meritorious defense, the mere fact that counsel | judge ordered that all claims against the advised him that he had a defense is not suffi- estate be filed within six months of Februcient. He must go further, and show facts and circumstances sufficient to show that he acted ary 22, 1901, and that all claims not filed reasonably. within that time should be barred. Notice was given of this order by four weeks' publication in a weekly newspaper. February 19, 1901, the sisters of the deceased petitioned for the appointment of a Mr. Butler [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 460; Dec. Dig. § 111.*] 3. EXECUTORS AND ADMINISTRATORS (8 111*)ATTORNEY'S FEES-RIGHT TO RECOVER SAME. And in such a case, where such facts and circumstances are not shown, the administrator is not entitled to credit for his attorney's fees or other expenses in making such defense. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 460; Dec. Dig. § 111.*] as administrator. March 20, 1901, the court overruled objections to the appointment of the widow and appointed her jointly with Butler to represent the estate. Butler did not qualify. The widow qualified April 17, 1901. On the last 4. EXECUTORS AND ADMINISTRATORS (§ 111*)-named date the widow filed her inventory ATTORNEY'S FEES. Where the heirs and distributees of an estate in process of settlement in the state courts without any just cause therefor bring suit against the administrator of said estate in the federal court, the administrator is justified in defending such suit, and is entitled to credit on his account as such administrator for his reasonable attorney's fees and expenses in making such defense. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 460; Dec. Dig. § 111.*] Appeal from District Court, Saline County; Hurd, Judge. Action by Clark Bullion and others against Curtis W. Ribble, administrator. From the judgment, defendant appeals, and plaintiffs file a cross-appeal. Judgment affirmed in part, and remanded with directions. L. W. Colby, S. R. Rush, and Hall, Woods & Pound, for appellant. W. G. Hastings and Robt. Ryan, for appellees. FAWCETT, J. This is an appeal from the decree of the district court of Saline county on an appeal from the county court of that county in the matter of the final settlement of the accounts of Curtis W. Ribble, as administrator of the estate of James M. Bullion, deceased. The decree being unsatisfactory to both sides, the administrator appeals, and the heirs at law of James M. Bullion, deceased, prosecute a cross-appeal. The contentions of the respective parties are set forth in their briefs, and the record fairly supports the statements made by counsel. Briefly stated the facts are: That James M. Bullion died intestate in Saline County, Neb., January 9, 1901, leaving a widow, two sisters and a half-brother, but no issue, him surviving. He owned 80 acres of land in fee simple and held school contracts for 240 acres more. He also owned considerable personal property. January 21, 1901, his widow applied for appointment as administratrix of his estate. January 23, 1901, she was appointed special administratrix thereof. February 18, 1901, a sister and an aunt of the deceased, who were also his creditors, objected to the widow's appointment as administratrix. February 19, 1901, the county and report as special administratrix. The account was, approved, and she was discharg ed. Her attorney, Mr. Colby, was allowed $100 attorney's fees in the matter of the special administration, and she reported $620.60 of other expense, leaving cash in her hands, proceeds of the sale of personal property, $3,251.05. April 18, 1901, without notice to any one, on the widow's application, she was allowed $50 per month for her support pending the settlement of the estate. August 24, 1901, an order was made barring all claims against the estate not then on file in the county court, and hearing on those filed was continued till August 29, 1901. Upon the last-named date the court allowed against the estate claims aggregating $6,881.88, not including interest, but the interest then accrued averaged less than six months' time on the claims. Of the claims thus audited $2,553 bore 10 per cent. annual interest, $800 bore 8 per cent., and $3,525.88 bore 7 per cent. Three thousand four hundred and ninety dollars and sixty-one cents was a preferred claim for money in Bullion's hands as guardian for a ward residing in New York. September 26, 1901, the administratrix filed a report showing the expenditure by her of $1,045.30, including 15 months' support, $750, and reported a balance of $2,579.04 in her hands. September 25, 1901, Mesdames Furmin and Ames, sisters of the deceased, and a Mrs. Hopkinson, an aunt, petitioned for leave to file claims against the estate, based on promissory notes signed by Mr. Bullion, aggregating about $2,500. The record in this case does not state the fact, but in the opinion of Commissioner Glanville in Ribble v. Furmin, 71 Neb. 108, 98 N. W. 420, the statement is made that intermediate the filing of objections to the appointment of Mrs. Bullion as administratrix of the estate of her deceased husband and the time claims against the estate were directed by the county judge to be filed Judge Hastings, the attorney for the claimants, was appointed Supreme Court commissioner, and neglected to report that fact to his clients. The notes it seems