#### St. Clair’s Appeal. [Banks’s Estate.]

The allowance of counsel fees in the orphans’ court is a matter in the sound discretion of the court, and an allowance of one per cent, upon an estate of $95,000, for general services, together with attorney’s commissions for collection of judgments, and $49 for stating and filing a partial account, is not an improper exercise of that discretion.

In stating an account by an executor, it is not necessary that the commissions for collection of judgments should appear in the account.

The refusal of the court to admit evidence of charges made in a particular estate, on the hearing of the above case, is no reason for interfering with the decree of the court in this case.

Oct 18, 1888.

Appeal, No. 166, Oct T., 1888, by John P. St Clair et al., children of Charlotte St. Clair, deceased, and legatees under the will of Mrs. Banks, from O. C. Indiana Co., to review a final decree dismissing exceptions to the account of J. D. Patton, executor of Mrs. C. C. Banks, deceased, at Dec. T., 1887, No. 15. Green, J., absent.

The exceptions and facts appear by the opinion of the court below, by White, P. J'., except the 3d, which was as follows:

“3. If the services of an attorney were required in the collection of any of the judgments embraced in this account, which said judgments included attorney’s commission for collection, it was the duty of the executor to have collected a reasonable commission from the defendants and to have accounted for the same.”

At the audit, the exceptants offered the inventory, and the first and partial account and supplementary and final account of Robert Patterson, executor of Archibald Stewart, deceased, to be followed by oral testimony of Mr. Banks, attorney, showing what the ordinary charge for services, similar to those rendered in this case, is. Offer overruled and exception. [11]

The exceptant offered to prove, by Mr. Banks, the amount of the estate of Archibald Stewart, deceased, the professional services rendered by him in the settlement of it, and his charges therefor: the purpose being to show what is an ordinary charge for similar services in the settlement of a similar estate. The offer being objected to by the accountant, as irrelevant, the court ruled: “ We will allow you to call Mr. Banks to give his opinion as to what would be a fair compensation for settling this estate, the estate about *265which we are enquiring; allow hypothetical questions to be asked; but to ask what the charge in a particular estate is, we don’t think would be relevant, because that might be controlled by various considerations. For this reason, objection sustained and exception.” I>]

The exceptions were disposed of, by the court below, in the following opinion, by White, P. J. :

“ It is always best, in disposing of such matters, as are here pending, even at the expense of a little time, to have the pertinent facts, out of which the controversy arises, before us.

*“*Mrs. Banks, the testatrix, died Nov. 3,1884, after having made her last will and testament, to which she had also made and executed several codicils. She died possessed of a considerable estate, both real and personal. By hei; will, she made various particular legacies and specific devises of real estate, and then provided that the residue of her estate, real, personal and mixed, should be distributed into three several parts; one thereof to the children of her deceased daughter, Charlotte St. Clair; another to her son John D. Patton, and the other to the children of her deceased daughter, Mary P. Lloyd. She further provided that none of the real estate, embraced in her residuary estate, should be sold until her granddaughter, Mary C. Lloyd, reached twenty-one years of age. On this will, the accountant, J. D. Patton, took out letters testamentary Nov. 17, 1884, and, after the arrival of Mary C. Lloyd at twenty-one years, the residuary real estate was sold, under the direction of this court, to be distributed under the provisions of the will. The pending account is entitled ‘ the second and partial account ’ of the accountant.

“ From this, it would appear that a first and partial account had been filed, which is not now, and has not been, before us in the hearing of the exceptions to this pending account. All we have here now to pass upon are the items of the present account alone. We are only to pass upon what this account contains. Rhoads’s Ap., 39 Pa. 186. The settlement and confirmation of a partial account presupposes a final account to be presented at some other time. Shindel’s Ap., 57 Pa. 45. This account alone, then, we will now consider.

