IN RE: PHILLIPI'S ESTATE.

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District Court of Appeal, Fourth District, California.

IN RE: PHILLIPI'S ESTATE. TOMALINO v. WILSON.

Civ. 3474.

Decided: January 16, 1948

Monta W. Shirley and Lane & Casey, all of Los Angeles (Martin C. Casey, of San Bernardino, of counsel), for appellant. Fred A. Wilson, of San Bernardino, in pro per.

The surrounding facts pertaining to this estate are related in a previous decision. In re Estate of Phillippi, 71 Cal.2d 127, 161 P.2d 1006. As therein stated, on September 2, 1943, a will dated April 23, 1943, was filed for probate by Fred A. Wilson, an attorney at law, who had prepared the will. He was named as executor and was the sole devisee of the estate with certain specified instructions as to its disposition. That will expressly revoked all former wills and disinherited two children of the testator. A contest was filed as to the probate of that will, and so far as the record discloses, that contest is still pending. Fred A. Wilson was, on his application, appointed special administrator and continued to act as such. On April 7, 1945, an order was made appointing the public administrator special administrator. On April 16, 1945, the public administrator filed his declination to act. On May 31, 1945, Mr. Wilson again filed a petition for appointment as special administrator. Over objection, he was appointed ‘with all the powers of a general administrator’. A bond of $25,000 was fixed. He was, in said order, directed to defend certain pending litigation against the estate.

On September 11, 1943, Mary Tomalino filed a petition for probate of a will dated August 5, 1943, and sought her appointment as administratrix with the will annexed. Contests were filed to it. The trial court subsequently admitted that will to probate and appointed Mary Tomalino administratrix with the will annexed. An appeal from that order was taken and was later affirmed. A remittitur from this court was filed in the Superior Court on December 5, 1945.

The questions here presented arise from the order approving the second account and report of the special administrator (‘with powers of a general administrator’) and his petition for allowance of statutory commissions and for extraordinary services performed. On July 29, 1946, Mary Tomalino, as well as the two children of deceased, filed objections thereto.

Mr. Wilson, as special administrator, acted as his own attorney in all of these proceedings. Appellant Tomalino argues that since the order appointing her administratrix became final on December 5, 1945, the day the remittitur was filed, the powers of the special administrator ceawed, and therefore certain challenged outlays made by the special administrator and claimed in his second account should not have been allowed, citing Probate Code sec. 466.

Respondent contends that he was appointed, pursuant to section 465 of the Provate Code, as special administrator with the ‘same powers, duties and obligations as a general administrator’ and that he thereupon became a general administrator within the meaning of Probate Code section 510, and that his ‘pre-existing grant of letters * * * of administration must be revoked’ before his powers as such special administrator become terminated; that since such authority was not revoked before the date of accounting, he was entitled to be reimbursed for such expenditures from the estate up until that time, citing Dodson v. Greuner, 28 Cal.App.2d 418, 82 P.2d 741; and 11 Cal.Jur. p. 776, sec. 461.

Assuming that respondent was appointed special administrator with the same powers as a general administrator, as alleged, the case relied upon clearly holds that such an appointment confers upon such special administrator only the powers of a general administrator, but even so, he does not become a general administrator. His limited powers, duties, rights and liabilities as an ordinary special administrator are merely enlarged. McNeil v. Morgan, 157 Cal. 373, 108 P. 69; Ruiz v. Santa Barbara Gas & Electric Co., 164 Cal. 188, 128 P. 330; Miller v. Superior Court, 186 Cal. 453, 199 P. 805; In re Estate of Davis, 175 Cal. 198, 165 P. 525; In re Estate of Welch, 106 Cal. 427, 39 P. 805; 11b Cal.Jur. p. 878, sec. 1352. Dodson v. Greuner, 28 Cal.App.2d 418, 82 P.2d 741, relied upon by respondent, is authority only for the conclusion that under section 353 of the Code of Civil Procedure the statute of limitations runs against a special administrator on whom general powers are conferred under sections 463-465 of the Probate Code.

In Security-First National Bank of Los Angeles v. Superior Court, 1929, 100 Cal.App. 702, 280 P. 995, a similar contention was made that the appointment of a general administrator had the effect of only suspending the powers of the special administrator; that his letters were not revoked; that his status as special administrator continued until he had completed his accounting and obtained his discharge. In there disposing of the contention the court said at page 704 of 100 Cal.App., at page 995 of 280 P.: ‘We find ourselves unable to agree with this contention. We think that the appointment and qualification of the general administrator in legal effect is a revocation of the special administrator's authority, and that thereupon he ceases to be special administrator. His duty to render an accounting and to be discharged from further liability is in no respect different from the same duty which would devolve upon him if the court had by direct order revoked his letters of administration.’

