Matter of the Estate of F. W. R. Stutt-Meister

Paterson, J. —The petitioner herein is an attorney at law. On June 12, 1884, he filed a petition in the probate department of the superior court, asking for an order citing V. R. and W. 0. Stuttmeister, Bertha M. Byer, and George C. Hoadley, guardian of the estate of Alice L. Stuttmeister, a minor, to appear and show cause why they should not pay the petitioner their proportion [347]of the sum of three hundred dollars, claimed by him as an attorney fee.

In his petition he alleged am,ong other matters that the executor of the last will of Stuttmeister, deceased, had grossly neglected the duties of his trust, and delayed the settlement of the estate; that the heirs and devisees were unable to learn anything about the affairs of the estate; that two of the heirs, V. R. Stuttmeister and B. M. Byer, being greatly in need of money, retained the petitioner as their attorney to prosecute the matter in their behalf, he consenting to act without a retaining fee; that he was retained by them as their attorney to prosecute their claim for themselves and minor heirs; that Hoadley, as guardian of the estate of the minors, retained him to prosecute on behalf of the minors proceedings against the executor on the same terms and conditions. He further alleged that, in pursuance of his agreement, he had performed services which were worth the sum of three hundred dollars; that he had presented his claim to the heirs and Hoadley, the guardian, and demanded payment, but all objected to the payment of the same except the guardian, who was willing to pay whatever sum the court might allow.

On September 19, 1884, the default of the respondents for failure to answer the petition was entered. On October 8, 1884, the court made an order allowing the petitioner three hundred dollars “ for services rendered as attorney for the heirs herein "in hastening the administration of the estate,” and ordered “ that judgment be entered in favor of petitioner for the sum of three hundred dollars .... to be paid from said estate in due course of administration.” Ho appeal was taken from this order. Thereafter on May 11, 1887, the petitioner filed another petition in said estate, setting forth the making of said order and praying that the administrator of said estate be compelled to pay him said sum of three hundred dollars. To this petition the administrator filed an answer, and the matter coming on to be heard, the court [348]