Gould

This action was brought in the lifetime of James H. Blanchard to recover upon a promissory note made in favor of Samuel F. Baker, of whose estate plaintiff is the special administrator. The judgment was in favor of plaintiff, and the defendant, in his representative capacity as executor of the estate of Blanchard, appeals. Summons in the action was not served upon Blanchard, but after his death his executor was substituted as party defendant and a claim for the amounts sued for was regularly presented to such executor. The executor allowed the claim for the principal amount of the note and interest and rejected the same as for any attorney's fees or costs. Supplemental complaint was then filed, in which the substance of the original complaint was incorporated, together with appropriate allegations showing the death of the maker of the note, the appointment of the executor, and presentation of the claim. The summons was issued upon this supplemental complaint and served upon the executor. [1] One of the points made by appellant is that he should have been served with the summons on the original complaint. However, *Page 535 the plaintiff appears to have proceeded in strict…

The application for a hearing in this court after decision by the district court of appeal of the second appellate district, division one, is denied. As to the refusal of the trial court to allow testimony to sustain the claim of defendant's testator for attorney's fees for services rendered in the matter of the Estate of Baker, if the services were rendered to someone authorized to bind the estate, the action of the trial court is correct, for the reason that the matter was one to be adjudicated in the pro bate proceedings. Shaw, J., Lawlor, J., and Sloane, J., concurred. *Page 538