#### McPaxton, Ex. vs. Dickson et al.

"Where a portion of the heirs and distributees of an estate employ an attorney, to contest the settlement of the executor, the Probate Court has no power to direct the payment of the attorney’s fee, by the executor, out of the residuary fund of the estate: if it be a proper case for contribution, by all interested in the estate, the remedy is in chancery only.

Affeál from Sevier Ciremt Court.

Hon. SheltoN WatsoN, Circuit Judge.

S. H. Hempstead, and B. F. Hempstead, for tbe appellant.

To reverse these proceedings, and set aside this allowance, tbe appellant relies on tbe following points :

First — Because a court of probate is not invested with chancery jurisdiction; and that, without such ample and discriminating powers, it could not legally mate the allowance in question.

Second — That, even admitting chancery jurisdiction, still the Court erred, because they had not, by process, or any other mode known to the law, acquired jurisdiction over the parties in interest.

Third — Even conceding jurisdiction, and that all persons in interest had been before the Court; still the finding was not warranted under the authority found in 1 J. Oh. Ref. 22, as there was no evidence to authorize any such summary interference of the Court in favor of counsel, or the persons employing such counsel.

Fourth — The decision is wrong, not only on the ground of public policy, but against one of the prominent principles which govern courts of equity; for, if affirmed, it will produce instead of prevent litigation.

*98 Fifth — Because the decision is in no way final, as to the matters the exceptions filed pretend to settle, as the same matters may be renewed and re-investigated in a court of chancery.

CurraN & Gallagher, for the appellees.

The question we shall present in this case is, - whether where a distributee incurred a necessary expense, either for costs or solicitor’s fees in and about an estate, whereby all the distributees are bene-fitted, whether he is not entitled to a pro rata contribution from the rest of his co-distributees, and whether a solicitor has not a general lien for his costs on the duty recovered by his diligence, and if it is a fund in court, whether the solicitor’s lien dóes not attach to said fund? We think such to be undoubtedly the case. A solicitor has a general lien for his costs on the duty recovered by his diligence. If that is a fund in coirrt, his lien attaches to it, and it will not be paid out without providing for them. 1 Hoffman's Chemcery Practice, page 34/ Irvi/ng vs. Yia/na, 2 Yowng <& Ja/rvis 10.

If costs are decreed to be paid by defendants generally, each defendant may be called upon to pay the whole, and the court will enforce contribution among them. 2 Hoffmcm's Chmicery Practice, p. 12/ 2 Fowler's Fxch. Pr., a/nd case cited, Jones vs. Ca/wthorne.

Even a decree or judgment arising upon a matter distinct from them in litigation, cannot be set off to the prejudice of solicitor’s lien. Ib. 16 • Pimloin vs. Ymidenleigh, 1 Pañge 624.

The doctrine of contribution is not so much founded on contract, as on the principle of equity and justice, that where the interest is common, the burden also should be common, and the principle that equality of right requires equality of burden. CmnpbeZl vs. Messier, 4 John Oh. Rep. 334. %

, “In a recent case where, in a creditor’s suit, a fund had been realized by the diligence of the plaintiffs, and the assets were more than sufficient for the payment of the debts, the costs of *99tbe plaintiff as between party and party, were ordered to be paid out of tbe general fund. 2 Willicmns onMa’rs,j¡>. 1459/ Btmton vs. JKalfield, 1 Keen 358.

Mr. Justice Scott

delivered tbe opinion of tbe Court.

Tbe case presented by this record'is, that there being several beirs of John Paxton, deceased, two of them, tbe appellees herein, feeling dissatisfied with- tbe course of conduct pursued by tbe executor in tbe settlement and management of tbe estate, and desirous to stimulate him to a more strict performance of bis duties, to which they allege him derelict, employed counsel who rendered tbe professional services they required, made out bis bill against tbe parties who Employed him, and upon their application tbe Probate Court ordered it to be paid, by tbe executor, out of tbe residuary funds of tbe estate, and that be credit himself for tbe sum so paid out, that Court being of tbe opinion that although these counsel and atttomey’s fees bad been incurred at tbe instance of two only of tbe several distributees, tbe burthen of their payment ought to be borne in equal proportion by all of them. Tbe nature of tbe professional services rendered} and so ordered to be paid for out of tbe estate, will appear, by their specification, in tbe account made out by tbe counsellor and attorney, which is as follows:

Hannah L. DioesoN, by JohN Digxson, hse guardian, and JohN DicKSON, a aiute, by JohN Dioeson, his Next eeiend,

To Thomas HuMo/rd, Dr.

