LATIMER, Justice.
This is a second appeal in this matter. Our former decision, in which we held the lower court erred in appointing an administrator of its own choosing in preference to one designated by the next of kin, is reported in 111 Utah 196, 176 P. 2d 876. The present administrator prosecutes this appeal from a judgment of the lower court approving and allowing an account of the former and erroneously appointed administrator.
There are three assignments of error which are advanced by appellant, and they challenge four approved items in the account. We shall treat the assignments collectively and the items of the account separately.
The sequence of events involved in this phase of the controversy are these: The original petition to appoint an administrator was heard in the lower court on the 30th day of August, 1946. At that time the court announced the rejection of the designated administrator and the appointment of Mr. Watkins, the respondent herein. Counsel for the original petitioners, the next of kin, announced in open court the probability of an appeal to this court from the order as entered. On September 4, 1946, Letters of Administration were issued to Mr. Watkins and on the same date the Clerk of the Court ordered publication of Notice to Creditors. On September 17, 1946, notice of appeal to this court was served on Mr. Watkins, and filed with the Clerk of the Court, and on the 28th day of September, 1946, a cost and supersedeas bond was filed with the Clerk of the Court. This court on the 4th day of February, 1947, remanded the cause, with instructions to recall the Letters of Administration issued to Mr. Watkins,
and to issue new letters to Mr. William F. Kidman, the present administrator and nominee of the next of kin.
The removed administrator filed an account of his administration on February 13, 1947, and the present administrator filed an objection to certain items included in the account. The account and objections came on for hearing before the trial court on February 25, 1947, and on the 8th day of March, 1947, the Court rendered a judgment and decree authorizing and directing the administrator to pay all of the costs and expenses of administration including those items now objected to. This appeal questions the authority of the trial court to approve and direct the payment of attorney's fees, administrator’s fees, administrator’s bond premium and costs of publishing notice to creditors.
Counsel for appellant rely principally upon our holding in the case of
In re Cloward’s Estate,
95 Utah 453, 82 P. 2d 336, 119 A. L. R. 123. It is not necessary at this time to either affirm, overrule, or re-examine our holding in that case, as it has no application to the facts of this case. In that case the petition for appointment of an administrator was initiated by a total stranger to the estate. Under those facts we held the appointment to be void and refused to permit the party initiating the proceedings to recover his costs and expenses. In. the case at bar, the proceedings were initiated by competent and preferred parties and the effect of our former decision in this case, was to hold the appointment of Mr. Watkins erroneous and not void.
The two cases most nearly in point are:
In re Owens’ Estate,
32 Utah 469, 91 P. 283, and
In re Pingree Estate,
82 Utah 437, 25 P. 2d 937, 90 A. L. R. 96. In those two actions this court held the lower courts had erred in failing to appoint the preferred parties, but that the appointments were not void. In both instances the costs and expenses of administration up to the time of recall of the letters were allowable as charged against the estate.
The appointment in this instance merely being erroneous, the lower court did not err in allowing the respondent the sum of $75 expended for costs of his bond.
This item was a necessary exenditure regardless of whether or not the respondent be considered a general administrator or a special administrator.
Two other items, namely, the administrator’s fee and the attorney’s fee present a more difficult problem, not as to their being allowable items but as to the amounts awarded being excessive. The court in determining the amount to be allowed, used a proportionate basis, and having concluded the duties were 50% completed, awarded the administrator 50% of the statutory administrator’s fee and made the same award to the attorneys. In the case of
In re Owens’ Estate,
supra, this court held that if the fee is determined on a proportionate basis, the court must await completion of the proceedings before a proper and adequate apportionment can be made. Accordingly, were we to approve the apportionate method as being proper in this case, we would reaffirm the principle announced in the
Owens
case, and reverse the present judgment with instruction to determine the division of fees at the time of settlement of the proceedings.
We have, however, concluded that apportionment on the percentage of the work done is not a proper method to use when the appointment is erroneously ordered over the protest of those who have a preferred right. In many instances, a person who is first entitled to letters of administration is perfectly willing to serve without pay or at a reduced figure. In this particular instance the preferred administrator was a party to the original petition for Letters of Administration and agreed to serve without compensation. Preferred parties entitled to letters of administration as a matter of right should not be required to pay a proportionate part of the statutory fees of administrator’s and attorney’s fees to a stranger, when they have neither lost their rights to preference nor participated in the erroneous appointment. Neither should the distributive shares of the estate be unnecessarily diminished by costs and expenses incurred by one who has no interest in the residue. To use the proportionate method for determin
ing fees in most instances pays the usurpers and the rightful occupant on the same basis and in some instances prefers the one who improperly occupies the office.
