estate for money so expended.1 The rule as to costs and counsel fees in will contests, both in England and in the United States, as well as the principles governing the same, have been heretofore treated.2 Likewise has been covered the question of costs and counsel fees of the personal representative in resisting an application for his removal from office.3

In considering the subject of costs and counsel fees in connection with matters of administration, several distinctions must be borne in mind. Costs and counsel fees for matters taking place directly in the probate court and made necessary in the regular course of administration, are natural expenses of administration. But the personal representative is often engaged in litigation in other forums regarding matters connected with the estate, such as defending the estate against unjust claims or prosecuting actions to collect the assets. Such proceedings are usually in the form of actions at law. Suits to construe the will, however, are proceedings in equity, and the rules of law and of equity are not the same with respect to costs. And, further, unless the statute otherwise provides, costs do not include counsel fees, and taxable costs do not include all the actual expenses which the personal representative may incur, even in addition to counsel fees, in prosecuting or defending litigation."

1 See § 1334.

2 English rule and illustrations, see §§ 1335, 1336.

Points to be considered in American decisions, see § 1337.

As to conflicting American decisions, see § 1338.

3 See § 1553.

4 In re Paschal, 10 Wall. (U. S.) 483, 493, 19 L. Ed. 992; Trustees v. Greenough, 105 U. S. 527, 533, 26 L. Ed. 1157; Estate of Olmstead, 120 Cal. 447, 52 Pac. 804.

5 Brilliant v. Wayne Circuit Judge, 110 Mich. 68, 67 N. W. 1101.

§ 1555. Statutory Regulations as to Costs: Exceptions to the General Rule,

That a litigant should receive costs is not an inherent right. In England, under the statute of 23 Hen. VIII, ch. 15, § 1, the personal representative, in an action brought against him, might recover costs if the decision was in his favor, otherwise not. This was confined to cases where the plaintiff was suing for a wrong done him or on a contract made with him. By the statute of 3 & 4 Wm. IV, ch. 42, § 31, the personal representative of an estate was placed upon the same footing as other litigants, except that if the action concerned rights or obligations of the decedent, the court in which the action was pending was not bound by the rule."

Costs alone, however, are not sufficient to indemnify a successful litigant, since counsel fees are not included. The English court of chancery, by virtue of the statute of 17 Richard II, ch. 6, was authorized to allow damages according to its discretion to the litigant who had been unduly troubled, thus allowing an award of damages in the nature of costs between attorney and client. These statutory regulations, if ever a part of the common law, are superseded in most jurisdictions in the United States. by the various statutes regarding the taxation of costs, and the statutes govern in all cases to which they are applicable.

The general rule is that costs are allowed only to a successful litigant, but there are exceptions to the rule, as where an executor defends the will of the decedent

6 See Lynch v. Webster, 17 R. I. 513, 14 L. R. A. 696, 23 Atl. 27. 7 See present English rule, §§ 1335, 1336.

8 Downing v. Marshall, 37 N. Y. 380, 387; In re Donges' Estate, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N. W. 786.

against a contest, where an executor, a legatee or a devisee applies to a court of equity for a proper construction of the will, or where various parties are claiming an interest in or lien upon property in the custody and under the control of the court, in which cases costs may be apportioned or the unsuccessful party may be allowed his costs out of the estate. Such action is justified upon the ground that the executor should defend the will of the decedent against a contest, and that the proper construction of the will or the determination of the rights of contesting parties to property under the control of the court is of benefit to all concerned. Where the probate court has discretion as to the manner in which costs shall be awarded or apportioned, the award will not be disturbed on appeal unless there has been an abuse of discretion. 10

§ 1556. Costs Where Personal Representative Is a Party.

Regarding the payment of costs a distinction is drawn, governed by the time when the cause of action arises: thus, if the personal representative bring suit on a cause of action which arose wholly or in part prior to the death of the decedent, he is not required to pay costs; but the rule is otherwise where he unsuccessfully brings an action on a cause arising wholly after the death of the decedent. In the latter instance, even though the action is concern

9 Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 418.

10 Stuart v. Bulware, 133 U. S. 78, 33 L. Ed. 568, 10 Sup. Ct. 242; Reynolds v. Canal & Banking Co., 30 Ark. 520; Matter of McKinney, 112 Cal. 447, 44 Pac. 743; Waterman v. Alden, 144 Ill. 90, 32 N. E. 972; Lombard v. Witbeck, 173 Ill.

