McKee

Action to recover attorney's fees. Defendant had judgment, and this appeal is by plaintiff from the judgment and order denying his motion for a new trial. It appears that Emile Soher and Adolph Soher were *Page 369 administrators, with the will annexed, of the estate of Lewis Soher, deceased, and had different attorneys representing them as such administrators. In April, 1900, they filed and presented for settlement their joint account of their administration, and at the same time each filed and presented his separate account of his administration. Upon the hearing of the accounts certain objections were sustained to items in the separate accounts, and they were allowed as to all other items, and the joint account was allowed as presented. After the accounts were filed the powers of Adolph Soher as such administrator were suspended by order of the court, and in the decree allowing the accounts appears the following clause: — "And it appearing that, since the filing of said accounts, the powers of said Adolph Soher, as such administrator, have been suspended by order of this court duly made and given, and it further appearing that, on the hearing of said account, application…

In my opinion there should be a rehearing in this case for further consideration of one of the points decided in the opinion of the court. In effect, it is held that when, upon petition of an administrator, the court has, in settling his final account, ascertained the sum justly due to his attorney for his services in the settlement of the estate, and has authorized him to withhold so much of the fund in his hands awaiting distribution, for the express purpose of paying it to his attorney, and has awarded to the distributees only the residue of the estate, after deducting that and other allowances to the administrator, — that all this gives the attorney no right of action to recover the sum so allowed for his services and actually placed in the hands of the administrator for the purpose of paying him. It seems to me very clear that upon this state of facts the attorney, if he demanded the sum so allowed, and thereby signified his acceptance of the allowance, would have a perfect cause of action for so much money had and received to his use, subject, of course, to any defense open to one who has been paid money upon an agreement that he would pay it to another. In this case…