Estate of Cates

WASTE, J.

Claire A. Cates, as executrix of the estate of Alton M. Cates, deceased, appeals from that portion of an order or decree in the matter of the estate of Horace G. Cates, deceased, allowing attorney’s fees earned by Alton M. Cates during his lifetime, as attorney for the estate of said Horace G. Cates, deceased, but offsetting against such allowance the amount of certain notes made by Alton M. Cates to Mary B. Cates, administratrix of the estate of Horace G. Cates, deceased, during the administration of the latter estate. The effect of the order is that, although the court sitting in probate found that Alton M. Cates during his lifetime rendered services .to the administratrix of the estate of Horace G. Cates, for which Alton’s estate was entitled to an allowance of $1,351, his executrix received nothing in the transaction.

Horace G. Cates and Alton M. Cates were brothers. Horace died in 1911, and Mary B. Cates was appointed administratrix of his estate. Alton M. Cates and other counsel acted as attorneys for the administratrix until Alton died in November, 1920. At the time of the death of Horace there were among his effects several notes made by Alton, recovery on all of which, but two, aggregating $1,391, had become barred by the statute of limitations. After the appointment of Mary B. Cates as administratrix of the estate of Horace, Alton Cates, on June 9, 1911, executed two notes in favor of the administratrix as renewals of the two obligations not barred by the statute. One of these was in the principal sum of $1,249, and the other for $142, each bearing interest, and payable on or before June 9, 1915. Nothing was ever paid on either of the notes, nor were they ever renewed.

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Consequently, they were barred by the statute of limitations June 9, 1919.

Alton M. Cates died November 23, 1920. His will was admitted to probate December 22, 1920, and the time for presenting creditors’ claims against his estate expired October 31, 1921. No claim was presented against his estate based on the notes executed by him in renewal of the prior indebtedness to his brother. In 1923, Mary B. Cates, as administratrix of the estate of Horace G. Cates, filed her final account and petition for distribution. Among other facts, she alleged that the statutory fees due to the attorneys for her as administratrix amounted to the sum of $3,179, in addition to which she prayed for an allowance for extraordinary services in behalf of her counsel other than Alton. Claire A. Cates, as executrix of the will of Alton M. Cates, thereupon filed objections to the final account, and petitioned for an order fixing the amount of compensation to be allowed for the services rendered by Alton during his lifetime to the administratrix of the estate of Horace. By stipulation, the matter of the final account with respect to attorney’s fees and the objections thereto, was referred for trial to a judge