The case last cited was decided before the enactment of Probate Code section 465, but was based upon former section 1415 of the Code of Civil Procedure (Amended, Stats. 1921, p. 536), which section then contained the same provisions in reference to the powers and duties of a special administrator. The conclusion there reached seems to be controlling in the instant case. Therefore, when the order appointing the general administrator became final, under the provisions of section 465 of the Probate Code, there was, in legal effect, a revocation of the special administrator's authority and it became his duty to render an accounting. In re Estate of Sherman, 5 Cal.2d 730, 56 P.2d 230.

The expenditures of the special administrator, with general powers, made after December 5, 1945, were for the period beginning December 28, 1945, and ending April 19, 1946. They involved (1) premium on his bond; (2) second one-half of County taxes on property in the estate of deceased; and (3) cost of painting, plastering, and repair of bakery owned by deceased. All items constituted obligations which were incurred prior to December 5, 1945. The latter expenditures were authorized prior to December 5, 1945, and after a petition was filed by the special administrator for instructions relating to the repairs and improvements contemplated, upon due notice, and without objections thereto having been made. An order directing the special administrator to make the necessary expenditures so as to comply with the requirements of the Board of Health was signed and there was no appeal from that order. There was evidence that the exact extent of the work required was unknown and could only be determined as the work progressed. The work commenced on November 22, 1945, and was completed about December 15, 1945.

A special administrator must render an account in like manner as other administrator are required to do and in accordance with the provisions of the Probate Code in relation thereto. French v. Superior Court, 3 Cal.App. 304, 85 P. 133. In his account a special administrator is to be allowed such reasonable expenses as are necessarily incurred in the care and management of the estate. In re Moore's Estate, 88 Cal. 1, 25 P. 915; Sec. 900, Probate Code.

Section 541.5 of the Probate Code provides that every executor or administrator furnishing a surety bond shall be allowed the cost of such bond. The right to be reimbursed for this charge is statutory.

Taxes assessed upon the undistributed property of deceased persons are charges against the property which should be paid and will be allowed as necessary expenses in the care and settlement of the estate, and are obligations due from the estate. A representative has authority and it is his duty to preserve the property by paying the taxes. In re Estate of Freud, 131 Cal. 667, 63 P. 1080, 82 Am.St.Rep. 407; Estate of Herteman, 73 Cal. 545, 15 P. 121; In re Estate of O'Connor, 200 Cal. 646, 254 P. 269; 11b Cal.Jur. p. 255, sec. 846. Likewise, reimbursement may be allowed for expenditures upon the property reasonably necessary to preserve it. In re Estate of Freud, supra.

The case of In re Estate of Bell, 145 Cal. 646, 79 P. 358, relied upon by appellant, is factually different. Appellant there was a special administratrix, apparently with limited powers. The court held that she had no authority, derivable from the statutes, to engage in contracts with real estate agents for the payment from funds, in her charge, of commissions on sales made of property belonging to the estate.

In re Estate of Kafitz, 51 Cal.App.2d 325, 196 P. 790, involved a small amount of personal property turned over to the widow and for which the special administrator failed to account. The court held that the special administrator was not entitled to draw his compensation, as such, until the property was returned to the executors.

In re Blair, 49 App.Div. 417, 63 N.Y.S. 678, arose under a statute of New York which allowed reimbursement to executors for expensed of administration ‘paid by them’. It was there held that since the services of the executors' attorney were not paid for by the executors, it was not allowable in their account. No such statute prevails in this state.

In Re Couts' Estate, 87 Cal. 480, 482, 25 P. 685, 686, it was said: ‘There is nothing in the statutes which requires payment of claims against the executor for services rendered, or materials furnished, the estate during administration, before they can be allowed in the settlement of his account. * * * Where the representative of the estate has a doubt as to the legality of the claim, or the amount that should be paid for services rendered, or materials furnished, in the course of administration, it is proper for his own protection, as well as for the protection of the heirs, that the court should determine, after notice to all persons interested, whether the estate is liable at all, and, if so, in what amount.’