“ The account aggregates, on the debit side, $95,101.64. Of which, $23,685 appears to be the proceeds of real estate sold by the executor under the provisions of the will, by the direction of this court; the balance of the fund being the collections of mortgages judgments and other debts, owing'the testatrix at her death, or to her estate since. The credits claimed aggregate$94,487.27, $91,995.90 of which are for legacies and distributive shares paid to the several legatees under the will. No exception has been taken, if one would obtain here, to the blending of the proceeds of real estate sales with the personalty, in this administration account. So, we shall not, under the peculiar circumstances of the bequests of the will and the *266estate, start any complaint against the regularity of blending the funds making the aggregate of the debit side of the account. Exception, however, which we must consider, has been taken, and pressed upon the argument, against blending the payments, properly belonging to an administration account with a distribution account.

“The exceptions are numerous, being- 24 in number. Before considering them, we may observe that, so far as this account indicates, the indebtedness to the estate, making the bulk of the assets, here accounted for, has been most successfully collected. It would appear, in this respect, thus far, the estate has been satisfactorily administered, and profitably, to those designated by the testatrix to enjoy her bounty. [The long list of mortgages and judgments recited in this account appear to have been collected in full and without loss.] [14] While the exceptions are numerous, as we said, yet, to abbreviate our disposition of them, we may classify them under a few subjects. The 5th, 7th and 14th exceptions have been abandoned. Exceptions 3, 4, 8, 9, 10, 11, 12, 13, 16, 17 and 18, all relate to the matter of attorney’s commissions, complaining that the attorney’s commissions, collected on the several judgments recited in the exceptions, which commissions amount to $564.01, should have gone into the estate and not to Attorney Wilson, who collected the judgments. The 24th exception complains of the $1309.33 charged for professional services, rendered by Attorney Wilson to the estate, is excessive and more than the services are reasonably worth.

“The 1st, 2nd and 15th exceptions complain of the failure tp give the dates of the items, so as to affect the charge of interest. The 6th, 19th and 20th complain the account fails to state the time for which the items of rent charged were received, as also the other items referred to in these exceptions. The 22nd and 23rd exceptions complain the items of attorney fees and of costs of officers, on judgments entered, are not part of the account on which accountant should be allowed commissions. The 21st complains against the regularity of blending the account as executor with a distribution account.

“ We will dispose of these exceptions in the order we have recited them, and, for brevity, under the classification we have given them.

“In Allison’s Estate, 4 Pa. C. C. R. 553, this court discussed the rules governing the allowance of attorney’s commissions. While it is true the attorney’s commission belonged to the judgment creditor, yet it is only for the purpose of indemnity for his reasonable expense, for counsel fees, in collecting the money, as was said by Justice Paxson in Imler *v.*Imler, 94 Pa. 373. The recognized practice is, where attorney’s commissions are paid to the attorney, for him to retain them for his fees of collection, giving the creditor the principal and interest of his claim intact, unless, by a special contract with the attorney, it is otherwise arranged. The attorney’s *267commissions, claimed here, by the exceptants, in behalf of the estate, appear to have been received and retained by attorney Wilson as his special compensation for collecting the-particular judgments in which the commissions were paid. Under the circumstances, then, of their payment, these commissions do not belong to the estate, and on no principle that we can here recognize, on any facts developed, should they have gone into the account. Exceptions 3, 4, 8, 9, 10, 11, 12, 13, 16, 17 and 18, all relating to the disposition of attorney’s commissions, are dismissed.