It is contended by respondent that he and his counsel acted in good faith. We agree that they were not parties to the original dispute, and only participated after the court designated Mr. Watkins to be the administrator. Nevertheless, they were charged with knowledge prior to their acceptance of the appointment that Watkins’ appointment was to be the subject of an appeal. Assuming the best of faith on their part, did not the heirs and the next of kin also act in good faith?
However, we are here only concerned with a proper apportionment of costs and expenses because the lower court erroneously denied preferred persons their right of designation or choice. Our problem is to determine how costs and expenses are to be apportioned when all parties have acted in good faith.
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LATIMER, Justice.
This is a second appeal in this matter. Our former decision, in which we held the lower court erred in appointing an administrator of its own choosing in preference to one designated by the next of kin, is reported in 111 Utah 196, 176 P. 2d 876. The present administrator prosecutes this appeal from a judgment of the lower court approving and allowing an account of the former and erroneously appointed administrator.
There are three assignments of error which are advanced by appellant, and they challenge four approved items in the account. We shall treat the assignments collectively and the items of the account separately.
The sequence of events involved in this phase of the controversy are these: The original petition to appoint an administrator was heard in the lower court on the 30th day of August, 1946. At that time the court announced the rejection of the designated administrator and the appointment of Mr. Watkins, the respondent herein. Counsel for the original petitioners, the next of kin, announced in open court the probability of an appeal to this court from the order as entered. On September 4, 1946, Letters of Administration were issued to Mr. Watkins and on the same date the Clerk of the Court ordered publication of Notice to Creditors. On September 17, 1946, notice of appeal to this court was served on Mr. Watkins, and filed with the Clerk of the Court, and on the 28th day of September, 1946, a cost and supersedeas bond was filed with the Clerk of the Court. This court on the 4th day of February, 1947, remanded the cause, with instructions to recall the Letters of Administration issued to Mr. Watkins,
and to issue new letters to Mr. William F. Kidman, the present administrator and nominee of the next of kin.
The removed administrator filed an account of his administration on February 13, 1947, and the present administrator filed an objection to certain items included in the account. The account and objections came on for hearing before the trial court on February 25, 1947, and on the 8th day of March, 1947, the Court rendered a judgment and decree authorizing and directing the administrator to pay all of the costs and expenses of administration including those items now objected to. This appeal questions the authority of the trial court to approve and direct the payment of attorney's fees, administrator’s fees, administrator’s bond premium and costs of publishing notice to creditors.
Counsel for appellant rely principally upon our holding in the case of
In re Cloward’s Estate,
95 Utah 453, 82 P. 2d 336, 119 A. L. R. 123. It is not necessary at this time to either affirm, overrule, or re-examine our holding in that case, as it has no application to the facts of this case. In that case the petition for appointment of an administrator was initiated by a total stranger to the estate. Under those facts we held the appointment to be void and refused to permit the party initiating the proceedings to recover his costs and expenses. In. the case at bar, the proceedings were initiated by competent and preferred parties and the effect of our former decision in this case, was to hold the appointment of Mr. Watkins erroneous and not void.
The two cases most nearly in point are:
In re Owens’ Estate,
32 Utah 469, 91 P. 283, and
In re Pingree Estate,
82 Utah 437, 25 P. 2d 937, 90 A. L. R. 96. In those two actions this court held the lower courts had erred in failing to appoint the preferred parties, but that the appointments were not void. In both instances the costs and expenses of administration up to the time of recall of the letters were allowable as charged against the estate.
The appointment in this instance merely being erroneous, the lower court did not err in allowing the respondent the sum of $75 expended for costs of his bond.
This item was a necessary exenditure regardless of whether or not the respondent be considered a general administrator or a special administrator.
Two other items, namely, the administrator’s fee and the attorney’s fee present a more difficult problem, not as to their being allowable items but as to the amounts awarded being excessive. The court in determining the amount to be allowed, used a proportionate basis, and having concluded the duties were 50% completed, awarded the administrator 50% of the statutory administrator’s fee and made the same award to the attorneys. In the case of
In re Owens’ Estate,
supra, this court held that if the fee is determined on a proportionate basis, the court must await completion of the proceedings before a proper and adequate apportionment can be made. Accordingly, were we to approve the apportionate method as being proper in this case, we would reaffirm the principle announced in the
Owens
case, and reverse the present judgment with instruction to determine the division of fees at the time of settlement of the proceedings.
