Mr. Justice Morris
delivered the opinion of the Court:
1. At the very threshold of this case a technical difficulty is presented to our consideration of these appeals. It must be said that it has not been raised by either party, and that it is more technical than substantial. But, inasmuch as our decision in the premises will undoubtedly be drawn into a precedent hereafter, we may not wholly ignore the point.
We have repeatedly held that an order refusing to vacate a final order or decree is not itself the subject of appeal; and hence it might be inferred that the order of the court below in this case, whereby it refused to vacate the order for the allowance of compensation to the appellees, is not such as can be considered by us. And, inasmuch as an appeal taken on June 17, 1901, from an order rendered on January 10, 1899, far exceeds the limitation of time allowed by the rules of this court for the taking of appeals, it might likewise be inferred that this order also has passed beyond the possibility of our supervisory authority. But as the order of January 10, 1899, was confessedly passed without notice to the appellants, whose interests are vitally affected by it, and in fact without notice of any kind to any one, and without opportunity to any one to show cause against it, we cannot regard it as a final order in any proper sense of the term, even if we should not, for want of such notice, regard it as utterly void. At best, it was no more than an order nisi, with reference to which the parties in interest had the right to have their day in court some time before the final settlement of the ac[275]*275counts and the distribution of the estate. In view, therefore, of the peculiar circumstances of the case and of the informality of proceedings in the Orphans’ Court, we must regard the order which was made on May 31,1901, and whereby the court refused to vacate the order of January 10, 1899, as being the final order in the case from which appeal may properly be taken to this court.
In this same connection it may be noticed that objection was taken in the court below by the appellees that the appellants came too late with their petition. We find no force in this objection. The law on the subject was fully stated by the Court of Appeals of the State of Maryland in the case of Bantz v. Bantz, 52 Md. 686, in which it was said:
“As long as the estate is open, that is, not finally closed and settled, the accounts of the executor in the Orphans’ Court are subject to revision and correction in respect of any matter discovered to be erroneous. * * * The simple passage of a claim by the Orphans’ Court or the passage and approval of an account pertaining to it does not establish the correctness of either.
“ Parties interested in the distribution of a deceased’s estate may, in a proper way and within a reasonable time, object to the propriety of a claim preferred by the executor of the deceased for services rendered her, although it has been passed upon and allowed ex parte by the Orphans’ Court and included by the executor in his account.”
And in the case of Wilson v. McCarty, 55 Md. 277, the same court said:
“ The jurisdiction of the Orphans’ Court to correct an account within a reasonable time has been frequently upheld in this court. What is reasonable time depends upon the peculiar circumstances of each case, and the character of the corrections to be made.”
And we ourselves had occasion to hold recently that the matter of the allowance or disallowance of costs and expenses was within the control of the court during the whole period of administration. Tuohy v. Hanlon, 18 App. D. C. 225.
When, therefore, within the period of administration, the appellant questioned the correctness of the item of allowance [276]*276to counsel for services as one of the items of the account to be rendered, they were within their right, and the decision then rendered was one from which appeal to this court could properly be prosecuted.
2. The substantial question of law in this case is whether the court below had any warrant of law to allow the compensation to attorneys which it assumed to allow. The amount of the allowance seems to be excessive in comparison to the estate to be administered; it may be moderate enough in view of the magnitude of the services rendered. With this we need not concern ourselves in the present inquiry. Nor we have held that, when such compensation is proper to be allowed, the amount of it is usually for the discretion of the Orphans’ Court, and that discretion is not to be reviewed upon appeal, except for the abuse of it, as in other cases remitted to judicial discretion. Tuohy v. Hanlon, 18 App. D. C. 225, and cases there cited. The question for us to consider here is not one of abuse of discretion resulting in an excessive allowance, but whether there was authority of law to make any allowance whatever. And upon this question we are constrained, by what we regard as the very plain provisions of the law, to come to a conclusion directly at variance with that reached by the court below.
It is well settled law, too well settled and too generally recognized to need citation of authorities in support of the proposition, that the estate of a deceased person, immediately upon his death, whether it be realty going to an heir or devisee, or personalty going into the hands of an executor or administrator preliminary to distribution among legatees or next of kin, is charged with a lien for the payment of his debts; and this lien is paramount to all rights of heirs, next of kin, or distributees of the estate, subject only to the proviso that the personal property is the primary fund for the payment of debts, and that recourse is not to be had to the realty until the personal estate has been exhausted, and subject also to the further proviso that the costs of administration of the personalty, therein including the ordinary costs of court and reasonable commissions to the [277]*277executor or administrator, are a first charge upon the personal estate and-first payable out of its assets; [but] the claims of creditors, to the full extent to which they are just and proper, take precedence of the claims of distributees, even though they should exhaust the estate and leave nothing to these latter. The order of settlement of the personal eátate of a deceased person, therefore, whether he has left a will or has died intestate, is: (1) The payment of the cost of administration; (2) The payment of debts; (3) The distribution of the residue between legatees or next of kin.