“By the 24th exception, the item of $1309.33, charged for the professional services of Attorney Wilson, is complained of as excessive. Certainly the accountant, in the administration of this large estate, was entitled to advice and the assistance of learned counsel, whose compensation is a proper charge against the estate. There is, however, no inflexible rule controlling the amount of this compensation. It has been said, on the argument, and utterances from some respectable sources repeated, indicating the rule for compensation for accountant and attorney should be the same whether the estate is great or small. This we cannot entirely agree to. Says McElhenny’s Appeal, 46 Pa. 349, compensation is proportional to the responsibility incurred, and to the labor and care bestowed. This was spoken of an accountant himself'; but the same principle, in a measure, obtains in the compensation of the advising and directing attorney. Responsibility is in porportion to the extent of the fund received, but the labor and care may not be. The common sense and intelligence of our courts, therefore, have established the rule-that in all cases the compensation shall be a reasonable one. What is reasonable depends upon the circumstances of each particular case. The fund in this case is large and the responsibility of the accountant was, consequently, proportionably great. He testifies, and it would also appear natural and proper, that he required the frequent advice and direction of his counsel in his various duties in collecting and disposing of the fund, and providing for the sales of real estate. Certainly, the large collections, indicated on this account, were made without loss to the estate, and, from the evidence submitted, valuable and safe assistance was rendered by the attorney. This, of course, was in the line of the duty of the employment of the attorney to safely, and as frequently as necessary, advise and direct the accountant. For this business, the attorney should be properly and reasonably compensated. No fair-minded person should deny or doubt this. To enlighten the conscience of the court in this behalf, a variety of testimony was offered by the accountant to show the sum charged was only a reasonable compensation. For this purpose, the fee-bill, adopted by the Indiana County Law Association, wherein the charges for counsel to executors, administrators, trustees, etc., on estates of various sizes are regulated; wherein, it is also provided, after speaking of charges on smaller estates, ‘upon any excess of $10,000, one per cent. *268additional,’ with the provision annexed ‘ the foregoing charges do not include services in stating, filing and confirmation of account and procuring appointment of auditor, etc.’ Then, again, some five or six members of the bar have testified in support of the reasonableness of the charge here. All this coming from so intelligent a source is most persuading testimony, although not conclusive, at all, upon the court. Some testimony has also been offered by the exceptants to show the charge was not reasonable, but excessive. In such cases, also, the experience, observation and judgment of the court must be exercised. After carefully considering all the testimony in this behalf, in connection with the provisions quoted of the fee bill, we incline to the opinion that the one per cent, for counsel in estates in excess of $10,000, certainly when the sum approaches $100,000, would include the ordinary routine duties of issuing sci. fas., making substitutions of the executor on the record, writing assignments of judgments and similar duties, not attended with adversary litigation. We would not consider, however, the preparation of deeds on orphans’ court sales, or adversary litigation, would be included in this one per cent, compensation. Such services, wé would consider it reasonable to be otherwise compensated for, according to their actual value. It is impossible, however, to indicate an all-controlling rule, even with the testimony of the fee-bill, referred to, and that of the attorneys before us. We shall not depart, here, from the rule indicated, through all our cases, of deciding the particular case before us, on its own circumstances, in the light of the evidence submitted on both sides. In the exercise of our best judgment here, we would consider one per cent, on the entire debit side of the account for general service, would be reasonable, making . . . . . . . . . $ 951 OO

Services in stating and filing this account . . . 49 00

The preparation of deeds and conveyances and services about them ........ 5° 00

Total......... $1050 00

“ This conclusion is strengthened, also, in the view we take of the blending of an administration with a distribution account here. Probably, in case of filing a distribution account, the accountant may require the services of his attorney again.

“As to exceptions 1, 2, and 15, relating to the dates of the items, it is certainly the duty of the executor, on the face of his account, to give the dates of the receipts of the various sums paid him, so that any liability for interest could be readily determined. Bruner’s Ap., 57 Pa. 52. We do not consider, however, under the circumstances of this estate and the apparent effort of the accountant to make an early settlement, that item No. 1, in the account, being the balance over from the first account, is subject to interest, particularly when it does not appear that the accountant made interest out of it. His policy appeared to be to have an early settle*269ment of the estate and distribution among the legatees. While it would have been quite proper for the accountant to have given the dates of all the receipts of money, on the face of the account, yet most of them, being collections of judgments and'mortgages of record, where it was developed, upon the hearing, receipts were entered upon the record, where the dates could be readily seen, it does not appear the omission of the dates on the account was with a view of avoiding liability for interest. It also appears, in this connection, that the monies were not kept on hand for considerable periods, but large portions of it seem to have been paid to the legatees within a reasonable time after its receipt. We do not feel called on, therefore,to send the account back because of the mere omissions of a statement of the dates of receipts of all the monies charged against the accountant. Exceptions I, 2 and 15 are therefore dismissed.

