delivered the opinion of the court:
There were three executors of the estate of Edward P. Griswold, deceased, to-wit, the widow Mary C. B. Griswold, one of the sons, Edward B. Griswold, and the appellee, Willis D. Smith. The judgment, entered by the Appellate Court on October 4, 1904, remanded the cause to the circuit court of Cook county with directions to that court to ascertain and allow jointly the fees of the three executors for their services as such, “unless one or more of them waive and relinquish his or their right thereto, or fail to make an application in that regard within thirty days after the re-docketing of this .cause in the circuit court. If at the end of thirty days appellee be the only executor, who applies for compensation, said court shall allow him $2000.00.” When the cause was re-docketed in the circuit court after the judgment of the Appellate Court entered on October 4, 1904, the circuit court, on May 9, 1905, entered a judgment, from which it appears that the widow and the son, two of the executors, did not make any claim to be allowed compensation as such executors, and that said Smith was the only executor, who applied for compensation as such executor; and it was thereupon ordered by the court that there be paid to appellee, as and for his services as such executor, the sum of $2000.00, which the court found to be a reasonable and proper executor’s fee for his services to said estate.
Inasmuch as the widow and son, acting as executors, failed to make any application for their fees, the only question in this case is, whether the judgment of the court, allowing the appellee $2000.00 as fees for his services as executor, is correct or not. It is not denied on the part of the appellants that the appellee performed valuable services for the estate as executor, nor is it claimed that the sum of $2000.00 is an unreasonable amount to be allowed to the'appellee as executor for such services. As is shown in the case of Gris-wold v. Smith, 214 Ill. 323, the sum of $2000.00 is much less than the amount authorized by the statute to be allowed to the appellee for his services under the circumstances of this case. As the objections to the allowance of the sum of $2000.00 did not question the value of the services, nor the amount of the allowance, the objections to the allowance are of a somewhat technical character.
On January 31, 1901, the court below entered an order, approving the final account of the executors and discharging them, but without making any allowance of fees to any of the executors for their services. The appellee, on or about February 6, 1901, made a motion to set aside the order of January 31, 1901, approving the final account of the executors and discharging them, and that his fees as one of the executors be allowed by the court. On March 8, 1901, the probate court made an order denying the motion. An appeal was taken by appellee from this order to the circuit court. In the circuit court Mary C. B. Griswold, the widow, and Edward B. Griswold, one of the sons, two of the executors of said will, entered their appearance, and hied an answer and also a motion to dismiss the appeal. On March 21, 1903, the circuit court found that the probate court erred in denying the motion of appellee to set aside the order, approving the final account and discharging the executors, and that there should be paid to appellee for his services the sum of $2000.00. It is contended, in the first place, that the circuit court erred in refusing to dismiss the appeal from the probate court upon the alleged ground that the widow, heirs and legatees were necessary parties to the appellee’s motion to set aside the order of January 31, 1901, and allow him his fees as executor, and that the widow, heirs and legatees, being necessary parties, should have been served with notice.
Section 112 of the Administration act provides that “no final settlement shall be made and approved by the court unless the heirs of the decedent have been notified thereof, in such manner as the court may direct.” (1 Starr & Curt. Ann. Stat.—2d ed.—pp. 336, 337). The statute thus requires notice to the heir's of any proceeding for the approval of the final account of the executors. The motion here under consideration, however, was not such a motion as is contemplated by section 112, but is a motion to set aside the order approving the final account, and to allow fees for services as executor. There is nothing in the statute, which requires notice to be given to thé widow, heirs and legatees of a motion to fix the fees of an executor. Section 133 of the Administration act provides as follows: “Executors and administrators shall be allowed as compensation for their services a sum not exceeding six percentum on the amount of personal estate, and not exceeding three percentum ■ on the money arising from the sale of real estate, with such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable.” (i Starr & Curt. Ann. Stat.— 2d ed.—p. 348). The allowance of fees to the executors is a duty, which is imposed by law upon the probate court. The amount is to be determined by the court upon the application of the executor. It appears clearly from the record that, before the appellee made his motion to set aside the order of January 31, 1901, and to fix the allowance of his fees, he gave written notice to John Schwender, attorney for the executors. It is not denied that Schwender was the attorney of all three executors, and acted for them in the administration of the estate. He was also the husband of one of the heirs of the estate. In the present case, he must be held to have represented the widow, the heirs and legatees, as well as the executors. The final report of the executors was entrusted to Schwender to be presented to the probate court, and was by him presented to the probate court and approved. Upon that report was endorsed an entry of appearance, signed by the widow and all the heirs and legatees of the deceased testator, in which they waived notice and ratified the final report of the executors. Schwender was entrusted, not only with the final account of the executors to be presented to the probate court, but he was also entrusted with the written entry of appearance and ratification of said account or report, signed by the heirs and legatees of the deceased. He is, therefore, to be regarded in this case as representing not only the executors, but the heirs and legatees. He acted for the heirs and legatees in presenting their ratification of the final report, as well as for the executors in obtaining the approval of that report. As Schwender had written notice of appellee’s motion to fix his fees and set aside the order of January' 31, 1901, it must be held in this case that the widow and heirs and legatees, as well as the two executors besides appellee, had notice of the motion. The order of the probate court, entered on March 8, 1901, denying the motion of appellee, contains the following recitation : “All parties in interest being present in open court or represented by counsel, on hearing had it is ordered by the. court that the prayer of said motion be and the ■ same is hereby denied.” This recitation, that all parties in interest were present in open court or represented by counsel, refers as well to the widow, heirs and legatees, as to the executors, all of whom were represented by Schwender. We are, therefore, of the opinion that, even if notice of the motion in question to the widow, heirs and legatees was required, such notice was in fact given. But, as is well said by the Appellate Court in their opinion: “The heirs will have their day in court whenever the court will again be asked to discharge the executors and approve their final report and account.”