396, 51 N. E. 61; Peabody v. Mattocks, 88 Me. 164, 33 Atl. 900; Mathis v. Pitman, 32 Neb. 191, 49 N. W. 182; Hascoll v. King, 54 App. Div. (N. Y.) 441, 66 N. Y. Supp. 1112; Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. 599; Matter of O'Brien, 145 N. Y. 379, 40 N. E. 18.

ing property of the estate, it is a cause of action in favor of the representative individually.11

If an executor or administrator is not relieved by statute from personal liability for costs in an action which he unsuccessfully attempts to prosecute, judgment for costs runs against him personally; yet if the suit was instituted in good faith, he may be credited for such expense upon the settlement of his account.12 But in some jurisdictions it is said that it is the duty of the executor or administrator to collect the assets and to take all necessary legal proceedings, and that there is no authority for charging him personally with costs, even though he is unsuccessful in the action, if he has proceeded in good faith and with apparent cause.18 Under such rule, costs incurred by the personal representative in prosecuting claims in favor of the estate or in defending claims against the estate are proper expenses of administration. If costs are awarded to those engaged in litigation against the estate, they become merely claims against the estate and stand upon the same footing as other claims, payable only when the assets of the estate are sufficient to satisfy the same.14

11 Hunter v. Bilyeu, 39 Ill. 367; Keniston v. Little, 30 N. H. 318, 64 Am. Dec. 297; Ketchum v. Ketchum, 4 Cow. (N. Y.) 87; Mullen v. Guinn, 88 Hun (N. Y.) 128, 34 N. Y. Supp. 625; Buckland v. Gallup, 105 N. Y. 453, 11 N. E. 843.

12 Hardy v. Call, 16 Mass. 530; Lynch v. Webster, 17 R. I. 513, 14 L. R. A. 696, 23 Atl. 27.

13 In re Heath's Estate, 58 Iowa 36, 11 N. W. 723; Meeker v. Meeker, 74 Iowa 352, 7 Am. St.

Rep. 489, 37 N. W. 773; Callender v. Keystone Mut. Life Ins. Co., 23 Pa. St. 471.

14 Taylor v. Wright, 93 Ind. 121.

"Finally the appellant contends that the judgment, being against the executrix upon a demand against the estate of her testator, should have been made payable in due course of administration. This contention seems to be well founded and the judgment will be modified accordingly. The judg ment is modified by adding

§ 1557. Right of Personal Representative to Employ His Own Counsel.

It is not only proper but it is in fact the duty of every executor or administrator to employ an attorney to guide and direct him in legal matters pertaining to the administration of the estate, and to represent him in court not only as to the routine matters of administration, but to institute necessary proceedings to collect the assets of the estate and to defend the estate against false claims. Reasonable fees for such services of the attorney will be allowed the representative upon the settlement of his account.15 The choice of an attorney lies with the personal representative. The selection by the testator in his will of the one who shall act as the attorney for the executor is advisory only, and the executor may accept him or not, as he may desire.16 The reason of the rule is that the executor is liable in certain instances for the wrongs of the attorney, as where the executor entrusts

thereto, after the words, 'as executrix of the last will and testament of George E. Dierssen,' the words, 'the same to be paid in due course of administration of the estate of said decedent'; and, as so modified, the judgment is affirmed."-Nathan v. Dierssen, 164 Cal. 607, 130 Pac. 12, 14, 15.

The judgment against Aubry Addington as administrator of the estate of Z. T. Addington, deceased, binds him only as administrator, and not as an individual. -Collier v. Gannon, 40 Okla. 275, 137 Pac. 1179, 1181.

15 Munden v. Bailey, 70 Ala. 63; III Com. on Wills-35

Noble v. Jackson, 124 Ala. 311, 26 So. 955; In re Moore, 72 Cal. 335, 336, 13 Pac. 880; Eppinger v. Canepa, 20 Fla. 262, 264; Sims v. Birdsong's Admr., 21 Ky. L. Rep. 75, 50 S. W. 993; Loeser v. Zimmer, 117 Mich. 207; Scudder v. Ames, 142 Mo. 187, 43 S. W. 659; Hurlbut v. Hutton, 44 N. J. Eq. 303, 15 Atl. 417; Young v. Kennedy, 95 N. C. 265; In re Schmidt's Estate, 185 Pa. St. 579, 40 Atl. 93; Baker v. Baker, 87 Va. 180, 12 S. E. 346.

16 In re Rehard's Estate, 163 Iowa 310, 143 N. W. 1106; In re Pickett's Will, 49 Ore. 127, 89 Pac. 377.