Whether a deceased person has left a will or has died intestate, is of no consequence whatever in law to the creditors. Whether their paymaster is to be an executor appointed by the testator, or an administrator appointed by the court, is a matter of utter indifference to them. They are only interested to receive from the estate the amount of their just claims; and by whom these claims are paid to them is no concern of theirs. They are not interested in the contests over wills. The question of the validity or invalidity of wills is one which does not concern them and in which they have no right whatever to intervene.
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Mr. Justice Morris
delivered the opinion of the Court:
1. At the very threshold of this case a technical difficulty is presented to our consideration of these appeals. It must be said that it has not been raised by either party, and that it is more technical than substantial. But, inasmuch as our decision in the premises will undoubtedly be drawn into a precedent hereafter, we may not wholly ignore the point.
We have repeatedly held that an order refusing to vacate a final order or decree is not itself the subject of appeal; and hence it might be inferred that the order of the court below in this case, whereby it refused to vacate the order for the allowance of compensation to the appellees, is not such as can be considered by us. And, inasmuch as an appeal taken on June 17, 1901, from an order rendered on January 10, 1899, far exceeds the limitation of time allowed by the rules of this court for the taking of appeals, it might likewise be inferred that this order also has passed beyond the possibility of our supervisory authority. But as the order of January 10, 1899, was confessedly passed without notice to the appellants, whose interests are vitally affected by it, and in fact without notice of any kind to any one, and without opportunity to any one to show cause against it, we cannot regard it as a final order in any proper sense of the term, even if we should not, for want of such notice, regard it as utterly void. At best, it was no more than an order nisi, with reference to which the parties in interest had the right to have their day in court some time before the final settlement of the ac[275]*275counts and the distribution of the estate. In view, therefore, of the peculiar circumstances of the case and of the informality of proceedings in the Orphans’ Court, we must regard the order which was made on May 31,1901, and whereby the court refused to vacate the order of January 10, 1899, as being the final order in the case from which appeal may properly be taken to this court.
In this same connection it may be noticed that objection was taken in the court below by the appellees that the appellants came too late with their petition. We find no force in this objection. The law on the subject was fully stated by the Court of Appeals of the State of Maryland in the case of Bantz v. Bantz, 52 Md. 686, in which it was said:
“As long as the estate is open, that is, not finally closed and settled, the accounts of the executor in the Orphans’ Court are subject to revision and correction in respect of any matter discovered to be erroneous. * * * The simple passage of a claim by the Orphans’ Court or the passage and approval of an account pertaining to it does not establish the correctness of either.
“ Parties interested in the distribution of a deceased’s estate may, in a proper way and within a reasonable time, object to the propriety of a claim preferred by the executor of the deceased for services rendered her, although it has been passed upon and allowed ex parte by the Orphans’ Court and included by the executor in his account.”
And in the case of Wilson v. McCarty, 55 Md. 277, the same court said:
“ The jurisdiction of the Orphans’ Court to correct an account within a reasonable time has been frequently upheld in this court. What is reasonable time depends upon the peculiar circumstances of each case, and the character of the corrections to be made.”
And we ourselves had occasion to hold recently that the matter of the allowance or disallowance of costs and expenses was within the control of the court during the whole period of administration. Tuohy v. Hanlon, 18 App. D. C. 225.
When, therefore, within the period of administration, the appellant questioned the correctness of the item of allowance [276]*276to counsel for services as one of the items of the account to be rendered, they were within their right, and the decision then rendered was one from which appeal to this court could properly be prosecuted.
2. The substantial question of law in this case is whether the court below had any warrant of law to allow the compensation to attorneys which it assumed to allow. The amount of the allowance seems to be excessive in comparison to the estate to be administered; it may be moderate enough in view of the magnitude of the services rendered. With this we need not concern ourselves in the present inquiry. Nor we have held that, when such compensation is proper to be allowed, the amount of it is usually for the discretion of the Orphans’ Court, and that discretion is not to be reviewed upon appeal, except for the abuse of it, as in other cases remitted to judicial discretion. Tuohy v. Hanlon, 18 App. D. C. 225, and cases there cited. The question for us to consider here is not one of abuse of discretion resulting in an excessive allowance, but whether there was authority of law to make any allowance whatever. And upon this question we are constrained, by what we regard as the very plain provisions of the law, to come to a conclusion directly at variance with that reached by the court below.