It is said, however, that the order of January 31, 1901, approving the final report and account of the executors, together with the ratification thereof by the widow, heirs and legatees, was a decree entered by consent, and could not therefore be set aside or vacated except for fraud, accident or mistake. The court certainly had jurisdiction to entertain the motion to set aside the order. The order was made on January 31, 1901, and the motion to set it aside, and fix the allowance of the executor’s fees, was made on February 6, 1901, during the January term of the court. In other words, the motion to set aside the order was made at the same term, at which the order was entered. Inasmuch as the motion was made before the expiration of the term, the probate court still had jurisdiction to fix the amount of the executor’s fees, and to make the proper order for its allowance and payment. When the court entered the order, approving the final account of the executors and discharging them, the matter of the allowance of fees to the executors was not brought to the attention of the'court, and was not passed upon. Even if the rigid rule, that the order of January 31, 1901, was a consent decree, and could not be set aside or vacated except for fraud, accident or mistake, be applied to this case, we are of the opinion that such order was entered either through fraud, accident or mistake. The attorney, John Schwender, who represented the executors, was presented with the account and the ratification thereof by the heirs, and was requested by appellee, one of the executors, to call the attention of the court to the executor’s fees, and to have the fees allowed. The affidavits show that Schwender agreed to present this matter to the probate court, but failed to do so. He took the final account of the executors, with the endorsement thereof of the heirs, to the probate court, and handed it to an assistant of the probate judge, but neglected to present it to the judge. After his first presentation of the report he was again requested by appellee, after the latter had learned that the attention of the court had not been called to the subject of the fees, to bring up said subject before the probate court, and have the amount of the fees fixed and allowed. The appellee told Schwender that he was willing to take such fees as the probate court might fix upon. It appears clearly to us from the record that Schwender violated his promise, and neglected, without any good excuse, to call the attention of the probate court to the matter in question. There was certainly a case made out under the admitted facts, which will come either under the head of fraud, or of accident, or of mistake. There was no waiver by appellee of his claim for fees, nor any consent on his part to a discharge without the allowance of fees. The question of fees not having been passed upon by the court, the allowance thereof was not adjudicated, nor determined by the order of January 31, 1901, and, therefore, it cannot be said that appellee is concluded by that order, as if entered by his consent, from asking for an allowance of a fair and reasonable fee.
Appellee, as executor, could not fix his own fee, which was to be determined by the court. Therefore, he was not to blame for making no entry in the final account prepared by him for the executors in reference to the amount of such fee. In the absence of an express waiver by appellee of his fees, it was the duty of the probate court to determine the amount to be allowed to him, and such amount would have undoubtedly been fixed, if the attention of the court had been called to the subject.
It is furthermore said that the appeal from the probate court to the circuit court should' have been dismissed by the latter court for the alleged reason that Smith’s appeal bond was not in conformity with the order of the probate court granting the appeal. That is to say, it is contended that the order allowed an appeal to appellee as executor, whereas the bond was executed by him in his individual capacity. We have examined the abstract and the record, and we do not find it to be true that an appeal was allowed to appellee as executor. The following is the recital upon this subject in the abstract prepared by the appellants: “And thereupon the said Smith prayed an appeal to the circuit court from said order denying said motion, which is granted upon his presenting to this court for approval his appeal bond in the penal sum of $200.00, conditioned as the law directs, with surety, to be approved by this court within twenty days.” Furthermore, as is well said by the Appellate Court in the first opinion filed by them in this case, “furthermore, the precise point is made in this court for the first time. Had it been made in the court below a new bond might have been filed.”
It is also said that the order of the probate court, denying Smith’s motion to set aside the judgment of January 31, 1901, and fix the executor’s fees, was not an appealable order, and that, therefore, the appeal should have been dismissed by the circuit court for that reason. , We cannot agree with counsel for appellants in their contention upon this subject. The order, which denied appellee’s motion, was a final order with respect to the allowance of compensation to him as executor. Section 124 of the Administration act provides that “appeals shall be allowed from all judgments, orders or decrees of the county court, in all matters arising under this act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit to the Supreme Court, as in other cases, and bonds with security to be fixed by the county or circuit court, as the case may be.” (1 Starr & Curt. Ann. Stat.—2d ed.—p. 345). Appellant was injured by the order denying his motion, because it deprived him of all compensation for his services as executor. It would not have been proper for him to attempt to take an appeal from the order, approving the final account, because that order contained no adjudication personal to himself, as it said nothing about executor’s fees. The probate court was not called upon to take action in the matter of his fees, until he made his motion to set aside the order of January 31, 1901; and, therefore, the order, from which he could properly appeal, was the order denying that motion.
In addition to what is said above, it appears that the appellants themselves asked the Appellate Court to enter an order, affirming the judgment of the circuit court entered on May 9, 1905; and it would appear that the Appellate Court entered its judgment, affirming that order pro forma at the request of appellants. The appellants in this court cannot seek to call in question a judgment, which was rendered in the court below at their request and by their' suggestion. (Smith v. Kimball, 128 Ill. 583). In Smith v. Kimball, supra, it was held by this court that, where the judgment or decree of the trial court is affirmed by the Appellate Court, pro forma, on the motion of the appellant, under a stipulation of the parties that the decree or judgment shall be so affirmed, the appellant, on an appeal to this court, cannot assign for error the judgment of the Appellate Court, so entered at his or its request.
For the reasons above stated,-the judgment of the Appellate Court, affirming the judgment of the circuit court, is affirmed.
, , , rr. , Judgment affirmed.