were in Nebraska during this time. December 29, 1901, Mrs. Bullion died, and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes December 30, 1901, Curtis W. Ribble, a De | against Curtis Ribble as administrator of the Witt banker, was appointed administrator estate of James W. Bullion, deceased, wherede bonis non of the James W. Bullion estate, in many allegations of alleged fraud and misand duly qualified. Hearing on the applica- doings on the part of the said administrator tion of Furmin et al. was continued along in the administration of the estate are set from time to time till February 17, 1902, on forth in the florid language so dear to the which date the petitions were dismissed and old-time equity draughtsman. Among other supersedeas bond in the sum of $50 fixed for things, the pleader charges that no claims an appeal in each case. A joint bond of $150 have ever been allowed against the estate, was finally accepted, and the claimants ap- and the money paid by the administrator was pealed to the district court, where judg-without authority, etc. The prayer is for an ment was rendered in favor of the claimants accounting and a judgment for the amount to the extent of reversing the order of the due the respective plaintiffs. The federal county court and remanding the cases. Rib-judge overruled a demurrer to the petition ble appealed to this court, and on February and to the jurisdiction of his court, and there4, 1904, the district court was upheld, except after an answer and a reply were duly filed. that its order was modified so that the en- It is stated by counsel that the cause now tire controversy should be settled in the dis- awaits the final order of the state courts in trict court. the premises. It may be proper to state that after this court sustained the district court, as above stated, the claimants were met in the district court by all manner of motions which delayed a hearing. Mr. Colby, of counsel for Mr. Ribble, testified that he and his co-counsel, Mr. Sands, "did all kinds of ingenious things" in the cases, which deferred a final hearing. Upon the happening of the death of Mrs. Bullion, two of these claimants and their half-brother, Clark Bullion, were February 5, 1902, Mr. Ribble filed, in the name of Mrs. Bullion, a final report of her acts as administratrix, showing that she had paid $2,000 on the preferred claim, which, added to other expenditures made and credits claimed by her, left in her hands a balance of $239.90. It is possible that $700 rent money is not properly accounted for, but there is not sufficient evidence to warrant us in disturbing the judgment of the district court upon that point. In the meantime the only persons interested in the residue of Ribble had sold the school land contracts and the 80 acres of deeded land for the sum of $9,100. the estate, so they, with Mrs. Hopkinson, agreed to settle their claims out of court. Thereupon their attorney dismissed the claims to prevent further cost and delay, and then commenced the action in the federal court, above referred to. August 4, 1902, the court on the ex parte applications of Ribble, administrator, made two orders, one that $150 should be paid Messrs. Colby and Sands for service in re- November 12, 1904, the county judge made sisting the claims of Furmin et al., and the an order vacating the order theretofore made other that they should be paid $200 for serv- by him commanding the administrator to pay ices rendered in selling the land. Previous-out the money in his hands. On the 13th ly Mr. Colby had been allowed $50 in addition to the $100 allowed for services as attorney for the special administratrix. of November, 1905, the last above order was annulled and a further order made to pay Mr. Rush $500 attorney's fees and all necessary costs in defending the suit in the United States court. September 1, 1902, on ex parte application of Ribble, administrator, he was given authority to pay Colby and Sands the further The administrator has paid out the entire sum of $300 for legal services rendered in re-assets of the estate to the various claimants sisting the claims of Furmin et al. October 14, 1904, Furmin, Ames, and Bullion, sole heirs, asked for an order settling the administrator's accounts and for a distribution of the residue of the estate. December 10, 1904, this petition was dismissed. November 9, 1904, Ribble petitioned the county court for an order directing him to pay all unpaid claims, and November 10th the order was made. November 10, 1904, on Ribble's ex parte application, the county fourt directed him to pay Colby and Sands the further sum of $1,050 for legal services rendered in resisting the claims of Furmin et al. November 30, 1904, Ribble filed a report showing a balance of $4,364.38 in his hands. December 2, 1904, Furmin, Ames, and Clark Bullion, sole heirs of the deceased, filed a petition in equity in the Circuit Court of the other than the heirs in liquidation of claims allowed and the interest which accrued thereon for about four years. The district court found that the administrator should not have appealed to the Supreme Court from the order of the district court September 30, 1902, directing the county court to hear the claims of Furmin et al.; and all costs incurred in connection with that appeal, including attorney's fees and the administrator's personal expense, are deducted from the