scribes the length of notice. Section 7648 provides that all claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time fixed in the notice, or with certain exceptions be forever barred, with a proviso that nothing in the title (Probate Code) shall be so construed as to prohibit the foreclosure of liens or mortgages as hereinafter provided.

"Section 7649 provides for the presentation of claims, and that if the claim, or any part thereof, is secured by mortgage or lien which has been recorded, it shall be sufficient to describe the mortgage or lien and refer to the date, volume, and page of the record.

"Section 7650 provides, among other things, that the administrator must indorse on a claim properly presented to him his allowance or rejection with the date, and if he allows the claim he must present it to the judge, who must indorse upon it his allowance or rejection. If the administrator or the judge for ten days refuses or neglects to indorse such allowance or rejection, the claimant may, at his option, on the tenth day treat the claim as rejected on that day.

...

"Section 7651 provides provides that 'every claim allowed by the executor or administrator and approved by the judge, or a copy thereof must, within thirty days thereafter, be filed in the court, and be ranked among the acknowledged debts of the estate to be paid in due course of administration.'

"Section 7653 reads as follows: "When a claim is rejected, either by the executor or administrator, or the judge, the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due; otherwise the claim shall be forever barred.'

"Section 7654 provides that when a claim is presented to the judge he may examine the claimant and

others on oath and hear legal evidence touching the validity of the claim.

"Section 7655 provides that no holder of any claim against an estate shall maintain an action thereon unless the claim is first presented to the executor or administrator, except that an action may be brought without notice by any holder of a mortgage or lien to enforce the same against the property subject thereto. But to do that the party must expressly state in his complaint that he waives all recourse against other property.

"Section 7659 provides that a judgment, rendered against an executor or administrator on a claim against the estate, only establishes the claim as though it had been allowed by the executor or administrator and, the judge, and that the judgment must be that it be paid in due course of administration. In other words, if the claim is allowed by the legal representative and the judge, that establishes the claim and it must be paid in due course. If rejected rejected by either, the claimant must sue, and if he obtains judgment establishing his claim, that operates the same as an approval by the executor or administrator and the judge, and the amount so established must be paid in due course, a certified transcript of the judgment having been filed among the papers of the estate."

There can be no doubt that claims for debts contracted by decedent in his lifetime must be presented to the administrator or executor, as provided in the sections referred to, and, if rejected or disallowed, as therein stated, suit must be commenced within the time specified or the claim will be forever barred. We are of opinion that these provisions are jurisdic- Executors and tional, and unless administratorscompliance is made procedure for therewith, the court claim against has no power to allow the claim. Such seems to be the uniform trend of judicial opinion construing statutes similar to those

recovering

estate.

The statute itself is so conclusive upon this question it is unnecessary to burden the opinion with the citation of cases. Counsel for appellant makes no contention to the contrary. Their contention is that the sections of the statute relied on by respondent, respecting the time within which claims must be presented and suits instituted, in case of rejection or disallowance, relate only to claims based upon obligations against decedent arising in his lifetime, not secured by lien or mortgage. This is also our understanding of the scope and meaning of the statute in respect to the presentation of claims by creditors and the commencement of actions to recover thereon in case of disallowance or rejection.

-construction of statutes.

In Garver v. Thoman, 15 Ariz. 38, 135 Pac. 724, supra, cited by respondent, the first headnote reads: "Creditors' of an estate are those who have become such because of dealings or transactions with the decedent in his lifetime, and not those dealing with the executor after decedent's death, and the claims of 'creditors' are debts or obligations with which the personal representative had nothing to do originally, but which are to be verified, proved, and allowed, as provided by Civil Code 1901, TT 1743, 1745, 1746."