The cases cited by appellant are not contrary to the conclusions here reached. The trial court found that these obligations and expenditures made by the special administrator, totaling $1,676.40, were ‘just, true and correct’, and should be a‘allowed and approved’. The conclusion must be that since such obligations were necessary to protect the estate and were proper and legal charges against it and were duly authorized and contracted for prior to the termination of the powers of the special administrator, the court had authority to allow them. The same question was presented and similarly answered in Re Estate of Pedroli, Deceased, 47 Nev. 313, 221 P. 241, 224 P. 807, 31 A.L.R. 841. See, also, In re Estate of Clark, 33 Cal.App.2d 523, 92 P.2d 505.

The objection in respect to a request for an allowance of fees in the sum of $1,900 for extraordinary services as special administrator requires more consideration. In addition, petitioner asked that he be allowed three-fourths of the regular fees allowable to the administratrix with the will annexed. The trial court ordered that the ‘division of the regular commissions' and the portion to be allowed the special administrator be deferred until the close of administration of the estate, which action was paoper.

Under Schedule C, Item one, the special administrator claimed that since he was an attorney at law, he did not engage the services of an attorney, but that he rendered all the services as administrator without the assistance of an attorney; that as a basis of his extraordinary services as special administrator, on September 14, 1943, he prepared and endeavored to serve upon Mrs. Tomalino a written notice demanded surrender to him of the property of the estate, and that on October 14, 1943, he signed an affidavit and procured a citation directing her to appear in court and show cause why she should not deliver up the property to the administrator; that she appeared in court, with her attorney, in response thereto and delivered it to him. For this service Wilson claim extra compensation in the sum of $100. Objections to this claim were made for the claimed reason that such claim was for legal services performed; also that Mrs. Tomalino's attorney phoned Wilson and offered to deliver the assets and property of the estate to him but that Wilson insisted that there must be a hearing; that the work performed by Wilson was useless and wasted, of his own design, and in no way benefited the estate. The evidence on this question does support the court's conclusion that the institution of such proceeding was necessary.

Respondent claims that the amount allowed in his account was not for legal services rendered but for extraordinary services performed as special administrator. It is stated in 21 American Jurisprudence, p. 679, sec. 532; that: ‘In the absence of lawyer becomes executor or administrator, lawyer becomes executor or administrator, his compensation as such is in full for his services, although he exercises his professional skill therein; and even if he performs duties which he might properly have hired an attorney to perform, he is not entitled to attorneys' fees.’ See, also, Needham v. Needham, 34 Idaho 193, 200 P. 346.

Cases are to be found in some jurisdictions which hold that where it is provided by statute that executors or administrators may be allowed extra compensation for extraordinary services, an executor or administrator who, being an attorney, performed legal services for the estate may be allowed, in addition to the usual commissions attached to his office, a further compensation for his legal services. This later rule is discussed but not followed in Re Estate of Parker, 200 Cal. 132, 251 P. 907, 49 A.L.R. 1025, which case is cited in support of the rule first above mentioned, and which rule has been adopted in this state. See, also, In re Estate of Runyon, 125 Cal. 195, 57 P. 783; In re Estate of Lair, 70 Cal.App.2d 330, 161 P.2d 288.

Section 900 of the Probate Code provides that: ‘The executor or administrator shall be allowed all necessary expenses in the care, management and settlement of the estate, and, for his services, the compensation hereinafter provided; * * *.’ Section 902 thereof provides that: ‘Such further allowances may be made as the court may deem just and reasonable for any extraordinary services, such as sales or mortgages of real or personal property, contested or litigated claims against the estate, the preparation of estate, inheritance, income, sales or other tax returns which require the appointment of a tax counsel, tax auditor or other tax expert for the preparation thereof, the adjustment and payment of extensive or complicated estate or inheritance taxes, litigation in regard to the property of the estate, the carrying on of the decedent's business pursuant to an order of the court, and such other litigation or special services as may be necessary for the executor or administrator to prosecute, defend, or perform.’

The question then presents itself whether or not the services performed by respondent here and for which allowances have been made are, in effect, legal services or were they part of the ordinary duties of the administrator and, if not, may they be classified a extraordinary services performed by the administrator, for the benefit of the estate?