“Exceptions 6, 19 and 20 complain of the failure to state for what time certain rents and other items, indicated by the exceptions, were received. This would go to affecting the accuracy of the amount charged for. It must be remembered this is but a partial account. It is only conclusive, when finally confirmed, of what it contains and does not affect what is not settled in it. Any unsettled items of the estate are not affected by this account. Rhoads’s Appeal and Shindel’s Appeal, supra. It was competent for the exceptants to have shown that more money was actually received, from the items indicated, than the accountant charged. No evidence in this direction was submitted. Perhaps, upon the settlement of a final account, it would be competent for the exceptants still to show the accountant h^d received larger amounts from the sources indicated, in these items, than the present partial account shows. Exceptions 6, 19 and 20 are dismissed.

“ Exceptions 22 and 23 complain certain $3 attorney-fees, frequently called docket-fees, were not properly placed in the account; and by the 23rd exception, certain officers’ costs, for entering and in services about judgments, are improperly in the account. It is quite true these attorney-fees, appearing in the account, did not belong to the estate. It was explained on the hearing, however, that they had been lifted by the accountant, in several instances, with the debt and interest of the judgments, and, from force of circumstances, there having been a change of attorneys in the judgments, there was some uncertainty about the proper owners of these fees. Then, again, it is quite true, also, that officers’ fees about entering judgments and other services about them, would not belong to the estate, but it appeared on the hearing, that, in many instances, in the life-time of the testatrix, and since, when judgments were entered up, the' officers’ costs were paid, and when the collection of the debt was made the defendants would'pay back these costs. In such instances, certainly, these costs paid by the defendant would belong to the estate. It does not appear that these items were entered upon the account to swell the commission, as indicated in the exception. A *270matter so small, about so considerable an estate, it is hardly reasonable to think the accountant would entertain. In the absence of some evidence in that direction, we will not assume it. And, upon the principle of de minimis, we will dismiss exceptions 22 and 23.

A supplemental opinion of the court below, was, inter alia, as follows:

“ Our attention has been called to the reasoning adopted by us in fixing the compensation at $1050 of Attorney Wilson, and that considerable sums were collected by Mr. Wilson where no attorney’s commissions were allowed. We may remark, that we considered this when making our computation as we did. Probably, in the multitude of statements, in the testimony, as to items of collection, [we may have overlooked the fact of an adversary proceeding on the Davis mortgage,] [15] or, if we did not overlook it, we may not have been entirely just to Mr. Wilson or the accountant in not allowing special compensation. Desiring to be entirely fair and just to the accountant and his attorney, in this respect, as well as to the other interests involved, we have concluded to allow an additional $100 to the $1050 before allowed, as compensation to the attorney, for those other collections in which there were no attorney’s commissions. We do not make this allowance greater than this, because of what, we think, was a liberal allowance in giving one per cent, on the debit side of the account, when a considerable portion of this was not the actual collection of money, as, for instance, the item of $18,000 on the Homer mill sale. Then, again, we have recalled the fact that some of the judgments were collected by assignments from the accountant to a third person, followed by a re-assignment to the accountant. This, doubtless, was all proper and a convenience to all parties, but, in the exercise of our discretion, in discovering what was a reasonable compensation to the accountant’s attorney, we thought it was proper to regard all the probable trouble resulting, from the manner in which the fund was realized, to the accountant, so that he could charge himself with it.”

The court further struck from the account all items of credits for payments of distributive shares, on the authority of Yundt’s Est., 6 Pa. 36, and Ake’s Ap., 21 Pa. 322.

The costs were directed to be paid out of the estate.

A decree was entered in accordance with this opinion, and the exceptants appealed.