It is contended by appellant that the claim of appellant is secured by a lien on the fund in the estate recovered and brought into the estate through the efforts of appellant and his associates, as attorneys at law, in actions prosecuted by them against the insurance companies. The facts are stated at length in

252 Pac. 891.)

the statement of the case, so that a bare reference thereto is all that is necessary in this connection. Appellant claims and asserts his right to a lien upon such fund not only because of Utah Comp. Laws 1917, § 346, which provides for an attorney's lien, but also by virtue of a contract with the decedent, Elaine R. Agee, in her lifetime, by which his fee for services in such cases was contingent solely upon recovery of the fund in question. It is also claimed by appellant that said Elaine R. Agee died before the completion of said services and the recovery of said fund, and that her administrator, defendant in this proceeding, continued said contract and agreement upon the same terms. The following authorities are among the many cited by appellant in support of his right to a lien on the fund: 6 C. J. p. 782, § 394; Buell v. Kanawha Lumber Co. (D. C.) 201 Fed. 762; Ex parte Plitt, 2 Wall Jr. 453, Fed. Cas. No. 11,228; Re Creighton, 93 Neb. 90, 139 N. W. 827; Wait v. Atchison, T. & S. F. R. Co. 204 Mo. 491, 103 S. W. 60; Bauernschmidt v. Bauernschmidt, 101 Md. 148, 60 Atl. 437; Lomack Home v. Iowa Mut. Tornado Ins. Asso. 155 Iowa, 728, 133 N. W. 725; Guardian Trust & D. Co. v. Greensboro Water Supply Co. 103 C. C. A. 451, 180 Fed. 321; Edwards v. Bay State Gas Co. (C. C.) 172 Fed. 971; Re A. B. Baxter & Co. 83 C. C. A. 106, 154 Fed. 22.

The cases above cited all relate to the question of attorney's liens and with one or two exceptions were equitable rather than statutory. The right to a lien in each case was sustained.

Counsel for appellant also refer to numerous cases under statutes authorizing attorney's liens, among which are the following under the New York statute, which is identical with ours: Re Ross, 123 App. Div. 74, 107 N. Y. Supp. 899; Re Knapp, 85 N. Y. 284; Re Kellogg, 96 App. Div. 608, 88 N. Y. Supp. 1033 id. 180 N. Y. 534, 72 N. E. 1144; Lee v. Van Voorhis, 145 N. Y. 603, 40 N.

E. 164; Arkenburgh v. Little, 176 N. Y. 551, 68 N. E. 1114; Re Pieris, 82 App. Div. 466, 81 N. Y. Supp. 927; Re Smith, 111 App. Div. 23, 97 N. Y. Supp. 171; Re O'Connor, 177 App. Div. 616, 164 N. Y. Supp. 574; Re Dawson, 110 Misc. 472, 180 N. Y. Supp. 271; Re Rabell, 175 App. Div. 345, 162 N. Y. Supp. 218; Re Kellogg, 96 App. Div. 608, 88 N. Y. Supp. 1033.

In most of the above cases the lien was enforced. In cases where it was not enforced, the cases are distinguished from the case at bar. It was held in some of the cases that it does not matter that the client happens to be an executor or administrator. See, especially, re Ross, supra.

Counsel for appellant also refers to Broadbent v. Denver & R. G. R. Co. 48 Utah, 598, 160 Pac. 1185, and Lundy v. Cappuccio, 54 Utah, 420, 181 Pac. 165. These cases involve the question of attorney's liens, under the Utah statute (§ 346), to which reference has been made. In both cases the lien was sustained. See also Strong v. Taylor, 82 Ala. 213, 2 So. 760, and Fischer-Hansen v. Brooklyn Heights R. Co. 173 N. Y. 492, 66 N. E. 395, referred to with approval by this court in the Cappuccio Case, supra.

Many other cases from other jurisdictions are referred to by appellant to the same effect.

Respondent's counsel refer to a few cases which they insist are against appellant's contention that an attorney's lien may be impressed upon the estate of a decedent. Gurnee v. Maloney, 38 Cal. 85, 99 Am. Dec. 352; Re Page, 57 Cal. 238; Waite v. Willis, 42 Or. 288, 70 Pac. 1034. It is also stated that many other states have attorney's lien statutes, but cases construing the same have not been called to our attention.

