BRITT, C.
Action for the alleged value of professional services rendered by plaintiffs as attorneys at law (they being partners in practice) to the defendant James F. Breen, and one John R. Breen, who were executors of the last will of a certain decedent. It appears that the executors employed plaintiffs to conduct the ordinary legal proceedings for the administration of the testator’s estate and in the defense of certain actions brought against the executors in their official character; such employment terminated upon the death of said John R. Breen, which occurred August 31, 1894. On July 13, 1895, the surviving executor, James F. Breen, hied in court his final account of the administration; therein he prayed a credit of twelve hundred and fifty dollars for the payment of plaintiffs and alleged that sum to be the reasonable value of their services. Before the account was filed plaintiffs notified the executor that they were dissatisfied with this sum; and after the filing thereof they filed written exception to the same, stating that said sum “is not reasonable compensation for the .services of said attorneys, and they ask leave to submit evidence to the court of the value of said services, to the end that said attorneys have from said estate reasonable compensation.” Upon the hearing of said account the plaintiffs were, it seems, present in court, but declined to introduce any evidence touching the item aforesaid; and the account was settled and allowed as rendered. Afterward plaintiffs brought this action; the administrator of the estate of John R. Breen, the deceased executor, is joined as a defendant with James F. Breen, plaintiffs having first presented their claim to him for allowance as a debt of said John R. Breen and the claim having been rejected.
The matters above stated appear from the findings of the court or the admissions of the pleadings. The court further found that no agreement or understanding was ever had between plaintiffs and the executors as to the amount of compensation for the [659]*659services of plaintiffs, nor the source from which payment was to be made, nor that they should receive such sum as the court should fix on settlement of the accounts of the executors; also, that the reasonable value of said services was the sum of eighteen hundred dollars; but the court held that “By reason of the conclusiveness on plaintiffs of the allowance in the probate court”—meaning the superior court sitting in probate in the matter of said final account—they were entitled to judgment for the sum of twelve hundred and fifty dollars only, which was entered accordingly.
1. Since there was no agreement that the attorneys should look for their fees to the estate or an allowance therefrom by the court, it follows that the executors were liable personally to them for their reasonable compensation; it was so decided in Dwinelle v. Henriquez, 1 Cal. 387, and has been more or less distinctly asserted in several cases since. (Gurnee v. Maloney, 38 Cal. 85; 99 Am. Dec. 352; Estate of Page, 57 Cal. 241; Estate of Ogier, 101 Cal. 385; 40 Am. St. Rep. 61; Estate of Kassen, 119 Cal. 489.) The law of this state is not peculiar in this regard. "It is a well-recognized principle,” says Judge Woemer, “that for liabilities contracted by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors.....It follows that the estate is not liable to an attorney for his services at the instance of an executor or administrator, but that the latter is himself liable in a suit by the attorney.” (2 Woerner on Administration, sec. 356.) And to the same effect, among other cases, are Mygatt v. Wilcox, 45 N. Y. 306; 6 Am. Rep. 90; Bowman v. Tillman, 2 Rob. N. Y. 385; Parker v. Day, 155 N. Y. 383; Thomas v. Moore, 52 Ohio St. 200; Barker v. Kunkel, 10 Ill. App. 407.
2. Section 1635 of the Code of Civil Procedure, relating to the accounting of executors and administrators, provides that “any person interested in the estate” may contest the account on the hearing thereof; and section 1637 following provides that “The settlement of the account and the allowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate,” with a saving in favor of persons under legal disability. Defendants urge that plaintiffs were persons “interested in the estate” within the meaning of these sec[660]*660tions, and are in virtue of the same estopped to claim more than was allowed to the executor for their compensation on settlement of his final account. We cannot agree with defendants. The law being that the estate is not liable to the attorney, it must be also that the attorney is not interested in the estate. This court has often decided that the allowance from the estate for attorney’s fees under section 1616 of the Code of Civil Procedure must be made to the executor or administrator, and not to the attorney (Estate of Levinson, 108 Cal. 458, and cases cited); which construction of the statute is reasonable in view of the rule that the representative and not the estate is liable to the attorney, but that could scarcely be said if the attorney is really a person interested in the estate to the amount of his fees. It is hard to see how the court, under ordinary circumstances, could compel the representative to take more from the estate for payment of his attorneys than he has himself claimed for that purpose in his account. Unless the attorney has agreed to accept for his fees the allowance made by the court to indemnify the executor or administrator in that behalf, there seems as little reason for saying that he is concluded by the order making such allowance as that persons having claims against the representative founded on the latter’s tort or breach of contract, committed while acting for the estate, can be affected by the settlement of his accounts. In the absence of an enabling statute the court in probate cannot adjudicate between such persons and the executor or administrator. (Woerner on Administration, sec. 152, 356; see Eustace v. Jahns, 38 Cal. 3; Estate of Burdick, 112 Cal. 387; Sterrett v. Barker, 119 Cal. 492; Worrall v. Harford, 8 Ves. 4; Johnson v. Leman, 131 Ill. 609; 19 Am. St. Rep. 63.)