The statutory commissions are intended to be full compensation for all ordinary services rendered during the entire administration, from the beginning down to final settlement and distribution. In re Estate of Phelps, 186 Cal. 292, 199 P. 10. Extraordinary services have been defined as being beyond or out of the common order or rule; not usual; not ordinary; uncommon. In re Estate of Broome, 162 Cal. 258, 122 P. 470; 11 Cal.Jur. p. 1172, sec. 772. Measured by these rules, we will endeavor to classify the character of the services claimed to have been performed by respondent as reflected by the evidence.

Wilson testified that he had been attorney for deceased prior to his death; that he prepared the will for him; that deceased informed him that if anything happened to him he would find his papers in a cement pipe in has basement; that after Phillipi died Wilson went to his home and made inquiry; that he endeavored to find a key to the basement; that he was informed by the occupant that Mrs. Tomalino had taken all of the papers with her to Los Angeles; that he broke the cellar-door lock to make a personal investigation and found the papers gone; that he thought he had made demand on Mrs. Tomalino by letter for their return to him; that no papers were forthcoming so he filed a petition for an order requiring her to surrender them; that he was unsuccessful in securing service of the order upon her; that after a phone call from her representative she agreed to appear in court on a day set and deliver over the papers. Mrs. Tomalino and respondent, as special administrator, appeared in court and the papers were delivered to him under court order, apparently without contest. Under the circumstances related, the proceeding to compel the production of estate property to the lawfully appointed special administrator, may be classified as a proceeding that is ‘not ordinary’ or ‘not common’ to the duties of the administrator. The services performed by the administrator, divorced from the services that may be classed as legal services, may be properly held to be ‘litigation or special services as may be necessary for the * * * administrator to prosecute, * * *.’ under section 902 of the Probate Code. The question of the value of such extraordinary services was determined by the trial court to be $100. Where serious question arises, either over the character or value of a service to an estate, the appellate court will be reluctant to disturb the determination of the judge in probate with respect to the allowances made the administrator or an allowance made where extraordinary services are found to have been rendered. In re Estate of Broome, supra. The allowance here made for his services, divorced from the legal services performed, does not appear to be so unreasonable as to amount to an abuse of discretion.

Item two is a claim for $200 for extra compensation. Respendent alleged that on April 7, 1944, the filed his first account, accompanied by a petition for instructions in respect to the payment of four claims, totaling over $12,000, filed against the estate, and also instructions in respect to the sale of a Ford pick-up truck appraised at $340. Objections to the account and to the petition were made by one of the heirs. A hearing was had. The court approved the first account and ordered the special administrator to take no action on the claims and to sell the truck.

Wilson testified that the $200 claim ‘has to do with the services in connection with the first account and presentation of the claims'. In his testimony no claim is made in regard to the petition for instructions in reference to the sale of the truck. The preparation of the data necessary for the filing and presentation of the administrator's account, and the appearance of the administrator in court in support thereof, is required under the law and is a part of the ordinary services expected to be performed by the administrator as a part of his ordinary services and commissions. Respondent apparently recognized this fact in his brief but argued that he was entitled to the full sum anyway because of extraordinary services he performed in ‘assembling the data’ for the petition for instructions, executing the same and attending as a witness to support the petition, because it was due to the opposition of appellant that he was required to do so. The evidence shows that the amount allowed by the court ($200) was for claimed ‘extraordinary services in connection with the first account and presentation of claim.’ We are unable to determine from the evidence or record what specific amount was allowed for extraordinary services not included as a part of the ‘regular service’ required of the administrator. This portion of the order therefore must be reversed.

As to item three respondent claims $100 for services in selling and obtaining confirmation of sale of the Ford truck. The evidence shows that the sale was by public auction held by the administrator at the testator's residence. The claim for extraordinary services included assembling the data for and executing the notice of sale, the posting of such notice, the holding of the sale, the assembling of data for the petition for confirmation, and attending court as a witness on confirmation as well as providing data for and executing the certificate of sale and endorsement of the registration certificate for the vehicle. Appellant claimed that such fee is excessive when considered in connection with the $200 fee alleged in item two, since the truck netted only $285 on the sale. Respondent argues that although the charge, viewed in the light the amount realized, may appear disproportionate, the time involved must be considered; that had the truck had a value of $2,000 or $3,000 the claim of $100 would not be disproportionate, even though the time involved in conducting the sale would have been the same. The question here presented was a matter for the determination of the trial court and although it seems to us that the amount allowed does appear to be disproportionate, we cannot say that the trial court abused its discretion, particularly in view of the fact that appellant does not claim that any part of the $200 fee allowed in item two pertained to the sale of the truck. That portion of the order is affirmed.

