In my opinion there should be a rehearing in this case for further consideration of one of the points decided in the opinion of the court. In effect, it is held that when, upon petition of an administrator, the court has, in settling his final account, ascertained the sum justly due to his attorney for his services in the settlement of the estate, and has authorized him to withhold so much of the fund in his hands awaiting distribution, for the express purpose of paying it to his attorney, and has awarded to the distributees only the residue of the estate, after deducting that and other allowances to the administrator, — that all this gives the attorney no right of action to recover the sum so allowed for his services and actually placed in the hands of the administrator for the purpose of paying him.
It seems to me very clear that upon this state of facts the attorney, if he demanded the sum so allowed, and thereby signified his acceptance of the allowance, would have a perfect cause of action for so much money had and received to his use, subject, of course, to any defense open to one who has been paid money upon an agreement that he would pay it to another.
In this case it is found that more than the sum allowed had already been paid to the plaintiff by the co-administrator of the defendant; and if the fact was so, this, no doubt, was a good defense, which the defendant was bound to make in the interest of the distributees or of his co-administrator. But in the absence of this, or some other valid defense, he would, in my opinion, have been properly held liable in this action.