#### Vaughn, Appellant, vs. Walsh, imp., Respondent.

*September 8*

September 27, *1904*

*Administrators: Allowance for attorney’s fees: Personal liability: Jurisdiction of county court: Judgment: Collateral attach: Counterclaim.*

1. Although for services rendered to an administratrix in the settlement of an estate an attorney is not a creditor of the estate hut merely of the administratrix personally, yet where such administratrix, in her final account, has presented to the county court the question as to how much she should pay to the attorney out of the residuum of the estate in her hands, any question of jurisdiction of her person is waived, and the court, having full jurisdiction of the subject *matter*— i. *e.,*the disposition of the funds in the hands of its officer — -may render a judgment allowing to her a certain sum, to he paid to the attorney for his services; and such a judgment is binding upon the administratrix and cannot he attacked collaterally.

2. For the amount so allowed for the attorney’s services by the judgment of the county court, he may sue the administratrix personally in the circuit court as for money had and received to his benefit; and in such action she may counterclaim upon a promissory note given by the plaintiff.

*487Appeal from a judgment of tbe circuit court for Bayfield county: JohN X. Paeish,- Circuit Judge.

*Reversed.*

This is an action to recover money. Tbe plaintiff is a lawyer residing at Superior, and tbe complaint charges that tbe defendant was, at tbe times named in tbe complaint, tbe administratrix of tbe estate of one Thomas B. Walsh, deceased; that a final judgment was rendered in tbe county court of Bayfield county in tbe matter of tbe estate of said deceased December 19, 1901, in which tbe said county court determined that tbe plaintiff, Yauglm, was entitled to the sum of $425 for bis services as attorney for tbe said estate, in addition to tbe sums which bad theretofore been paid; that said *Emma Walsh*never appealed from said judgment, and that tbe same has never been reversed, vacated, or set aside; that tbe said county court, on May 5, 1903, after notice to said defendant, ordered her to pay to tbe plaintiff tbe said sum of $425; that the said *Emma Walsh*refused and neglected to pay the same, although payment thereof was demanded.

Tbe answer admits that tbe defendant was administratrix as alleged in the complaint, and admits rendition of tbe judgment described in tbe complaint, and also that the same has never been reversed, vacated, or appealed from; but alleges that tbe plaintiff, Vaughn, was employed by her as attorney in tbe matter of said estate, and that prior to tbe commencement of this action she paid tbe plaintiff $400, with tbe understanding that tbe same was in full payment for all of bis services and disbursements in connection with said estate. Tbe answer further alleges that tvhen tbe final judgment was entered in said estate tbe same was entered by tbe plaintiff solely, and that the defendant bad no knowledge or information that said judgment was to contain or did contain any provision for an allowance to tbe plaintiff in addition to the amount that had already been paid, and that the plaintiff fraudulently inserted in said final judgment *488said allowance, and the defendant had no knowledge, thereof until after the time to appeal from said judgment had expired ; that she relied solely upon the plaintiff in conducting said business, and knew nothing of any allowance being asked for upon the making of her final report; and that the said decree is fraudulent and void for these reasons. A counterclaim for $100, being the balance due upon a promissory note given by the plaintiff to the defendant February 1, 1901, was also set forth in the answer.

The plaintiff filed a reply denying generally the allegations of the answer, but admitting the execution of the note and alleging that the same had been paid. ' .

The action was tried by the court, which made findings of fact to the effect that the plaintiff agreed to perform all necessary services, including disbursements, for said estate, for the sum of $400, and that said $400 has been paid in full satisfaction for all such services and disbursements; that the defendant relied implicitly upon the plaintiff at the time the decree in said estate was entered, and had no knowledge that the same contained any allowance for attorney’s fees or disbursements, and that the plaintiff fraudulently, and without the knowledge of the defendant, inserted the said allowance in said final judgment; that the said allowance was wholly unwarranted and fraudulent, and not a just claim against said estate; and that the defendant had no knowledge that' said allowance was inserted until after the time to appeal had expired. The court further found the execution of the note as alleged, and that there was due upon the same $100, with interest from August 1, 1901. And as conclusions of law the court found that the defendant was entitled to judgment dismissing the complaint, and also entitled to a judgment against the plaintiff for $100, with interest, with costs. Judgment being entered in pursuance of these findings in favor of the defendant, the plaintiff apjieals.

