¶1dissenting. Code § 113-1522 authorizes an administrator to provide an estate with necessary competent legal services. I know of no provision of law which authorizes anyone else to provide such services and bind an estate other than Code § 113-1512. There was no assignment to the heirs in this case. If there is a legal representative, the right to recover realty is in him. If there is none, the heirs have a right to sue, but must do so in their own names and not acting in the name and place of a representative. Code § 113-901. Again, if the legal representative consents, heirs may sue for realty in their own right. Code § 113-907. The two Code sections provide statutory authority for heirs to sue for real estate but only in their own names and right. The Supreme Court has declared an exception to the statutory rule, which is that heirs may sue in their own names where an administrator is insolvent, unwilling to collect assets, or is in collusion with others to defraud the *195estate and refuses to sue. Harrison v. Holsenbeck, 208 Ga. 410, and cases cited. We note in some of the cases cited in the Harrisoncase that the language is to the effect that the heirs may sue to protect their interests, which we construe to mean that an action in such cases is an individual action and not one brought in the place and stead of an administrator. It therefore follows that, since the administrator did not employ counsel to set aside the deeds, and the actions were not instituted by authority of law in the place and stead of an administrator so as to give rise to a promise to pay, either express by the heirs suing, or implied by law from the heirs suing in the place of the administrator, on the above two last-named theories the petition for fees did not set out a cause of action. In Edwards v. Kilpatrick, supra, cited by the majority, the expression used by the court, to the effect that the right of action in the heirs exists in the same manner and to the same extent only as it does in the administrator, does not mean that such an action by the heirs is not an action by them individually to protect their own interests. This statement from the Edwards case refers in that case only to the question of venue. In Harrison v. Holsenbeck, supra, it was held that such an action as this one is an exception to Code § 113-907. If it were an exception to Code § 113-1512, as the majority holds, I would be inclined to agree with them on this phase of the case.
¶2The petition did not set out a cause of action for fees under the theory that the action was by some of a class on behalf of the whole of the class and for the benefit of all, and under the theory that a fund or property belonging to all was recovered for the benefit of the class, because not all of the heirs would have benefited from the action brought. See 142 A. L. R. 1459, and 79 A. L. R. 521, for the general rule in administration of estates. It would seem that, if it was an equitable class action, the attorneys’ fees would have had to be awarded by the court wherein the actions were filed. Georgia Veneer &c. Co. v. Florida National Bank, 198 Ga. 591 (3) (32 S. E. 2d 465). Since the actions filed by the plaintiff were not class actions, the only way in which the plaintiff could have compelled the defendants therein to pay any of her attorneys’ fees would have been to have charged the defendants with bad faith and recover the *196judgment for fees in those actions. I think that the general demurrer to the action for fees should have been sustained. I am also of the opinion that the plaintiff was not entitled to recover the amount awarded. Even if it can be said that the plaintiff had authority to employ counsel for the estate and pay them a reasonable fee, whatever contract she made which was reasonable inured to the benefit of the estate. The plaintiff is not entitled to any sum for her personal use. She can only recover such sums as she needs to discharge her liability for fees. She has paid her attorneys and the most she can recover, if she is entitled to at all, is the amount she has paid out, if it is reasonable. She cannot either recover a larger sum than a reasonable sum she has paid and put it in her pocket or repay herself what she has expended and make her attorneys a present of the excess over what she herself has paid. She has settled with the attorneys in full and, if the amount is reasonable, the law will require her to pay no more, and any promise on her part to pay more is nudum pactum. Since the plaintiff failed to prove and the evidence fails to disclose that she had paid her attorneys fees amounting to $2,500, a verdict for that amount was not authorized.