December 1, 1923. The opinion of the Court was delivered by The Court is of the opinion that appellants' first, second, and third exceptions are well taken, and should be sustained. Even if it should be conceded that Judge N.G. Evans, holding the Court of Common Pleas for Barnwell County under a special commission, had jurisdiction to make the orders in a cause pending in another County in a different Circuit, such jurisdiction could in no event be acquired without the consent of the real parties in interest to the controversy which was attempted to be adjudicated. That controversy was between the executors of the Young will and their attorneys as to the amount of compensation to be paid by the executors for certain professional services. In such matter, clearly, the executors were not bound by the consent of their attorneys of record in the cause in which the services in question were rendered. As *Page 69 was said by this Court in Cauthen v. Cauthen, 76 S.C. 226;56 S.E., 978:
"A party to an action is bound by the consent of his attorney in proceedings in Court respecting those matters only which are within the scope of the action. Not only was the order of reference as to fees not within the scope of the action, but it was a step in the adjudication of a matter in which, from the very nature of things, Messrs. Green Hines could not represent Cauthen. When a legal proceeding is set on foot to have a claim of one person adjudged a debt due by another, the two individuals, in a legal sense, are in antagonistic relations, and neither, as to that particular matter, can be the representative of the other. The fact that the inquiry relates to a claim for services rendered in the confidential relation of attorney and client only emphasizes the impossibility of representation in such circumstances."
The contention that because the executors were trustees they were not competent to act for themselves in determining the amount of compensation to be paid attorneys employed by them in the discharge of the duties of their trust is untenable. Where a trust estate is attacked by third parties, it is as much the duty of the Trustees to see that the amount of compensation paid to attorneys is not excessive as it is to employ counsel. So strictly are they held to a careful discharge of that duty that this Court has declared that the better practice is for the trustee to obtain the sanction of the Court to which he is accountable for the administration of his trust before counsel fees are actually paid out of the trust fund. Turnipseed v. Sirrine,60 S.C. 272; 38 S.E., 423. Here the executors are not seeking the sanction of the Court to make a contract for the employment of attorneys or to pay counsel certain fees. This action does not involve the administration by the executors, or by the Court, of the trust fund. The cause at bar, in which it is sought to have the Court adjudicate the *Page 70 amount which the trustees shall pay counsel for services rendered in the cause, involved merely the question of whether a trust attempted to be created by the will of Dr. Young was, in fact and in law, actually created. The matter of employment of and settlement with counsel by the executors of the will involves no equities inhering in the case or growing out of it, but rests upon "contract rights strictly legal in character, in the determination of which either party is entitled to a jury trial." Cauthen v. Cauthen,supra,. Ex parte Fort, 36 S.C. 19; 15 S.E., 332.
Under the foregoing view the remaining exceptions require no consideration.
It is accordingly adjudged that the orders of Special Judge Evans appealed from be, and are hereby, reversed.