Item number four involves a claim for $250 for extraordinary services in connection with the litigation arising out of the proceedings initiated by appellant to have the public administrator appointed in the place and stead of Wilson. On April 7, 1945, after Wilson filed his first account, the public administrator was appointed in his place and stead. On April 16, 1945, the public administrator filed a refusal to act. On September 17, 1945, over objections, Wilson was appointed special administrator, with the powers of a general administrator. Appellant argues that this service is not compensable as extraordinary services; that his services were directed toward ‘keeping himself in office’; that such services did not benefit the estate but only the personal representative; and that the order allowing such fee should be reversed.

Respondent claims that the services were in connection with litigation instituted by appellant, who was endeavoring to have the public administrator appointed special administrator; that since appellant was not successful and the respondent was restored to that office, he was entitled to reimbursement for ‘extraordinary services' in preparation for and his presence as a witness at the several hearings; that in addition thereto, the petition for his reappointment contained a prayer for instructions in reference to the defense of two actions pending against the estate; that in the order reappointing him the trial court ordered him to defend said actions; that the time consumed, aside from the legal services performed, was well worth $250.

The fundamental rule is that in order for an administrator to recover for ‘extraordinary services', such services must pertain to and be a benefit to the estate and not to the representative as an individual. The application for letters is a part of the ordinary probate proceedings and it has been held that such services benefit the personal representative individually and are not compensable as ‘extraordinary services' against the estate. In re Estate of Byrne, 122 Cal. 260, 54 P. 957, 1015; In re Estate of Barton, 55 Cal. 87. See, also, 21 American Jurisprudence, p. 693, sec. 554, where it is said: ‘Although there is some authority to the contrary, the majority rule is that no allowance will be made out of the estate for costs and attorneys' fees incurred in procuring letters of administration or in litigating the right to administer on the estate, even though the party asking for such an allowance was successful in obtaining letters of administration.’ See, also, 90 A.L.R. 104; Wilbur v. Wilbur, 17 Wash. 683, 50 P. 589; Horton v. Horton, 158 Md. 626, 149 A. 552; In re Estate of Murphy, 171 Cal. 697, 154 P. 839.

It was the administrator's duty to defend all suits that may have been brought against the estate. Secs. 571–573, Probate Code; 21 Am.Jur. p. 496, sec. 223. There is no showing here how the estate benefited under the claimed ‘extraordinary services' performed by the administrator. Under the rule cited, no recovery could be had by the administrator for the claimed ‘extraordinary services' involving the contests heretofore mentioned. For the reasons expressed this portion of the order should be reversed.

Item five involves an allowance of $100 to respondent for his ‘extraordinary services' in gathering data, filing a petition for instructions in reference to the repair work on the bakery building owned by the estate, and his appearance in court in support of the petition. There is also a subsequent allowance of $200 for his ‘extraordinary services' in obtaining estimates and letting contracts for the work, the cost of which totaled $457.53. The evidence discloses, as heretofore partially related, that the Board of Health threatened to condemn the bakery unless certain improvements were made. Respondent related in detail considerable service expended in connection with the obtaining of this order, in securing estimates, in supervising the work, and in auditing and paying the bills in relation to the improvements authorized. The complaint of appellants that the $300 allowance for this service is out of proportion to the total contract price of the work has some merit. However, the trial judge considered the time required in rendering this service and found that this allowance was reasonable. We do not feel disposed to say that he abused his discretion as to these two items.

Item six (a). The trial court allowed respondent $500 ‘for extra compensation’ in reference to the claim of one Amelio Enrico, totaling $5,000. At the time of his death, deceased was a defendant in an action by her for claimed services, as housekeeper, alleged to have been rendered by her for defendant. On February 21, 1944, claimant presented the claim to the administrator who petitioned the court for instructions in respect thereto as above set forth. Thereafter, by direction of the court, the administrator took no action. Claimant filed an amended complaint based upon the claim and the administrator filed an answer to the amended complaint. The case was set down for trial on several occasions but was subsequently dropped from the calendar and is still pending. It is claimed by respondent that he was prepared for trial.

Item six (b). A similar allowance was made in the sum of $250 regarding the claim of Enid Howell for $1,500 for services rendered as housekeeper and monies advanced for deceased. On July 13, 1944, she brought an action thereon against the administrator who filed an answer thereto. The action was set for trial but has not been tried.