The circumstance that plaintiffs filed exceptions to the executor’s account is unimportant. If they were interested in the estate, the order of the court (made on due notice) concludes them, whether they contested the account or not; if they were not interested, they had no right to contest it, and the filing of exceptions could not give them an interest. The fact of such appearance may have been evidence bearing on the question whether they expected or agreed to look to the estate for their fees; a question settled, however, by the findings in the negative.
[661]*661We are not- insensible to the force of defendants’ argument ab inconvenienti; it is said that if the representative pays the attorney in advance of settlement he may find that the court will consider the charge too great and refuse him credit for the payment—as happened in Estate of Gasq, 42 Cal. 288; while if he first obtains settlement of his account on his own estimate of what is a proper charge, the attorney may refuse to accept it, and sue him for a larger sum—as in the case here.
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BRITT, C.
Action for the alleged value of professional services rendered by plaintiffs as attorneys at law (they being partners in practice) to the defendant James F. Breen, and one John R. Breen, who were executors of the last will of a certain decedent. It appears that the executors employed plaintiffs to conduct the ordinary legal proceedings for the administration of the testator’s estate and in the defense of certain actions brought against the executors in their official character; such employment terminated upon the death of said John R. Breen, which occurred August 31, 1894. On July 13, 1895, the surviving executor, James F. Breen, hied in court his final account of the administration; therein he prayed a credit of twelve hundred and fifty dollars for the payment of plaintiffs and alleged that sum to be the reasonable value of their services. Before the account was filed plaintiffs notified the executor that they were dissatisfied with this sum; and after the filing thereof they filed written exception to the same, stating that said sum “is not reasonable compensation for the .services of said attorneys, and they ask leave to submit evidence to the court of the value of said services, to the end that said attorneys have from said estate reasonable compensation.” Upon the hearing of said account the plaintiffs were, it seems, present in court, but declined to introduce any evidence touching the item aforesaid; and the account was settled and allowed as rendered. Afterward plaintiffs brought this action; the administrator of the estate of John R. Breen, the deceased executor, is joined as a defendant with James F. Breen, plaintiffs having first presented their claim to him for allowance as a debt of said John R. Breen and the claim having been rejected.
The matters above stated appear from the findings of the court or the admissions of the pleadings. The court further found that no agreement or understanding was ever had between plaintiffs and the executors as to the amount of compensation for the [659]*659services of plaintiffs, nor the source from which payment was to be made, nor that they should receive such sum as the court should fix on settlement of the accounts of the executors; also, that the reasonable value of said services was the sum of eighteen hundred dollars; but the court held that “By reason of the conclusiveness on plaintiffs of the allowance in the probate court”—meaning the superior court sitting in probate in the matter of said final account—they were entitled to judgment for the sum of twelve hundred and fifty dollars only, which was entered accordingly.
1. Since there was no agreement that the attorneys should look for their fees to the estate or an allowance therefrom by the court, it follows that the executors were liable personally to them for their reasonable compensation; it was so decided in Dwinelle v. Henriquez, 1 Cal. 387, and has been more or less distinctly asserted in several cases since. (Gurnee v. Maloney, 38 Cal. 85; 99 Am. Dec. 352; Estate of Page, 57 Cal. 241; Estate of Ogier, 101 Cal. 385; 40 Am. St. Rep. 61; Estate of Kassen, 119 Cal. 489.) The law of this state is not peculiar in this regard. "It is a well-recognized principle,” says Judge Woemer, “that for liabilities contracted by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors.....It follows that the estate is not liable to an attorney for his services at the instance of an executor or administrator, but that the latter is himself liable in a suit by the attorney.” (2 Woerner on Administration, sec. 356.) And to the same effect, among other cases, are Mygatt v. Wilcox, 45 N. Y. 306; 6 Am. Rep. 90; Bowman v. Tillman, 2 Rob. N. Y. 385; Parker v. Day, 155 N. Y. 383; Thomas v. Moore, 52 Ohio St. 200; Barker v. Kunkel, 10 Ill. App. 407.
