Matter of the Estate of RUDOLPHUS KENT, Deceased, 1 Cal. Unrep. 28

MURRAY, C. J. — The charges of the administrator against the estate do not appear to have been proved by competent evidence, and therefore were properly rejected. As to the charge for legal services in defeating the claim of the heir to the fund in the hands of the administrator, the court finds “that no such services were in fact ever rendered, and if rendered, the charge is exorbitant and unjust.” There is no evidence of the fact in the record other than the receipt of the attorney for so much money and the affidavit of the administrator.

It does not appear that these charges were reasonable, and in the absence of testimony upon this fact, we do not feel disposed to disturb the allowance of two hundred and fifty dollars made by the court. It may be admitted that an administrator is the trustee for the heirs and creditors of an estate, and as such it is his duty to protect the •funds in his hands against simulated claims.

And while he would be entitled in a proper case to his disbursements and expenses in this behalf, still it would be necessary, I apprehend, on his final settlement, to show that they were not only necessary, but reasonable; otherwise an entire estate might be consumed by enormous fees of courts and lawyers in fruitless litigation.

Whatever may be the strict legal effect of the stipulation “not to contest the claim of the heir,” it is beyond all doubt that for the purposes of this appeal the appellant cannot object to the character of the evidence, having stood by in the court below and permitted it to be introduced without exception on his part. Judgment affirmed. -I concur: Terry, J.