Williams v. Walker , 31 Ga. 195 ( 1860 )

By the Court.

Eumpkin, J.,

delivering the opinion.

This action was brought by the executor of - the late Judge Berrien, to recover a fee for professional services- rendered the estate of Allen M. Walker, deceased. Allen- M. Walker nominated two executors, Jesse E. Owen and Nathaniel E. Walker. At first, Owen only qualified, and it was Owen who employed Judge Berrien. Since the services were rendered, and as to the value of which there is no dispute, 0-wen has died and Nathaniel F. Walker has qualified. The action is brought against him. The Court nonsuited the case upon the ground, that Nathaniel F. Walker was not bound, either personally or representatively, for this fee.

While we are clear, of course, that there is no individual liability attaching to the defendant, we entertain no doubt that the estate he. represents is responsible. Were not the ■services rendered the estate ? Why should the estate not pay for them? How is it, that in. the distribution of intestates’ ■estates fees of counsel are always ranked amongst the debts of the first dignity, and that this fee is not collectable ?

Suppose Mr. Owen, in his lifetime, had brought ejectment or trover to recover the land or negroes of 'the deceased, must not the estate be responsible for the fees of the attorney? Undoubtedly; and so for any other professional service. Or, suppose the land and negroes were directed by the will to be kept together, and worked on the plantation, would not the estate be liable for the owner’s wages? (Williams on Ex’s. 1580. 2 Penn. Rep., Sterrill’s case, 426. Boyston vs. Boyston, 29 Geo. Rep. 101.)

It is conceded that the fee could be recovered by a proceeding in equity — why not at common law? Why perpetrate the folly of compelling the estate of Judge Berrien to proceed first against the estate, and thus drive the estate of Owen to go against the estate of Allen M. Walker for reimbursement? .The law justly abhors such circuity.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed upon the ■ground, that the Court erred in awarding a nonsuit. It is further ordered and adjudged, that the nonsuit be set aside and the case reinstated.