#### In re Estate of Hendrick: Draper, Admr., Appellant, *v.*Garber, Admr., Appellee.

(No. 3488

Decided January 4, 1943.)

*Mr. O. H. Both*and *Mr. Abraham Gertner,*for appellant.

*Messrs. Addison, Isaly & Addison,*for appellee.

Geiger, P. J.

This case is here on an appeal from an order of the Probate Court sustaining an objection to a charge made by the administrator of the deced*248ent’s estate of $50 paid to O. H. Both, an attorney, for services performed by him in securing the probate of what was claimed to be a will of the decedent. This alleged will was presented for probate and its admission was opposed by certain heirs whose interest was to have the estate administered as intestate property.

In this proceeding to probate the will witnesses were called and examined and cross-examined. The proceeding, according to the record, consumed two days :of time. The will was admitted to probate and upon the application of the executor the court found that it was necessary for the executor to employ counsel in the proceeding to establish the will? It was represented that the services of the attorney were reasonably worth $50, whereupon the court ordered the ■executor to pay this sum to the attorney whom he had engaged and authorized him to include this sum as an item in his next account. The entry of the court is to the effect that the matter came on to be heard upon the application of the executor for authority to pay the attorney fee and the court being advised finds that it was necessary that an attorney be engaged and that the executor had employed O. H. Both to represent him and that the services were reasonably worth $50. It was ordered that the executor pay Both the sum of $50 and “authorizes said executor to include the same .as an item in his next account.” The executor paid Both this $50 and presented a claim in the account that ■was subsequently filed. The entry made by the court was based upon an application by the executor appointed after the will had been ordered probated.

Thereafter the heirs brought an action in Common Pleas Court to set the will aside and it was then found that the instrument admitted to probate was not the last will and testament of the decedent. Thereupon *249the executor filed fiis final account. He was allowed a fee for Ms services to the estate, fiis court costs,, eta, Included in tfie account was tfie item of $50 ordered paid to Roth for representing tfie executor in tfie probate of tfie will. Exceptions were taken to tfie inclusion of tfie fee for tfie attorney’s services in establishing tfie will for probate, which exception was sustained by tfie court. *i*

Tfie question presented is tfie correctness of tfie ruling in sustaining tfie exception to tfie allowance of the attorney’s fees, and may be stated as follows: May an executor of a will duly admitted to probate include in fiis account items for attorney’s fees for establishing tfie probate of tfie will, which was subsequently set aside as invalid?

Section 10504-85, G-eneral Code, found in tfie chapter on “Wills,” provides that tfie expense of proving and recording wills shall be paid by tfie party at whose instance this is done. Tfie witnesses and officers shall have like fees for attendance and services as in other cases. Upon tfie executor or administrator being appointed, tfie expense shall be reimbursed out of the estate. Tfie statute is not very plain but we assume it means that any expense which has been incurred by an executor, even that which goes to- tfie probating of tfie will, and incurred before-fiis appointment, is to be paid by him and fie is to be reimbursed therefor out of the estate.

In tfie case at bar tfie court ordered tfie executor to pay tfie sum of $50 to tfie attorney and authorized him to charge it in fiis future account. Tfie services to be-performed by tfie attorney were completed and the-fee fixed by tfie court. We are not of tfie opinion that the mere fact that some one interested secured the-order of tfie Common Pleas Court setting aside the-*250will as not being tbe last will of tbe decedent deprives tbe attorney of tbe compensation ordered to be paid to him after be bad successfully accomplished tbe purpose for wbicb he was employed, to wit, tbe probate of a proffered will. Tbe statute, while not directly referring to compensation' of attorneys, 'is sufficient to cover expenses and contemplates their allowance out of tbe estate even though the will may be afterwards set aside.

Section 10509-22, General Code, has for its purpose provisions that tbe executor named in tbe will may, during a contest to have tbe will declared invalid, perform certain functions as executor and pay tbe costs 'of such administration. While tbe statute does not specificially cover a case such as that at bar where an attorney fee is sought to be paid for services rendered in probating a will afterwards declared to be invalid, yet the general implication of such section is that under tbe conditions incident to tbe case at bar tbe executor has certain powers. Tbe section is discussed in *In re Account of Ullman, Exr.,*12 C. C. (N. S.), 340, 21 C. D., 370, with special reference to page 345. While this decision relates to. compensation and expenses of an executor successfully defending a will, wbicb is tbe revérse of tbe case at bar, yet tbe case gives support to our conclusion that in tbe event of the probate of a will, afterwards declared to be invalid, tbe executor should be allowed his expenses.

Counsel have expended a great deal of time and care in the consideration of this question, but we feel that while there is some doubt under tbe varying holdings of tbe several courts, there is no injustice done to any one by paying tbe attorney for tbe services performed. There is nobody to fix the value *251of these services except the Probate Court, and the court has discharged this obligation. *Andrews’ Exrs.*v. *Admrs.,*7 Ohio St., 143 and *Foltz*v. *Boone,*107 Ohio St., 562, 140 N. E., 761, have given us some concern, but we believe they do not require the disallowance of the payment made by order of the court. The cause will be remanded to the Probate Court with instructions that it allow, as a credit, the payment made by the executor for the attorney’s services.

*Judgment reversed*and” *cause remanded.*

Barnes and Hornbeck, JJ., concur.