*The assignments of error*specified the action of the court, 1, in not sustaining the 3rd exception to the account, quoting it; 2, in •not requiring the executor to account for the attorney’s commissions collected; 3, in finding that one per cent, on the entire debit side of the account, for general service, would be' reasonable compensation for the attorney; 4, in allowing the executor credit of $951.00 for general service of attorney; 5, in allowing the executor credit of $49.00 for services of attorney in stating and filing account; 6, in *271not requiring the executor to give, in his account, the dates of receipts of sums of money paid him; 7, in not excluding from the account the $3.00 attorney-fees; 8, in not excluding from consideration the services of the attorney paid' for by the attorney’s commissions collected and not accounted for ; 9, in not finding as a fact what services were rendered by the attorney for which the executor was allowed credit of $951.00; 10, in allowing an additional $100.00 to the $1050.00, before allowed, as compensation to the attorney; 11, in rejecting the first offer of evidence, quoting the offer but not the ruling; 12, in rejecting the other offer of evidence, quoting the bill of exceptions; 13, in permitting the accountant to show the practice of the Indiana County Bar in regard to attorney’s commissions embraced in executions; 14, in finding as in brackets 14, quoting it; 15, in saying as in brackets 15, quoting it.

*D. B. Taylor,*for appellants.

The attorney’s commissions for collections belonged to the estate and not to the attorney. Daly *v.*Maitland, 88 Pa. 384. They should appear in the account, as that is the only way the appellants can know how their trustee is managing their estate. It is the duty of the executor to get in all the assets. Bisph. Eq., § 138. And he must render an account. Scott’s Intest. L., 2nd ed., p.-788; Perry, Trusts, 3d ed., § 407.

What the practice of the Indiana bar may be in regard to such commissions is of no concern. Their practice of “ keeping them ” is not in accord with the utterance of the supreme court in Daly *v.*Maitland, supra.

Where an attorney has been employed in good faith by reason of the neglect or the refusal of the defendant to pay, the fact that the money has been paid to the attorney, without execution, does not relieve the defendant from his agreement to pay reasonable attorney’s commissions, for the reason that the creditor’s liability to the attorney has attached. Imler *v.*Imler, 94 Pa. 372.

If there was no necessity for the intervention of an attorney, the executor should not be allowed credit for the expenses incurred. He can not incur unnecessary counsel fees: Perry, Trusts, 3d ed., §910, note 2, and § 912; Becher’s Est, 5 Pa. C. C. R. 115.

Trustees will be reimbursed all reasonable fees paid for legal advice in the discharge of their duties. McElhenny’s Ap., 46 Pa. 347; Wilson’s Ap., 41 Pa. 94; Manderson’s Ap., 113 Pa. 631.

The courts have sanctioned a reasonable allowance for compensation to attorneys and to auditors. Fitzsimmons’s Ap., 4 Pa. 248 ; McKelvy & Sterrett’s Ap., 108 Pa. 619. The amount must rest in the sound discretion of the court. Imler *v.*Imler, 94 Pa. 375. “The auditor should be allowed compensation according to the work and not measured by the ability of the estate to pay.” Parker’s Ap., 61 Pa. 486.

If this attorney directed the executor to assume the responsibility of making a distribution of this estate, assisted him therein, *272and placed in the account the payments to the legatees, he cannot look to the estate for compensation for such service. The account was not properly stated. Ake’s Ap., 21 Pa., 322; Scott, Intest. L., 2d ed., p. 305 ; Bull’s Ap., 24 Pa. 286; Com. *v.*Snyder, 62 Pa. 153.

No delicacy to the profession should suffer an allowance to be made which conflicts with justice and the rights of parties. Snyder’s Ap., 54 Pa. 67.

The court should have required the executor to have furnished dates of the receipts of sums of money paid him. Bruner’s Ap., 57 Pa. 46.

The $3 attorney fees, allowed by law, belong to the attorney who enters the judgment, and the court should have excluded from the account at least such of them as belonged to Mr. Wilson.

The offered testimony of Mr. Banks had a direct bearing upon the very point of the controversy, and the exceptants should have been permitted to show the value of the services of counsel under circumstances of general similarity to those under which the services were rendered in this estate. The offer was directly in the line of Thompson *v.*Boyle, 85 Pa. 477.