Item six (c). Deceased was a defendant in a Justice's Court action brought by one Slattery to recover $871.87 for merchandise alleged to have been sold to deceased prior to his death. A supplemental complaint, based on his claim, was filed and the administrator pleaded thereto by demurrer and answer. The case was set for trial and is still pending. Respondent now claims and was allowed $200 for ‘extra compensation’ for this service. Respondent claims that in connection with these actions he was required to make preparation for the defense of the actions, without assistance; that it involved the examination of records of the courts, interviewing of witnesses, his appearance as a witness at the time the cases were supposed to have been tried, and that in view of the time consumed and responsibility assumed, as special administrator or in connection with the litigation, and in conference with adverse attorneys, the amount allowed was not unreasonable. The respondent, as special administrator, acted as his own attorney in all of these proceedings.

In connection with the Enrico claim (item six (a)) the record shows, without conflict, the respondent Wilson had been attorney gor Phillipi during his lifetime; that prior to becoming special administrator he charged Phillipi on June 16, 1943, a retainer fee of $250 in the original action of Enrico v. Phillipi, and a further item of $75, entitled ‘Enrico controversy’. He presented his claim to the court (a judge other than the trial judge here) and it was allowed. A similar claim was presented by an attorney who officed next door to respondent Wilson, seeking remuneration for legal services in April, 1942, reciting ‘Legal services rendered re Enrico v. Phillipi, retainer, investigation, preparation of answer, consultations, and preparation for trial $150.00; * * * Filing answer $2.00; * * * Court appearance and subsequent consultations $50.00’. This claim was approved by Wilson, as special administrator, and by the same judge who approved thw Wilson claim. It would appear to us, from the cold record, and considering the fact that the case is still pending, that the ‘extraordinary services' claimed to have been performed by the special administrator, had been about satisfied by the previous claims presented to and paid by the estate.

Item six (b), the services claimed to have been performed under the Howell claim, as well as the Slattery claim, item six (c), appear to us to be in the nature of legal services and should be performed by an attorney at law. It would appear to us that in the allowance of these items the trial court was endeavoring to compensate the special administrator for the legal services he performed in representing himself as special administrator. Under the cases heretofore cited, and referring particularly to the case of In re Estate of Parker supra, it must be concluded that respondent cannot recover for legal services performed where he, as special administrator, does not employ another attorney but elects to act as both attorney and special administrator, even though the estate may be saved the cost of attorneys' fees by the transaction. In that case it was said (page 135 of 200 Cal., page 909 of 251 P., 49 A.L.R. 1025): ‘An * * * administrator * * * who is himself an attorney at law may properly employ another attorney to render the necessary legal services for the estate, and he may be entitled to an allowance out of the estate for the value of such legal services. (Citing cases.) But if the * * * administrator * * * being himself a practicing lawyer, elects to act as his own attorney in the performance of the legal services incident to the administration of the estate, the general rule is that he will not be entitled to an allowance against the estate for his professional services, in the absence of some statutory provisions entitling him thereto. (Citing cases.) * * *. This rule is supported by the weight of authority * * * and though there is considerable apparent and perhaps real conflict of authority upon the subject * * * we deem it a sound and wholesome doctrine, founded upon reasons of public policy.’

In Re Estate of Graham, 187 Cal. 222, 201 P. 456, 457, 18 A.L.R. 631, the court said: ‘If he [the administrator] did perform such services which were not in the line of his duty as administrator, he might not be permitted to receive compensation, but the reason would be one of public policy forbidding him to be his own employer.’ See, also, Stanes v. Parker, 9 Beav. 385 (50 Eng. Reprint, 392); In re Bank of Niagara, 6 Paige, N.Y., 213, 215; Broughton v. Broughton, 5 De Gex, M. & G. 160 (43 Eng. Reprint, 831).

No doubt respondent has expended much time and energy, as an attorney, in reference to this estate, but, under these rules, an allowance cannot be made to him as special administrator for attorneys' fees in performing legal services. In the absence of any showing that the sums allowed in item six were services performed as special administrator, independent of and divorced from services ordinarily and customarily required of an attorney in probating an estate or in defendant actions against the estate, such allowances cannot be approved. This part of the order must be reversed.

The order approving account and allowing extraordinary fees to special administrator, as to items one, three and five, is affirmed, and as to items two, four, six (a), six (b) and six (c) is reversed.

Each party to pay his own costs on appeal.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concur.

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