It is well settled law, too well settled and too generally recognized to need citation of authorities in support of the proposition, that the estate of a deceased person, immediately upon his death, whether it be realty going to an heir or devisee, or personalty going into the hands of an executor or administrator preliminary to distribution among legatees or next of kin, is charged with a lien for the payment of his debts; and this lien is paramount to all rights of heirs, next of kin, or distributees of the estate, subject only to the proviso that the personal property is the primary fund for the payment of debts, and that recourse is not to be had to the realty until the personal estate has been exhausted, and subject also to the further proviso that the costs of administration of the personalty, therein including the ordinary costs of court and reasonable commissions to the [277]*277executor or administrator, are a first charge upon the personal estate and-first payable out of its assets; [but] the claims of creditors, to the full extent to which they are just and proper, take precedence of the claims of distributees, even though they should exhaust the estate and leave nothing to these latter. The order of settlement of the personal eátate of a deceased person, therefore, whether he has left a will or has died intestate, is: (1) The payment of the cost of administration; (2) The payment of debts; (3) The distribution of the residue between legatees or next of kin.
Whether a deceased person has left a will or has died intestate, is of no consequence whatever in law to the creditors. Whether their paymaster is to be an executor appointed by the testator, or an administrator appointed by the court, is a matter of utter indifference to them. They are only interested to receive from the estate the amount of their just claims; and by whom these claims are paid to them is no concern of theirs. They are not interested in the contests over wills. The question of the validity or invalidity of wills is one which does not concern them and in which they have no right whatever to intervene. It may, perhaps, be well characterized as a disgrace to the condition of our testamentary law, that creditors are oftentimes postponed for years in the satisfaction of their just demands, while legatees and next of kin are engaged in virulent legal strife to determine which of them shall enjoy the residue of the estate after the payment of the debts; for this is all that such strife can mean in law, and this is precisely what has happened in the present case. It would scarcely be unfair to characterize as the addition of insult to injury, that, in addition to such postponement of the satisfaction of their claims, they should also be called upon to pay the costs of such litigation. This also is what has happened in the present case, and what may happen in every case of an insolvent estate. Now, assuredly there can be no warrant of law, or of reason, or of common sense, to require one man to pay the costs of the litigation of two other men, with which he has no connection whatever, other than the un[278]*278fortunate connection, that, in the fund for which they are contending, he has a claim paramount to each and both of them, but which he cannot have satisfied until their litigation has been settled.
The claim in the present case is one' for compensation to the attorneys for the establishment of the will of Annie E. Northcutt. The contest was one between the next of kin on one side and the legatees under the will, represented by the executors, on the other side. With this contest the creditors have nothing to do. In law, the result of the contest could neither increase nor diminish their rights, and could neither increase nor diminish the fund out of which their claims were to be paid. Why, therefore, should they be charged with the cost of that litigation?
Unless, therefore, we can bring this allowance of compensation under the head of costs of administration of the estate, it is very clear that it cannot be made a charge against the fund, so far as that fund is necessary for the payment of creditors. But to call it costs of administration does not make it such; it is liable to the same objection by whatever name we call it.
It has been decided that an executor successfully defending a will may be allowed for counsel fees contracted to be paid for such defense. We have even gone farther, and have held in the case of Tuohy v. Hanlon, 18 App. D. C. 225, that a person named as executor in a paper writing purporting to be a will, who has signified his acceptance of the trust by filing a petition for its probate and who has defended it in good faith, although unsuccessfully, may be allowed for counsel fees expended in such defense. But all these cases were cases between the legatees on the one side and the next of kin on the other; and as between them the charge was held to be a proper item in the cost of administration. We fail to find any case in which the fund necessary for the payment of creditors was charged with such costs. Where the estate is entirely solvent, such a charge necessarily falls on the residuary fund payable to legatees or next of kin, by whatever name it is called; but [279]*279where the estate is insolvent, as in the case now before us, the charge, if allowed, would have to be borne by the creditors and paid out of the fund which would otherwise have gone to them, notwithstanding that they had been neither concerned nor consulted in the litigation. To impose such a burden on the creditors is against the fundamental principles of right and justice, and there is no warrant for it in the law.
Undoubtedly there are cases in which, even as against creditors, compensation may be allowed for counsel fees; as where it has been necessary to defend the estate against attack which would have materially diminished or destroyed it, or where it has been necessary to institute legal proceedings to recover assets for the estate. But in all such cases the creditors are equally concerned with those entitled to the residuum, perhaps even more concerned; and it is plain that in such cases compensation may be allowed. But no such case is presented here.
It may be that, in the case now before us, the order for the allowance of compensation to counsel may be permitted to stand as an adjudication of right so far as the legatees or distributees under the will are concerned, and with reference to the possibility of future assets to come into the hands of the administrators. But evidently the present effect of the order is to cut out the creditors in whole or in part; and this, we think, cannot lawfully be done.
The orders appealed from must therefore be reversed, with costs; and the cause will be remanded to the Supreme Court of the District of Columbia, with directions to vacate said orders, so far as the creditors of the estate of Annie D. Northcutt are concerned, and for such further proceedings therein, according to law, as mcuy be right and just. And it is so ordered.