We are of opinion that appellant's contention in respect to the right of an attorney's lien Attorneys-lien on client's in cases of this kind estate. is sustained both by reason and by the great weight of

If

But it is contended by respondent that, under the provisions of § 7655, supra, while the holder of a lien upon the property of an estate may bring an action to enforce the same without notice, he must expressly state in his complaint that he waives all recourse against other property. That provision was, no doubt, included in the section to guard against a deficiency judgment. the claimant demands the preference over other creditors which his lien or mortgage gives him, he need give no notice to the admininstrator before commencing his action, but he must in his complaint expressly waive recourse against other property of the estate. The petition of appellant in the instant case does not expressly state that appellant waives all recourse against other property but the whole tenor of the petition, the terms of the contract relied on, the amount of the fund recovered, as compared with the fee demanded, together with the prayer of the petition is conclusive of the fact that appellant looks only to the fund upon which he has a lien, and that he has no recourse whatever against other property. Besides this, appellant's main reliance for his lien is his contract with the administrator under which contract the services were rendered. The statute requiring an express waiver as to recourse against other property therefore does not apply.

-claim for lien

waiver of recourse to other

property.

In our opinion, there is no merit in respondent's contention, and the cases cited in support thereof, as will appear on examination, have no application, to the facts in the case at bar. Re Baxter, 22 Ariz. 91, 194 Pac. 333; Bank of Sonoma County v. Charles, 86 Cal. 322, 24 Pac. 1019; First Nat. Bank v. Glenn, 10 Idaho, 224, 109 Am. St. Rep. 204, 77 Pac. 623.

Appellant makes the further point that, independent of his ar

(Utah,

rangement with the administrator that the services of appellant, as one of the attorneys of the administrator, would be continued on the same terms as appellant's contract with Elaine R. Agee before she died, nevertheless his contract with Elaine R. Agee continued in force after her death. In support of this proposition appellant cites the following cases: Wylie v. Coxe, 15 How. 415, 14 L. ed. 753; Barrett v. Towne, 196 Mass. 487, 13 L.R.A. (N.S.) 643, 82 N. E. 698; Price v. Haeberle, 25 Mo. App. 201. The cases seem to be in point. In the case last cited the first and second headnotes read:

-contract surviving death of client.

"(1) The death of the client does not revoke an attorney's authority to proceed, under a contract by which the attorney undertakes to prosecute to final adjudication a claim for an exclusively contingent compensation.

"(2) Such a contract being entire, the administrator cannot discharge the attorney without making the estate liable for the entire compensation stipulated for in the contract."

It is reasonable to presume that the administrator recognized the binding force as well as the justice of this rule, when he expressly continued the contract on the same terms after he qualified as administrator of Elaine R. Agee's estate.

There is another feature of this case which distinguishes it from the ordinary case in the administration of an estate. The petition shows that, after the administrator qualified as such, he applied by petition to the court for authority to prosecute the several cases against the insurance companies, and also for authority to employ counsel for that purpose. In ordinary cases in the administration of an estate, the administrator is not required to obtain an order for authority to prosecute actions in behalf of the estate or to employ counsel therefor. Comp. Laws, supra, § 7720, authorizes actions for the recovery of property

252 Pac. 891.)

by the administrator the same as might have been maintained by his intestate, and § 7739 allows the administrator reasonable fees paid to his attorneys for conducting such suits. In such cases, the attorneys are appointed by the administrator and suits conducted without a special order of the court. In the instant case, it is inferable from the petition filed in court by the administrator for authority to prosecute the cases and employ counsel that, in his opinion, the cases against the insurance companies would be hotly contested. (Which was afterwards proved to be the case.) case.) For that reason, he sought and obtained special authority to prosecute the suits and to employ counsel for that purpose. His manifest purpose in making special application to the court for such order was to relieve himself of personal liability, and by arranging with counsel for an attorney's fee contingent alone upon recovery, it does seem that he intended thereby that the fund to be recovered would be charged with a lien for the reasonable compensation of the attorney so employed. In any event, whether the administrator intended it or not, we are of opinion, as matter of law, that a lien for appellant's fee was impressed upon the fund from the time it was recovered.

Respondent makes the further contention that appellant's cause of action, if any he has, is against the administrator personally and not against the estate. Such, no doubt, is the rule in ordinary cases of administration. Upon this point respondent's counsel call our attention to many cases. The rule in such cases is so well established that it is unnecessary to refer to all the cases cited. In Brown v. Quinton, 80 Kan. 44, 102 Pac. 242, 18 Ann. Cas. 290, as reported in 25 L.R.A. (N.S.) 71, cited by respondent, there is a comprehensive note, commencing at page 72, in which the rule contended for by respondent is stated and authorities in support thereof are cited. The exceptions