*489
      *A. W. McLeod,*for tbe appellant.

Eor tbe respondent there was a brief by Sanborn, *Lamor-eux & Fray,*and oral argument by *A. T. Pray.*

WiNsnow, J.

Tbe record shows that tbe county court .of Bayfield county, having jurisdiction of tbe settlement of tbe estate of Thomas B. Walsh, on tbe 19th day of December, 1901, made a final order or judgment settling tbe accounts of tbe defendant as administratrix, and allowing to her tbe sum of $425 for “extraordinary services and attorney’s fees to be paid to *John H.*Vaughn, attorney for tbe estate, . . . in addition to tbe sum” already paid him as attorney for tbe estate. This judgment was rendered in response to a petition for adjustment of her accounts, in which it was stated that tbe administratrix bad incurred liabilities for attorney’s fees, etc., and praying allowance of her disbursements and “a reasonable allowance for attorney fee,” which petition was signed by tbe defendant, and verified. Tbe record also shows that this judgment has never been reversed, modified, or appealed from, and that on tbe 5th day of May, 1903, tbe same-county court, after personal notice to tbe administratrix, upon tbe application of *Mr.*Vaughn, made an order requiring tbe administratrix to pay said sum of $425 to *Mr. Vaughn.*Tbe defense claims, however, that the judgment of tbe county court was void for lack of power, and that, even if not absolutely void, still it may in this action be attacked and defeated for fraud in its inception.

In support of tbe claim that tbe county court bad no power to make tbe judgment tbe respondent rightly says that *Vaughn*was not a creditor of tbe estate, but was simply a creditor of tbe administratrix personally; and cites *Wiesmann v.*Daniels, 114 Wis. 240, 90 N. W. 162. Erom this principle it undoubtedly follows that *Vaughn*could not in tbe present case have gone into tbe county court, against objections by the defendant, and proven bis claim against tbe *490estate or obtained an order for payment thereof. His claim was personal against her. The estate being solvent, she should have paid her attorney for his services, and presented her account to the county court, claiming the payment as a credit, and the county court would then pass upon the item and allow it to her if reasonable. But *non constat*from this that the judgment attacked here is void for lack of jurisdiction. The county court had complete jurisdiction of the settlement of this estate and the disposition of the proceeds. While the administratrix might, doubtless, have objected successfully to the presentation or allowance of any claim in the county court against the estate or against herself, no reason is perceived why she might not herself in her final account present, the question to the court as to how much she should pay to' her attorney out of the *residuum,*of the estate in her hands. By doing so she waives any question of jurisdiction of her person, and the court, having full jurisdiction of the subject *matter*— i. *e.,*the disposition of the funds in the hands of its officer — may doubtless render such a judgment as was rendered here. When so rendered, such judgment must be-considered as binding and conclusive upon the administra-trix, upon whose request it was rendered, until set aside in a direct proceeding for fraud or for some other reason recognized by the law. Another court cannot investigate it and set it aside in a collateral action, as was done here. This-principle is very familiar. *Cody v.*Cody, 98 Wis. 445, 74 N. W.*217; Barney v. Babcock’s Estate,*115 Wis. 409, 91 N. W. 982.

The judgment, in effect, took the sum allowed out of the estate and placed it in the hands of the administratrix for the benefit of *Vaughn.*If assented to by him, no good reason occurs to us why he may not sue her personally for the sum as for money had and received for his benefit. The subsequent order for payment by the county court was probably unnecessary. The action being on implied contract for *491money bad and received for tbe plaintiff’s benefit, tbe counterclaim upon tbe promissory note, being also a cause of action arising upon contract, is properly pleadable.

*By the Court.*— Judgment reversed, and action remanded with directions to enter judgment for tbe plaintiff for $425,. with interest from tbe time of demand, less tbe amount shown to be due upon tbe counterclaim.