We have, however, concluded that apportionment on the percentage of the work done is not a proper method to use when the appointment is erroneously ordered over the protest of those who have a preferred right. In many instances, a person who is first entitled to letters of administration is perfectly willing to serve without pay or at a reduced figure. In this particular instance the preferred administrator was a party to the original petition for Letters of Administration and agreed to serve without compensation. Preferred parties entitled to letters of administration as a matter of right should not be required to pay a proportionate part of the statutory fees of administrator’s and attorney’s fees to a stranger, when they have neither lost their rights to preference nor participated in the erroneous appointment. Neither should the distributive shares of the estate be unnecessarily diminished by costs and expenses incurred by one who has no interest in the residue. To use the proportionate method for determin
ing fees in most instances pays the usurpers and the rightful occupant on the same basis and in some instances prefers the one who improperly occupies the office.
It is contended by respondent that he and his counsel acted in good faith. We agree that they were not parties to the original dispute, and only participated after the court designated Mr. Watkins to be the administrator. Nevertheless, they were charged with knowledge prior to their acceptance of the appointment that Watkins’ appointment was to be the subject of an appeal. Assuming the best of faith on their part, did not the heirs and the next of kin also act in good faith?
However, we are here only concerned with a proper apportionment of costs and expenses because the lower court erroneously denied preferred persons their right of designation or choice. Our problem is to determine how costs and expenses are to be apportioned when all parties have acted in good faith.
The respondent having accepted an appointment with prior notice of a probable appeal and immediate steps having been taken by contestants to perfect the same, we have concluded that his appointment was in the nature of a special administrator, and that the amounts that should be awarded for his fees as administrator and his allowance for attorney’s fees are such sums as would reasonably compensate a special administrator and his counsel who have been appointed solely for the purpose of preserving and protecting the estate. We are not prepared to state, under all circumstances, what services might go into preserving an estate, but in this case the record establishes that very little attention was necessary to preserve and save the assets.
Accepting respondent’s evidence as to the duties he performed we have the following acts necessary to preserve the estate: The work necessary to obtain respondent’s appointment as administrator; the draining of the radiator and the storage of the car to protect it from the elements; shutting off the water in the house to keep it from freezing;
verifying the bank account; taking inventory of the contents of the safety deposit boxes; and a limited number of conferences with his attorney for consultation about the foregoing duties. As for the services performed by the attorneys, the record establishes that they performed the services necessary in preparing the letters and order for appointment of administrator and held several conferences with the administrator.
Where the record bears out the fact that other services were performed by both the administrator and his attorneys, such as opposing an appeal to this court in the first appeal, such services cannot be considered in determining the sums to be awarded, because the costs and expenses of a losing party incurred in litigating the right of appointment as an administrator are not taxable against the estate.
We pass only on the facts of this case, and hold that when a stranger is appointed as administrator of an estate, over the protest of others who are preferred by statute, if the Letters of Administration are recalled by this court because of having been erroneously issued, then the removed administrator and his attorneys are only entitled to such reasonable compensation as should be awarded for services performed by or for a special administrator, appointed as a conservator. In arriving at the value of the services performed by a special administrator and his attorney, the measure is not based upon a percentage of the work done, as applied to the statutory fee, for general administrators, but upon the more limited basis of the reasonable value of the services performed in the limited capacities.
If, as we assume, reasonable fees for Mr. Watkins and his attorneys are contingent upon the character and extent of their services in restricted capacities, the amount of time devoted to the matter, the responsibility assumed by each, the benefit to the estate and the amounts usually charged in that area for like services, then it is apparent that, based upon these factors, as they are applied to a special admin
istrator and his attorneys, the awards as made by the lower court are excessive. We are not disposed at this time to suggest what sums should be awarded. However, we do suggest the matter be re-examined by the trial court, evidence of the reasonable value of the services performed as a special administrator be taken, and lesser amounts more consistent with the work performed and less dependent on a proportionate part of the total fees be awarded.
Having determined the respondent was a special administrator, the amount expended for publication of notice to creditors was an unnecessary expenditure and, accordingly, this item should be deleted from the list of approved costs and expenses. In this connection, we have not overlooked the fact that a supersedeas bond is required to stay the execution of the order. However, this publication was an additional act performed by this administrator that would not have been required of a special administrator and under the facts of this case could not have been prevented by the contestants. Neither a notice of appeal nor a bond to stay further proceedings could have been filed in time to have prevented this as the erroneously appointed administrator obtained the order to publish notice to creditors at the same time letters of administration were issued to him. A notice of appeal would have been premature had it been served and filed prior to the time letters were issued, and when served after their issuance, it was too late to prevent the administrator from so publishing.
Reversed for further proceedings in accordance with this decision. Each party to bear his own costs.
McDONOUGH, C. J., and WADE, J., concur.