This action was referred, and upon the findings of the referee and the court, judgment was entered for the plaintiff.
The facts are, that R. C. D. Beaman died in 1884, and R. J. W. Beaman qualified as his administrator, and before the estate was fully administered the administrator died, and in 1897 the defendant qualified as (309) administrator d. b. n. on said estate. Said administrator contracted with plaintiff, as his attorney, to aid him in administering and settling the estate of his intestate. The plaintiff now sues the administrator d. b. n. for services rendered the first administrator, and defendant declines to pay the account on the ground that it is not a charge on the estate in his hands.
It is very well settled that if an administrator employs counsel to assist him in his administration, the contract is personal, and is not a debt against the intestate's estate. The administrator must pay it, and if the disbursement is proper, it will be allowed him in the settlement of his account with the estate. The Court will allow such commissions, charges and expenses as it may deem reasonable and just, whether it is equal to or less than the contract price. Devane v. Royal, 52 N.C. 426; Kessler v. Hall,64 N.C. 60.
Plaintiff does not seriously dispute the above rule, but falls back on the equity of his case. He contends that inasmuch as the courts will allow the administrator's voucher, the court ought to coerce the payment out of the assets of the estate. The fallacy is that it is not a debt of the estate, as no debt of the estate can be created after the death of the intestate or testator. He relies on Edwards v. Love, 94 N.C. 365. That case was upon a state of facts unlike the present. The testator directed his executor to employ the plaintiff as agent to sell lands and the executors contracted with him in obedience to such directions, and it was held that the executors were personally liable on the contract, but as it was entered into under the directions of the will and the services were for the benefit of the estate, payment might be coerced out of the assets of the estate. It was as if the testator had made the contract and the services were rendered after his death, in the course of administering (310) the estate. The law must fit the facts.
The plaintiffs emphasized the fact that legal and equitable remedies are now allowed in the same action. That is true, but the distinction between legal and equitable principles is the same as it was before the Constitution of 1868. This fact seems frequently to be overlooked or misapprehended. *Page 223
We think plaintiff's remedy is against the representative of the administrator with whom he contracted and not against the estate of the defendant. There was error.
REVERSED.
Cited: Kelly v. Odum, 139 N.C. 282; Craven v. Munger, 170 N.C. 427;Cropsey v. Markham, 171 N.C. 46; In re Stone, 176 N.C. 344.