(dissenting).
I cannot agree with the majority.
To begin with, the appellants in this case had a claim against the *17estate for something in excess of $7,000. In the ordinary course of events, for the purpose of securing payment of this claim, the attorneys would have been concerned only with establishing the validity of the claim and its relative priority to other claims. The validity of this claim, however, has never been disputed by the estate nor has there ever been any doubt that it was a general unsecured claim against the estate. However, in the matter before us the entire efforts of the attorneys for appellants were directed toward securing a proper administration of the estate; that is, toward seeing that sufficient funds were either left in the estate or replaced in the estate for the purpose of satisfying not only appellants’ claims but all the claims. Thus, while it is true that these attorneys were attempting to secure payment of their clients’ claim, in order to do so they had to perform a function entirely apart from that which an attorney for a claimant should properly have to perform; namely, the securing of a proper administration of the estate.
In connection with this the following facts must be pointed out: This estate was improperly administered; there would have been sufficient funds in the estate from the beginning to pay all of the outstanding claims against it; and there were grounds for suspicion on the part of appellants’ attorneys. Following the taking of evidence, the court stated from the bench:
“* * * Creditors and all parties interested in an estate have a right to rely upon and expect that the administration shall be had honestly and fairly in accordance with the statutory provisions. Whether Mr. Gray has been unduly suspicious or not isn’t the concern of this Court. The evidence is clear that there was ground for suspicion.”
In fact her own attorney characterized this proceeding when he stated:
“* * * j submit to the Court very respectfully that, regardless of his efforts, Mrs. Shablow would have, before she made her final account, come clean with absolutely everything; and I should not use the words ‘come clean’ because I feel that she fully intended to make a full and complete account at all times. It was not her intention to conceal anything. Had they been a little more patient, in the end they would have received what was justly due them.”
*18A person holding a claim against an estate should not have to retain attorneys for the sole purpose of securing a proper administration of that estate, and, when this is necessary, it should not be said that the attorneys’ efforts were not for the benefit of the estate. A contrary view in my opinion would deprive M. S. A. 525.49 of one of its most useful attributes.
The majority states that § 525.49 contemplates a recovery “of some asset or fund which the representative either has refused to pursue or has failed to recover; which has been brought into the estate for the benefit of the heirs and those interested in the estate; and which otherwise would not have been there.” The record here seems clear that the stipulation covers assets or money that remained in the estate or had to be replaced by the administratrix. This of course plainly represents an asset in the estate which, but for the services of the attorneys in question, would not have been there. Apart from this, however, the applicability of this statute to the set of facts presented here is not an issue. The parties in effect stipulated that the statute applied to these facts and the trial court held that the statute applied. No proceedings have been taken to vacate or void the stipulation nor has a cross-appeal been taken challenging this holding.
With reference to the intent of the parties it is my opinion there are no ambiguities in the stipulation. It provides very clearly, among other things, that definite sums of money would be surcharged to the account of the administratrix. The only doubt that arises in connection with this stipulation is with respect to the subjective reasons of the administratrix for becoming a party to it. This doubt is raised only by collateral representations made by her attorney after the stipulation was made and absolutely unsupported by any evidence in the record. The stipulation itself covered many of the issues that had been raised in this action. These issues were resolved by mutual agreement, therefore it does not seem proper for the majority to go behind this stipulation. Yet the majority sets forth many of the issues covered clearly by the stipulation and one by one indicates a decision contrary to the stipulation. These issues were not fully tried, much less argued and briefed, so it seems to me that it would be mere speculation and conjecture as to the outcome of those issues if they had been tried. Besides, it would *19seem that a dangerous precedent would be set to indicate what this court’s decision would be on issues before they have been tried, argued, or briefed. For these reasons it would seem improper to discuss the merits of these issues.
The last comment necessary concerns the majority treatment of the assignment of claims to the administratrix’s sister. It seems to be taking judicial notice of the fact that one sister will not present a legal claim against another sister.
This court has no judicial right to use such an assumption in arriving at its decision. If . these claims were completely dead, as seems to be contended by the majority, one might well be justified in asking why they were not released in the first place rather than being assigned to the sister. In answer to this question it may well be inferred that someone intended to keep these claims alive for certain purposes. In other words the inference would be justified that when these claims were assigned there were circumstances under which the sister would have asserted the claims. It may well have been planned to assert the claims if the appellants had not brought into the estate a sufficient amount to pay all of the claims. The result of asserting the sister’s claims in such a situation would have been to prevent the appellants from being paid in full as they would then have had to share the assets pro rata with her.
The only issue raised on appeal here was whether under § 525.49 the court allowed as compensation such attorneys’ fees out of the estate as are just and reasonable and commensurate with the benefit to the estate.
In the instant case after a full trial before the probate court on objections to the final account there was still not a sufficient amount to pay the claims in full of any of the creditors. Thus after already having spent a great deal of time preparing for complicated issues it would be necessary to benefit the estate by retaining in the estate or bringing back into the estate an amount sufficient to pay all of the creditors.
Before the case went to trial in the district court the administratrix’s sister had received an assignment of essentially ah of the claims of the creditors other than the appellants.
However, it is clear that appellants’ attorneys even at this point would have had to benefit the estate in an amount sufficient to pay all *20of the claims, even those held by the sister, in order to receive payment in full of appellants’ claims. In this connection appellants contended that the accounts of the administratrix should have been surcharged in excess of $17,000 over and above what the probate court had already surcharged her account. The appellants by way of stipulation prevailed in this contention.
The majority opinion would now treat the situation as though appellants had not prevailed, which is contrary to the stipulation. It is evident that the issues were complicated and one of appellants’ attorneys stated as an officer of the court, which statement was uncontradicted, that they had spent 25 full days on the case, 7 of which had been taken up with hearings.
We recognize that in awarding attorneys’ fees the courts must be ever watchful not to make awards or allowances that are so high as to be unreasonable, unconscionable, or unfair to the clients served. At the same time it seems to me that it is our duty as a court when called upon to review such awards to take into consideration the ability and experience of the lawyers performing the duties, the work done, hours involved, and the results accomplished. Too often clients have little knowledge of the many hours of preparation, research, investigation, and consultation which is performed by attorneys in connection with the trial of a lawsuit or in handling other legal matters. The result is that often the client bases the value of such services on the few consultations he may have had with the attorney involving the matter under consideration. If fees were to be determined on that basis it would be a simple matter to jeopardize the efficiency of our legal system. When that occurs the rights of a client are also jeopardized.
It is my opinion under the record in this case that $2,500 attorneys’ fees would be a reasonable allowance.
For the above reasons I respectfully dissent from the majority.