2. Section 1635 of the Code of Civil Procedure, relating to the accounting of executors and administrators, provides that “any person interested in the estate” may contest the account on the hearing thereof; and section 1637 following provides that “The settlement of the account and the allowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate,” with a saving in favor of persons under legal disability. Defendants urge that plaintiffs were persons “interested in the estate” within the meaning of these sec[660]*660tions, and are in virtue of the same estopped to claim more than was allowed to the executor for their compensation on settlement of his final account. We cannot agree with defendants. The law being that the estate is not liable to the attorney, it must be also that the attorney is not interested in the estate. This court has often decided that the allowance from the estate for attorney’s fees under section 1616 of the Code of Civil Procedure must be made to the executor or administrator, and not to the attorney (Estate of Levinson, 108 Cal. 458, and cases cited); which construction of the statute is reasonable in view of the rule that the representative and not the estate is liable to the attorney, but that could scarcely be said if the attorney is really a person interested in the estate to the amount of his fees. It is hard to see how the court, under ordinary circumstances, could compel the representative to take more from the estate for payment of his attorneys than he has himself claimed for that purpose in his account. Unless the attorney has agreed to accept for his fees the allowance made by the court to indemnify the executor or administrator in that behalf, there seems as little reason for saying that he is concluded by the order making such allowance as that persons having claims against the representative founded on the latter’s tort or breach of contract, committed while acting for the estate, can be affected by the settlement of his accounts. In the absence of an enabling statute the court in probate cannot adjudicate between such persons and the executor or administrator. (Woerner on Administration, sec. 152, 356; see Eustace v. Jahns, 38 Cal. 3; Estate of Burdick, 112 Cal. 387; Sterrett v. Barker, 119 Cal. 492; Worrall v. Harford, 8 Ves. 4; Johnson v. Leman, 131 Ill. 609; 19 Am. St. Rep. 63.)
The circumstance that plaintiffs filed exceptions to the executor’s account is unimportant. If they were interested in the estate, the order of the court (made on due notice) concludes them, whether they contested the account or not; if they were not interested, they had no right to contest it, and the filing of exceptions could not give them an interest. The fact of such appearance may have been evidence bearing on the question whether they expected or agreed to look to the estate for their fees; a question settled, however, by the findings in the negative.
[661]*661We are not- insensible to the force of defendants’ argument ab inconvenienti; it is said that if the representative pays the attorney in advance of settlement he may find that the court will consider the charge too great and refuse him credit for the payment—as happened in Estate of Gasq, 42 Cal. 288; while if he first obtains settlement of his account on his own estimate of what is a proper charge, the attorney may refuse to accept it, and sue him for a larger sum—as in the case here. The supposed perils of the representative are more apparent than real; he will, we apprehend, commonly be able to procure competent counsel who will agree to render their services for such compensation as the court may allow to him for that purpose from the estate; it is seldom that the superior courts have been found niggardly in that particular. (See the remarks of this court in Estate of Byrne, 122 Cal. 260.) Again, the attorney is entitled in any event to only reasonable compensation; presumably, what is reasonable will appear to be the same before whatever competent tribunal the question arises; it will probably not often occur that the estimate of a jury in an action by the attorney against the representative will be higher than that of the court to which the account is rendered.
Defendants rely on Estate of Couts, 87 Cal. 480. In that case an order, made on settlement of an account, determining that certain claims for services rendered to the executrix were legal charges against the estate, was held conclusive on the executrix and those interested in the estate; if there is anything in the opinion there which would justify the inference that persons not so interested might be compelled to litigate their claims against the executrix upon hearing of her account it is dictum, merely.
3. It is claimed by respondents that the administrator of J. B. Breen is improperly joined as a defendant with James F. Breen. There were at common law valid formal reasons against such joinder, and they were allowed effect in two early cases in this state. (May v. Hanson, 6 Cal. 642; Humphreys v. Yale, 5 Cal. 173.) But section 379 of the Code of Civil Procedure provides that: “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” The language is certainly broad
[662]*662enough to allow the joinder of the administrator of a deceased debtor or promisor with survivors who were jointly liable with him to the plaintiff; and such is the later doctrine of this court, to which we adhere. (Lawrence v. Doolan, 68 Cal. 309; compare Bank of Stockton v. Howland, 42 Cal. 129; Fisher v. Hopkins, 4 Wyo. 379; 62 Am. St. Rep. 38; Bliss on Code Pleading, sec. 107; Pomeroy on Remedies, secs. 302-304.) The objection of misjoinder must be overruled.
Defendants were liable for the whole value of the services of plaintiffs as found by the court; but it appears from the record and from the admissions in the briefs of plaintiffs that they have received on account of their demand the sum of twelve hundred and fifty dollars, paid from the funds of the estate subsequently to the commencement of the action. The judgment should, therefore, be reversed, with directions to the court below to render judgment for plaintiffs for the sum of five hundred and fifty dollars, the excess of the value of their services as found by the court above the payment aforesaid, with interest from date of the original judgment, and for costs; judgment to be against James F. Breen personally, and that the administrator of J. R. Breen pay in due course of administration.
Gray, C., and Pringle, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed, with directions to the court below to render judgment for plaintiffs as in said opinion recommended.
Harrison, J., Garoutte, J., Van Dyke, J.
A petition for rehearing was denied March 31, 1899, Beatty, C. J., dissenting.