*Samuel Cunningham,*for appellee.

Attorney’s commissions are not assets of an estate. They are not for the payment of debts or legacies. It is true they belong to the plaintiff; but they are his for a specific purpose; they go to him to pay his attorney for collecting the particular judgment or mortgage in which the stipulation is contained. “ The obvious intention, in this and like stipulations, in instruments for the payment of money, is that the creditor shall be indemnified for his reasonable expenses of counsel fees in collecting the money.” Imler *v.*Imler, 94 Pa. 375.

The stipulations for attorney’s commissions, in notes and mortgages, has been sustained solely upon the ground of indemnity to the holder of such securities against his reasonable expenses in their collection; they never were intended as a “ cover to usury,” nor to put money in the pocket of the lender. McAllister’s Ap., 59 Pa. 204, and cases cited therein.

Mr. Justice Paxson says, in Imler *v.*Imler, supra: “ The attorney deducts the commissions.”

Attorney’s commissions are to pay for collections. Imler *v.*Imler, supra; McAllister’s Ap., supra; Daly *v.*Maitland, 88 Pa, 384.

The court said in Johnston *v.*Marsh, 21 W. N. C. 472, “there should be a demand for the payment of the money before the defendant can be required to pay attorney’s commission stipulated for in a judgment note.”

What is reasonable compensation for services rendered in a particular case is a fact to be found from all the circumstances of that case. The court may determine itself, or through an auditor, what is a reasonable fee for the services of an attorney. McKelvy and Sterrett’s Ap., 108 Pa. 615. The court found that $1,150 was a *273reasonable compensation for the services of Attorney Wilson in this case.

The following should appear as the 3d and 4th syllabi to the above case :

The omission of ihe dates of receipt of monies from the account, was held not sufficient cause to require a re-statement of the account, where it did not appear that the omission was with a view of avoiding liability for interest.

The inclusion of officers’ costs and docket-fees was excepted to on the ground that they were included in the account to swell the commissions. In the absence of evidence to this effect, and under the rule of de minimis, the court refused to correct the account in this particular.

Oct. 29, 1888.

The finding of an auditor on the facts should not be disturbed unless for clear error. Gilbert’s Ap., 78 Pa. 266; Brua’s Ap., 55 Pa. 297; Stehman’s Ap., 5 Pa. 413; Hermstead’s Ap., 60 Pa. 428; Wistar’s Ap., 54 Pa. 60.

The finding of an auditor on the facts, which has been approved by the court below, will not be set aside, except for flagrant error. Burrough’s Ap., 26 Pa. 264; Loomis’s Ap., 22 Pa. 312; Whiteside’s Ap., 23 Pa. 114; Dillinger’s Ap., 71 Pa. 425 ; Gilbert’s Ap., 78 Pa. 266.

The finding of the court in this case is entitled to as much, or even more, weight than the finding of an auditor approved by the court. The testimony was taken in open court. The witnesses on both sides were examined and ci'oss-examined in the presence of the court, and every item of evidence that could have been submitted to an auditor, or that is now before this court, was heard and considered by the court below.

This court said in Daly *v.*Maitland, supra, and in Imler *v.*Irnler, supra: “ In general, this court will not review the exercise of a sound discretion by an inferior court upon such a question [speaking of attorneys’ compensation], and the presumption will always be in favor of their decision, unless it is plainly excessive.” And, in Heckert’s Ap., 24 Pa. 482, this court said: “ The amount of compensation to a trustee must depend on the discretion, which is the reason and conscience, of the tribunal having jurisdiction of the trust; and, in fixing it, regard is to be had to the amount and character of the trust estate and to the labor, skill and success attending the administration of it,” and that “ the same rule is applicable to the question of interest and counsel fees.”

The evidence will not warrant this court in saying that the court below abused its sound discretion in deciding what was a reasonable compensation.

Per Curiam,

There was nothing in this case but that which addressed itself to the sound discretion of the orphans’ court, and we cannot say that that discretion was improperly exercised.

Decree affirmed and appeal dismissed at costs of appellants.