items of credit claimed by Mr. Ribble. An item of $175 is also deducted from said amount. The court further found that immediately after September 30, 1902, Ribble should have paid all claims against the estate, and that he should have settled the estate not later than November 30, 1902; that the administrator retained in his hands for his personal benefit $6,000 and should be charged 7 per cent. in istrator should be charged with the statutory rate of interest for all of the time the funds are so held and appropriated. $180 interest accounted for by him. The court also deducts $770 claimed by Ribble for attorney's fees and expenses in federal court. Owing to an error in addition, this item is The attorney's fees and expenses in the fed$100 too large. The correct amount is $670. eral court should have been allowed. There The court further found that the administra- was no excuse for that action. The district tor should account for $5.053.15 as of date court had never shown any disinclination August 1, 1908, less whatever money might be to award appellees their full rights, and renecessary to pay unpaid interest on claims gardless of the question of the jurisdiction against the estate. The appellees have filed of the federal court, which to our minds is a cross-appeal wherein they insist the admin- none too clear, appellees should in all fairistrator should be held for failure to collect ness have avoided the expense of resorting to from Mrs. Bullion's bond an alleged balance that court, and have submitted any errors or in her hands of the money of the estate, and commission or omission of the county court not accounted for by her. Especially is ex- to the district court. To the extent that the ception taken to the report made by Ribble plaintiffs therein claimed to be creditors of for the administratrix. Some of the chal- the estate, such claims were then barred by lenged items relate to expense incurred in the statute of limitations, and they could the widow's last illness, and for her funeral only be heard as heirs to demand their disexpenses. We think it was within the distributive share of the estate. The amount cretion of the county court to consider those due them could only be determined, and was items and the excess of the widow's allow ance in the light of support for the widow, and that these collateral heirs have no standing to question such credits. The objection to rent for homestead should also be overruled. finally determined, in their favor by the state courts. Some of the allegations of the bill are untrue. For instance, there is no proof to sustain the allegation that no claims had ever been allowed against the Bullion estate. On the contrary, the proof shows that over $6,000 in claims had been thus allowed. While there is some ground for dispute as to some of the smaller amounts allowed, and also as to some of those disallowed, we feel that the evidence before us will not justify interference by this court as to any of such items. We think the court was right in refusing to give credit for attorney's fees and expenses incurred in the Supreme Court in resisting the claims of Ames, Furmin, and Hopkinson. At the time Ribble, on the advice of counsel, resisted those claims, there was an abundance of money in his hands to pay all claims, with interest, including the contested claims. Two of those claims were held by heirs of the deceased. None of the heirs requested the administrator to interpose objections to the payment of the notes, nor did any meritorious defense thereto exist. The authorities amply demonstrate that an administrator cannot shield himself from responsibility by stating that he followed the advice of his counsel. Clement's Appeal, 49 Conn. 519, 530; In re Huntley, 13 Misc. Rep. 375, 35 N. Y. Supp. 113: Mackin v. Hobbs, 126 Wis. 216, 105 N. RITCHIE v. ILLINOIS CENT. R. CO. et al. W. 395. The judgment of the district court is therefore affirmed except as to the item of $670 attorney's fees and expenses in the federal court, and the case is remanded to the district court with directions to modify its judgment accordingly. The costs in this court to be taxed against appellees. Modified and affirmed. (No. 16,145.) (Supreme Court of Nebraska. Oct. 22, 1910.) (Syllabus by the Court.) This brings us to the question of interest. It is a difficult one to solve. Mr. Ribble testified positively that he did not profit directly or indirectly from the possession all those 1. RAILROADS (§ 33*)—Foreign CorPORATIONS years of something like $6,000 of the funds of the estate. However, with the exception of one year during which he received 3 per cent. interest on $6,000, he had the money deposited principally to the credit of himself individually and in his own bank. It is immaterial whether he unlawfully converted the money. It is sufficient that he mingled it with his private funds, and made it subject to his personal check, instead of using it as administrator, for the benefit of the estate, and this, too, in the face of the fact that many of the claims allowed against the estate were drawing 10 per cent. interest per annum. In such a case we think an admin The -SERVICE OF PROCESS-"MANAGING AGENT." The Illinois Central Railroad Company was extended into this state from Ft. Dodge, Iowa, having its terminus in the city of Omaha, where it maintained its station and agency. Minneapolis & St. Louis