It is contended that the Superior Court acquired no jurisdiction to make such order in the original case of In re Stone because the proceeding was erroneously commenced before the clerk, who had no jurisdiction.’ When the matter reached the Superior Court by appeal the judge had the right under the statute to assume jurisdiction and dispose of the case as if originally begun there. Clark’s Code, sec. 255 (3d Ed.); Roseman v. Roseman, 127 N. C., 497, and cases cited.
The case of In re Stone was still pending in the Superior Court by virtue of the decree of Bond, J., who tried it at October Term, 1916, as. follows:
“It is further ordered, adjudged and decreed that the said Carey W. Stone, as administratrix and guardian, render an account to the Clerk of the Superior Court of Wake County on the sum of $6,500 received by her for the use of the said infant, Thomas S. Stone; that she give the bond in double the said amount as guardian of the said infant, as required by law, and that she be allowed until the first day of December to give said bond in the penal sum of $13,000.
*338“It is further ordered and adjudged that the said Carey W. Stone, guardian, pay the costs of this action out of the entire fund-; and it appearing that notice of appeal to the Supreme Court has been given herein, the amount of attorneys’ fees to be paid to the attorneys representing the next friend in the protection of the estate of said infant is reserved for the future determination of this court, to be taxed against the fund belonging to said infant.”
By reason of that decree the Superior Court retained its control over the case, and when the appeal from the clerk came before Judge Stacy he had jurisdiction to hear the matter de novo and to treat it as a motion in the original cause.
The facts are that Mrs. Stone, as administratrix, recovered $10,000 for the negligent killing of her husband. A controversy arose between her and her only child as to the division of this fund. In that action E. P. Stone, uncle of Thomas S. Stone, the infant, was appointed next friend by the court to protect the interests of the infant. In order to do so, he employed counsel to appear in the cause, which they successfully prosecuted to this Court, and thence followed it to the Supreme Court of the United States. Under the final judgment, they recovered for the infant $6,500.
We are of opinion that the Superior Court retained jurisdiction of the cause and control of the fund, and that the judge had authority to make the order. It was peculiarly his duty to make the allowance under the circumstances of this case, as the next friend had been directed to employ counsel and the infant’s mother and guardian were hostile to them.
The prochein ami, or next friend, is appointed by the court to protect the infant’s rights. It is essential that he have the assistance of counsel learned in the law. The infant has no power to contract as to fees, and in most cases is too young to understand such matters. Referring to the duty of the court in respect to infants, in Tate v. Mott, 96 N. C., 23, Judge Merrimon says: “The infant is in an important sense under the protection of the court; it is careful of his rights, and will in a proper case interfere in his behalf and take, and direct to be taken, all proper steps in the course of the action for the protection of his rights and interests.”
It would be very singular that the Courts should assume the duty of seeing that all steps are taken to protect the infant’s rights and yet deny to themselves the power to compel the payment of the necessary expenses out of the infant’s estate recovered in the cause.
While the next friend has power to employ counsel to prosecute the action, and it is his duty to do so, he cannot make a binding contract for compensation. Honck v. Bridwell, 28 Mo. App., 644. The court *339may fix tbe attorneys’ compensation without regard to any contract. 14 Ency. P. & P., 1037, and cases cited; Cole v. Superior Court, 63 Cal., 87.
In this case tbe Supreme Court of California says: “An attorney accepting employment and rendering services under sucb circumstances must rely upon tbe subsequent action of tbe court in ascertaining and adjudging proper compensation. . . . There is no place here for tbe doctrine of an implied promise upon a ■quantum meruit. . . . Tbe attorney performing legal services for tbe infant aids tbe court in carrying out its duty of protection. He is not only an officer of tbe court in a general sense, but is the special agent through which tbe court acts.”
Tbe Court further says: “Tbe statute being silent as to tbe tribunal which is to fix tbe compensation, it seems to reasonably follow that tbe court placing him in position and making use of bis services would have tbe fixing of tbe compensation of tbe attorney employed.”
The case of Outland v. Outland, 118 N. C., 141, is direct authority. In that case Thomas Outlaw, non compos mentis, brought action by bis next friend to subject land to a ben for a legacy devised by bis father. Tbe next friend employed counsel. Tbe plaintiff was successful in charging tbe land with tbe legacy. Counsel was allowed $200 by tbe Superior Court. In reviewing tbe matter, tbe Supreme Court said: “We think the allowance of $200 as an attorney’s fee in this ease is too much and it is reduced to $100.” Tbe Court passed on tbe allowance and reduced it and allowed tbe amount that seemed just. See, also, Graham v. Carr, 133 N. C., 458. We think our position is sustained also by tbe following additional cases: Colgate v. Colgate, 23 N. J. Eq., 373; Richardson v. Tyson, 110 Wis., 572; Smith v. Smith, 69 Ill., 313. We do not question tbe authority of sucb cases as Mordecai v. Devereux and Patterson v. Miller.
Tbe question involved in this case was not presented in those cases. There was no next friend in either of those cases and no attorneys representing infants by direction of tbe court. In this case tbe Superior Court did not interfere between attorney and client. Tbe attorney was not employed by tbe infant, but by direction of tbe court, and acted under, its control. To our minds, it would be extremely unfortunate to tbe cause of infants generally to bold that tbe court, has no power to reward tbe attorney out of tbe estate recovered.
Coming now to tbe matter of compensation, we concur with tbe Illinois Court in Smith v. Smith, supra, that “Courts have no right to be prodigal with tbe means of their wards; and whilst they should make just allowances, they are bound to see that their funds are protected.”
Attorneys, being officers of tbe court, are sometimes compelled to *340render laborious service for no fee, and to tbe credit of tbe legal profession be it said such service is rendered most willingly. "Wben serving under tbe direction of tbe court to protect tbe rights of an infant, tbeir compensation is to be measured by tbe standard of official emoluments .ratber than by tbat of tbe prices demanded and paid between individuals free to contract at will.
In tbis case, tbe services rendered by the able counsel who represented tbe infant were undoubtedly'valuable and attended with expense, and have so far been unrewarded. Tbe case was argued before tbis Court and the Supreme Court of tbe United States; but it is not altogether a question as to what tbeir services are worth; so much as it is, what is tbe infant’s estate able to pay? Measured by tbat standard, we feel it our duty to reduce tbe sum allowed to $500.
"With tbat modification, tbe order of Stacy, J., is affirmed.
Tbe costs of tbis Court will be taxed against Mrs. Carey W. Stone individually, one-balf and the other half against Winston, Biggs, and Amis.
Affirmed.