Kan. 189, 17 Pac. 665. 69 Appeal of Stephen, 56 Pa. St. 409. 70 Garr v. Harding, 45 Mo. App. 618. of the interests of certain claimants as opposed to other claimants in a contest regarding the estate, the parties to the litigation should bear the expense. 71 Where the personal representative should be allowed attorney fees expended by him in defending his account or in defending himself against charges brought against him, depends upon the truth or falsity of the charges. If the account of a personal representative is unjustly assailed, it is proper for the court to allow him attorney fees necessarily expended in defending it; but attorney fees in resisting charges brought against him which have been sustained, or in defending a suit brought against him to compel him to perform some duty required of him by law and regarding which he is in default, should not be allowed. Nor is the representative entitled to an allowance for attorney fees in defending charges against him of fraud and misconduct which are in part sustained, although in part overruled."2 The rule that the personal representative is personally liable for counsel fees in matters of litigation where his personal interests are concerned, applies with equal effect where he secures an attorney to perform services which it is incumbent upon himself to perform. No credit or allowance will be given or made for counsel fees where the services rendered by the attorney were in performing duties which the law imposed upon the personal representative.73 71 Donges' Estate, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N. W. 786. 72 Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12. 73 Estate of Moore, 72 Cal. 335, 342, 13 Pac. 880; Estate of Brignole, 133 Cal. 162, 164, 65 Pac. 294; Pullman v. Willets, 4 Demarest (N. Y.) 536, CHAPTER LXL ACCOUNTING. § 1568. Purpose and nature of accounts: Verification. § 1569. Matters of distribution or construction not involved in accounting. § 1570. Advancements to distributees considered only upon distribution. § 1571. Annual or intermediate accounts and effect of order settling the same. §1572. Final account and time when same should be rendered. § 1573. Settlement of final account, and parties concluded by order of confirmation. § 1574. The same subject: As to what matters not conclusive. § 1575. Order settling final account not subject to collateral attack. § 1576. Duty of personal representative to account. § 1577. Where burden of accounting and liability rests upon the death, resignation or removal of personal representative. § 1578. Probate court has jurisdiction to compel accounting. § 1579. Who may object to an account: Duty of court. § 1580. How objections to an account should be stated. § 1581. Statute of Limitations does not apply, but laches may be urged. § 1582. Personal representative may explain loss, but can not make a profit out of the estate. § 1583. Where representative fails to account: Suit on bond. § 1584. Suit by creditor against distributees of estate. §1568. Purpose and Nature of Accounts: Verification. The purpose of an account is to show the manner in which the personal representative has administered the assets of the estate, what he has received and what he has paid out. The balance shown upon final accounting is that which remains for distribution.1 The inventory and appraisement is prima facie evidence as to the extent and value of the assets of the estate which have come into the hands of the personal representative, but is open to explanation, and errors may be rectified. The personal representative is chargeable in his accounts with assets in his hands as shown by the inventory, and his accounts should show every receipt and disbursement of whatever nature, and each should be separately entered.3 Income should be separated from principal,* and matters pertaining to realty should be separated from those relating to personalty." The accounts of an executor or administrator must be confined to matters relating to duties imposed upon him by the will of the testator or by law. Any matters prescribed by statute must be set forth." Where vouchers for expenditures are required, they must accompany the account wherein the disbursement is shown, or the items may be rejected; however, they may be subsequently allowed if proper vouchers are thereafter produced. 1 In re White's Estate, 23 Pa. Sup. Ct. 552. 2 As to the operation and effect of the inventory, see § 1410. As to the operation and effect of the appraisement, see § 1411. As to manner of correcting omissions and mistakes in inventory, see § 1412. As to an additional or supplemental inventory, see § 1413. 3 Atwater v. Barnes, 21 Conn. 237; Fairman's Appeal, 30 Conn. 205. 4 In re Evans' Estate, 11 Phila. (Pa.) 113. 5 In re Williamson's Estate, 7 Ohio Dec. 24; In re Price's Estate, 11 Kulp (Pa.) 259. 6 In re Duffy's Estate, 209 Pa. St. 390, 58 Atl. 840. 7 Matter of Adams, 131 Cal. 415, 63 Pac. 838; In re Davis, 31 Mont. 421, 78 Pac. 704; In re Osburn, 36 Ore. 8, 58 Pac. 521; In re Conser's Estate, 40 Ore. 138, 66 Pac. 607. 8 Walls v. Walker, 37 Cal. 424, 425, 99 Am. Dec. 290; Estate of Adams, 131 Cal. 415, 417, 63 Pac. 838. Vouchers should show the date of payment, to whom paid and the It is generally required that the accounts of personal representatives must be verified. If an executor or administrator claims an allowance for any disbursements shown in his accounts, he is in the same position as a creditor and like a creditor is compelled to verify his claim under oath. If objection is made to any item of expenditure or other matter, the personal representative must establish its validity by legal evidence in addition to his own oath. The reason for verification of accounts or claims is to prevent fictitious claims against the estate or claims to which there is a legal set-off.9 §1569. Matters of Distribution or Construction Not Involved in Accounting. Although the balance remaining in the hands of the personal representative, as shown by his final account, must be distributed to those entitled thereto, matters of purpose of the payment so that an inspection will show it to be a proper charge in the matter of the estate.-Estate of Rose, 63 Cal. 349. The personal representative has no authority to collect for others their claims against the estate, and his receipt for moneys as the attorney in fact for another is not a voucher.-Estate of Watkins, 121 Cal. 327, 53 Pac. 702. 9 Crawford v. Clark, 110 Ga. 729, 36 S. E. 404; Browning v. Earl's Admr., 21 Ky. L. Rep. 1295, 54 S. W. 833; Bailey v. Blanchard, 12 Pick. (29 Mass.) 166; Williams v. Purdy, 6 Paige Ch. (N. Y.) 166; Terry v. Dayton, 31 Barb. (N. Y.) 519; In re Conser's Estate, 40 Ore. 138, 66 Pac. 607. The appellant also complains that in a number of instances a claim of less than $50 was allowed and paid by the executrix without an affidavit of its correctness having been made, as required by the statute. Such allowance and payment was irregular, but not important in an attack upon the account of the executrix, if the claims were in fact just, which seems to have been the case. An executor or administrator who pays a valid demand against the estate is entitled to reimbursement out of its funds.-Oregon R. & Navigation Co. v. Thisler, 90 Kan. 5, 133 Pac. 539. |