Railroad Company had a line of railroad running northward from Ft. Dodge, Iowa, to Minneapolis and St. Paul, ed this state, nor is it shown by the evidence Minn.; but no part of its line of railroad enterthat it had any place of business or agency within the city of Omaha, or elsewhere in this agent, sold plaintiff a coupon ticket in the usual state. The Illinois Central Company, by its form, which authorized plaintiff to travel over its line of road from Omaha to Ft. Dodge and thence over the line of the Minneapolis & St. and return, as a passenger, and while passing Louis road from the latter city to Minneapolis, over that line of road plaintiff received the in jury complained of. This suit was brought in the district court against both companies, and service of summons was made upon the Illinois Central Company in the usual manner for service of summons on railroad companies, and upon the Illinois Central Company and its agent as the managing agents of the Minneapolis & St. Louis Company. Held, that the mere sale of the coupon ticket, such as is sold over connecting lines generally, did not constitute the Illinois Central Company or its agent the managing agents of the Minneapolis & St. Louis Company upon whom service of summons might be made. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 871; Dec. Dig. § 33;* Corporations, Cent. Dig. §§ 2610-2615. For other definitions, see Words and Phrases, vol. 5, pp. 4320-4323.] (Additional Syllabus by Editorial Staff.) 2. CORPORATIONS (§ 668*) - PROCESS-SERVICE ON MANAGING AGENT.' A "managing agent" of a foreign corporation for purpose of service of process must be some person vested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney who acts in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of his duties and the manner of executing it (quoting Words and Phrases, vol. 5, p. 4320). [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2610-2615; Dec. Dig. § GGS.*] Appeal from District Court, Douglas County; Troup, Judge. Action by Anna L. Ritchie against the Illinois Central Railroad Company, impleaded with another. Judgment for defendants, and plaintiff appeals. Affirmed. McCoy & Olmstead, for appellant. John I. Dills and Wm. Baird & Sons, for appellees. REESE, C. J. This action was instituted in the district court against the Illinois Central Railroad Company and the Minneapolis & St. Louis Railroad Company to recover for alleged personal injuries received by plaintiff while a passenger over the defendants' lines of railroad. The material facts were that plaintiff purchased a round trip ticket from the agent of the Illinois Central Railroad Company, at its ticket office in Omaha, for passage from Omaha to Minneapolis, Minn., and return. The ticket purchased was the usual coupon ticket, Omaha "to Minneapolis or St. Paul, Minn., and return; via route designated in coupons attached." The record does not contain the ticket purchased, nor a ticket or copy of one sold at Omaha for the trip designated, but does contain a copy of what is said to be a similar ticket with a coupon over another road, issued for the same occasion, to wit, the G. A. R. encampment at the city of Minneapolis. The line of the Illinois Central Railroad extended from Omaha to Ft. Dodge, Iowa, and from that point to Minneapolis the travel was over the line of the Minneapolis & St. Louis Railroad, and over which the coupon provided passage. The Illinois Central train which left Omaha proceeded to Ft. Dodge and was there placed upon the east and west line and proceeded to Chicago with the exception of one Pullman car, which was detached and placed in the train of the Minneapolis & St. Louis Railroad and proceeded to Minneapolis. As plaintiff was returning home on the line of the latter road, between Minneapolis and Ft. Dodge, she received the injury com plained of. The Illinois Central enters this state at Omaha and has its ticket office and agency in that city. The Minneapolis & St. Louis road does not enter this state anywhere and has no ticket office or agency at Omaha, unless the ticket office and agency of the Illinois Central Company in that city, and by which the ticket was sold to plaintiff, can be said to be its ticket office and agency. The suit having been commenced against both, the summons was, presumably, served upon the Illinois Central Railroad Company in the manner provided by the statute, and service was sought to be made upon the Minneapolis & St. Louis Railroad Company by delivering a copy thereof to the agent of the Illinois Central, and also upon the Illinois Central, the company which sold the ticket over both lines, as the managing agents of the Minneapolis & St. Louis Railroad Company. A special appearance was made by the Minneapolis & St. Louis Railroad Company, and objection was made to the service and jurisdiction of the court over it. Upon a hearing of the objections to the service and jurisdiction over the Minneapolis & St. Louis Railroad Company, the district court found that no legal service had been made upon said company, and the exceptions to the jurisdiction were sustained. From that decision plaintiff appeals. The sections of the statute under which it is claimed jurisdiction was obtained are 59, 60, 73, 75, 912, and 914 of the Civil Code, and section 4, art. 1, c. 72, Comp. St. 1909. These sections are as follows: Section 59: "An action other than one of