APPEAL FROM AN ORDER ALLOWING FEES.

Court of Appeals for Seneca County.

#### John C. Royer et al v. Walter G. Trumpler, Administrator.*

Decided, January 27, 1916.

*Appeal—Attorneys Dissatisfied With Allowance by Probate Court—Of Fees for Services in Sustaining Will—Right of Appeal to the Common Pleas Sustained—Section*11206.

An appeal lies, by virtue of the provisions of Section 11206, General Code, from a decision of the probate court adjudging, on application made therefor by the claimant, as to the validity of an account for legal services rendered by attorneys employed by the administrator of an estate.

*Boyer & Spitlér*and *W. C. Bhorbacker,*for plaintiffs in error.

*Milton Sayler*and *Frank Dore,*contra.

*

 Affirmed, *Trumpler, Admr.,*v. *Royer et al,*95 Ohio State.

Richards, J.

This is a proceeding in error to reverse a judgment of the court of common pleas dismissing the appeal to that court from the probate court of this county, and the only question before us is whether the original action was appealable. In order to *118determine that question it will be necessary to recur to the proceedings in the probate court.

The record discloses that Walter G-. Trumpler had been appointed administrator *de bonis non*with the will annexed of the estate of Emma R. Slusser, deceased, and was proceeding to administer the estate of the testatrix. The testatrix had named in her will a man as executor of her estate, and the person so named was appointed by the probate court in that capacity and qualified and entered upon the performance of his duties. An action to contest the will was brought and the executor employed counsel to make a defense in that action. A large estate was left and the trial of the contest occupied a considerable period of time and involved the introduction of a large mass of evidence. The trial of the action resulted in a verdict and judgment sustaining the validity of the will. Thereafter Mr. Trumpler, then acting as administrator, filed in the probate court his account as administrator, showing the receipt and disbursement of a large number of items.

After the filing of this account steps were taken in the probate court to secure the allowance of this claim in favor of the attorneys for services rendered in the defense of the will. All parties in interest were duly notified, and the matter was heard in the probate court and a finding and judgment entered in that court that the services had been duly rendered in defense of the will, and under employment of the executor, and that they were of the value of four hundred dollars. It was ordered that this sum be allowed to the attorneys in full for their services, and the remainder of the claim disallowed. It was further ordered by the probate court that the administrator pay the sum so allowed to the attorneys for such services. From this judgment and order Royer & Spitler appealed to the court of common pleas.

Whether the action is appealable depends upon a construction of Section 11206, General Code. That section, so far as pertinent to the question under consideration, reads as follows:

“An appeal may be taken to the common pleas court by a person against whom it is made, or whom it affects, from any *119order, decision or judgment of the probate court in settling the accounts of an- executor, administrator, guardian and trustee, or of assignees, trustees or commissioners of insolvents.”

* The simple question under this section is whether the judgment of the probate court under review was one made in settling the accounts of the administrator of the estate of Emma R. Slusser. We do not regard as very material the precise steps taken in the probate court to procure an adjudication as to whether the claim should be allowed and added to the account of the administrator. The account as filed stated, in substance, that the administrator' was not advised as to its validity and for that reason he rejected' the same, and his statement naturally suggested to the probate court the necessity of a determination as to whether the claim was valid and whether the same should, or should not, be paid and entered in the account. The decision of the probate court amounted to a judgment and order that the claim was valid to the extent of four hundred dollars, and that the remaining part was excessive and should not be allowed. It would naturally follow that the administrator should pay the amount so adjudged and enter the amount so paid in his account, and, in this sense, a majority of the court are of the opinion that the judgment of the probate court was one made in settling the accounts of the administrator within the meaning of the section above cited, and that, therefore, the judgment was one from which an appeal could be taken.

We are the more convinced of the correctness of this conclusion, in view of the language of Section 10214, General Code, requiring that the provisions of the chapter embracing this section fixing the right of appeal, should be liberally construed in order to promote its object and assist the parties in obtaining justice.

It is manifest that if the administrator had allowed the claim and entered the same in his account, and the same had been approved by the probate court, parties who .were interested and prejudicially affected thereby would have the right of appeal. Under the statute the amount justly due to the attorneys for making a successful defense of the will would be, when allowed *120by tbe probate court, a portion of the legitimate expenses of administration, and the fixing of the amount is the settling of an item of the account. *Thomas, Adm’x,*v. *Moore, 52*O. S., 200. See, also, *McMahon, Adm’r,*v. *Ambach & Co. et al,*79 O. S., 103. A construction of the statute which would deny the right of appeal when the administrator rejects the claim and the probate judge, on the filing of the account, allows the same in part, would not be giving the statute a liberal construction and would not be assisting the parties in obtaining justice. On the contrary, it would in practice make the appealability depend in large part upon the position taken By the administrator with reference to the claim and the action taken thereafter by the probate judge.

For these reasons, the common pleas court erred in dismissing the'appeal, and that judgment will be reversed and the cause remanded to the court of common pleas for further proceedings.

Chittenden, J., concurs.

Kinkade, J.

(dissenting).

It is conceded by the plaintiffs in error that their right of appeal depends entirely upon Section 11206, General Code. To say that every order made by a probate judge with respect to the administration of an estate which involves the direction to the administrator to pay, or not to pay, money belonging to the estate, to any given party, is necessarily an order or decision made in the settling of the accounts of the administrator, as mentioned in Section 11206, seems to me a mere play on words.

The account of the administrator which the probate court settles is an account between the administrator and the heirs or legatees or devisees under the will, to whom the residue of the estate will pass after the expenses of administration are taken out, and the validity of a claim of a creditor against the assets of the estate, whose claim arose, as in this case, after the death of the testator, is in nowise affected by any order that the court may make with respect to the settling of the accounts of the administrator.

*121The situation is not helped out any by a reference to Section 10214, General Code, calling for a liberal construction of the provisions of the statutes in that subdivision, including Section 11206. The liberal construction called for is for the purpose of enabling the parties to secure justice, etc. It by no means follows that it will further the ends of justice to engraft upon the statute the right of appeal when it does not exist by virtue of the terms of the statute. The party desiring to appeal is not the only one that is to have justice by virtue of a liberal construction of the statute.

We come back to the point from which we started, to-wit: Section 11206 must, standing alone, determine whether the plaintiffs in error had a right to appeal. The papers before this court do not disclose what action, if any, has been taken with respect to the settling of the accounts of this administrator by the probate court, other than in so far as it is discoverable with respect to this particular item, by an inspection of the journal entry, in which the court allowed four hundred dollars on the two thousand dollar claim made by the plaintiffs in error. The plaintiffs in error elected, upon the refusal of the administrator to pay their claim, to go into the probate court with a petition and cite all parties to appear and there try out before the probate judge their right to have the full amount of their claim. 'The decision of the probate judge gave them four hundred instead of two thousand dollars. From this they undoubtedly could prosecute error, but it does not follow that they can also prosecute appeal.

I am clearly of the opinion that the trial judge was entirely correct in dismissing the appeal, and I think the action of the trial court should be affirmed.