1850. For retainer and arguing motion to quash settlement of Jesse McPaxton, as ex’r of tbe last will and testament of John Paxton, deceased, in tbe Sevier county court of probate, at tbe January term,

1850,. $ 50 00

For drawing exceptions to tbe settlement of tbe said Jesse McPaxton, as such ex’r, and arguing tbe same in said court of probate, and obtaining order of said -court referring said settlement to an auditor,. 100 00

*100For drawing complaint, affidavit, and motion against said Jesse McPaxton, as sucb ex’r, and arguing tbe same in tbe court of probate of Sevier county, and obtaining rule on said Jesse, as sucb ex’r, to perfect bis bond as sucb ex’r,. 100 00

For attending and arguing exceptions of said Jesse, as sucb ex’r, to report of auditor and settlement of account, . 50 00

For atttending court, and arguing matter of reference before j ury, arising upon exceptions to auditor’s report and settlement of accounts,. 50 00

$ 350 00

From tbis decision of tbe Probate Court, tbe executor appealed to tbe Circuit Court, all the parties waiving upon tbe record tbe affidavit, and all technicalities and formalities relating to tbe appeal. The cause was beard there “ upon tbe transcript and bill of exceptions certified from tbe Court of Probate,” as is stated in tbe record of tbe Circuit Court; no error being found in tbe proceedings, opinion and judgment of tbe Probate Court, they were in all things affirmed; and tbe executor appealed to tbis Court.

N o question was made below, nor is made here, as to whether or not tbe professional services in question were rendered, or as to the reasonableness of tbe charges made for them; but only as to whether they were a proper charge upon tbe residuary fund of tbe estate in tbe bands of tbe executor undistributed.

Although it might be held that tbe solicitor has a lien for his reasonable charges on tbe duty recovered by his diligence, and if it be a fund in court, that his lien would attach to the fund, that would not-determine-the question involved; .because it is not pretended that the solicitor in tbis case was retained'by all the persons interested in the fund. Tbe proposition could therefore establish nothing more than that bis lien would attach to the'interest of his client only.

The true question is one of contribution simply between parties, *101resting not upon contract but upon principles of pure equity ; that where the interest is common, the burden should also be common; and that equality of right requires equality of burden. Campbell vs. Messier, 4 John. C. R. 334.

The probate courts, as regulated in our system, in the main proceed in rem, not inter p>artes¡ otherwise than indirectly in general, although, in particular cases, means are provided by statute, whereby persons interested may come in and become direct and active parties. And consequently, although in its legitimate operations in rem, in winding up the estates of deceased persons, and incidentally allowing proper charges against the subject matter of its cognizance, it does, indirectly, work contribution, it does so, not as a principal matter of jurisdiction, but simply as an incidental consequence of its jurisdiction in rem in matters of administration. It is mainly in the chancery court that contribution is administered, as a principal head of jurisdiction, after the parties are called in and heard upon the merits of their case. It cannot be pretended that the Legislature has, any where, in express terms,, invested such a jurisdiction concurrently in the probate courts: and it is by no means clear that such an act would be constitutional if passed. And it would be but a slight ground upon which to imply such concurrent jurisdiction, that the fund, out of which jurisdiction is sought, is committed by law to the custody, for the time being, of the Probate Court. As well might an individual claim such a jurisdiction because he happened to be the' custodian of a like fund, and was authorized to preserve and administer it in a specific manner for the benefit of the parties interested.

In this case, where the Probate Court has attempted to perform the functions of the chancery court, without first calling the parties to be affected before it, that they might be heard, -there is no pretence that the burden, which the contribution sought is to lightenj was taken on, either in the ordinary course of administration, or by any party which the law recognizes as a custodian of the estate alleged to have been preserved, or -as an agent in *102its administration; and bence tbe claim for contribution rests solely upon grounds of pure equity, and not upon strict law.

TJnder wbat provision of tbe law were these parties authorized to employ attorneys and counsellors, to aid in tbe administration of the estate? None can be pretended. If employed at tbe suggestion of their own interests, and tbe result was favorable not only for themselves, but for others, whose interest was inseparably united with their own, it might be a case to submit to the chancellor to be determined by him upon an equitable claim for contribution; but it made no case for the cognizance of the Probate Court.

¥e think, therefore, that the judgment of the Circuit Court was erroneous, and it must be reversed, and the cause remanded, with instructions to that Court to sustain the exceptions taken in the Probate Court, and make such decision as that Court ought io have made, in conformity with this opinion.