those mentioned in the first three sections of this title, against a nonresident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose." Section 60: "Every other action must be brought in the county in which the defendant, or some one of the defendants, resides, or may be summoned." Section 73: "A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officers; or, if its chief officer is not found in the county, up on its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, or last usual place of business of such corporation." Section 75: "When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent." Section 912: "A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer, or, if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof." Section 914: "When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent." aging agent." These words have received judicial construction by many of the courts of this country; but it would extend this opinion to an unreasonable length to collate the cases, and we will be content by referring to 5 Words and Phrases, p. 4320. As a general definition we incline to the first one given by the authority referred to, which is: "A managing agent' must be some person vested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity and under the direction and control of superior authority, both in regard to the extent of his duty and the manner of executing it"-citing a number of cases. Other definitions are given, but which do not differ essentially from the above, and to which reference may be had. In Porter v. Chicago, & N. W. R. Co., 1 Neb. 14, the late Judge Mason in writing the opinion of the court said: "An agent who is invested with the general conduct and control, at a particular place, of the business of a corporation, is a managing agent,' within the meaning of the Section 4, art. 1, c. 72, Comp. St. 1909: "Service upon railroad companies may be made as upon other corporations, or by leav-seventy-fifth section of the Code, which auing a copy of the summons by the proper officer, with any station agent, ticket agent, conductor, or other officer of said railroad formed within the limits of this state, or left at their usual place of business within said county." The question arises: Has plaintiff by the service made brought her case within any of those sections? As we view the question, plaintiff's right must depend upon the provisions of sections 73 and 75 of the Code, or section 4, art. 1, c. 72, Comp. St. 1909, above quoted. If the service comes within the provisions of section 73 it must be because either the agent of the Illinois Central Company, or that company itself, is the "managing agent" of the Minneapolis & St. Louis Company. The same is true of section 75. Upon this point the evidence showed that the Minneapolis & St. Louis Company had no agent or agency in Omaha or elsewhere in this state, and that neither of the parties served had any management of the traffic or business of that company, unless the mere fact of selling the coupon ticket, as such tickets are sold throughout the country, constituted such "managing" agency. If we assume that the copy of the ticket shown in evidence is, in its general terms, a correct copy of the ticket actually sold plaintiff, it contains the following clause: "In selling this ticket for passage over other lines, and in checking baggage on it, this company acts only as agent, and is not responsible beyond its own line." While this recital might be construed as establishing the agency of the Illinois Central Company in the sale of the ticket, yet we are unable to discover how that agency could be extended further, or how it could constitute the thorizes service of summons on a managing agent of a foreign corporation, and it is immaterial where he resides." The service was held good in that case as the defendant had a ticket and freight office at Omaha and ran its passenger and freight trains into that city, and the service was made upon the person having general charge of the business of the company, both there and in Council Bluffs. As it is made clear, by the evidence, that the only authority of the Illinois Central Railroad Company or its agent was to sell the coupon ticket over the Minneapolis & St. Louis Railroad as they did over all other roads over which passengers were to be routed, we cannot hold that either was a "managing agent" within the provisions of the sections above quoted. We are unable to see that the service comes within the provisions of section 4, art. 1, c. 72, Comp. St. 1909. It sufficiently appears that the Minneapolis & St. Louis Company has neither station, station agent, ticket agent (except as above stated), conductor, or other officer of the company, or that said company is "formed within the limits of this state." There is no doubt that had the Minneapolis & St. Louis Company had a station or place of business in Douglas county, and had the summons been served upon the agent of the company who was controlling and managing its affairs in this state, even to a comparatively limited extent, the service might have been held good; but that is not this case. It is true that the petition states a cause of action against the Minneapolis & St. Louis Railroad Company. It is carefully and skillfully drawn. But we must look to the facts as shown by the evidence for the basis of the decision of the district court and |