Following the decision of this court in the case of Bogue et al. v. Sachs et al., 68 S.D. 18, 297 N.W. 793, the case was retried below, and upon the retrial the respondents submitted evidence tending to establish the insolvency of the executor, Clarence Sachs. The trial court found that Clarence Sachs was insolvent at all times material to the issue here involved. This finding is supported by the evidence. We clearly intimated in the prior opinion that should it be established that the personal representative is insolvent, then it is within the authority of the court to make an allowance and direct payment of a reasonable attorney fee from the assets of the estate. We now expressly so hold. In view of this holding and this record we are convinced that no question of election of remedies or estoppel by judgment is involved.

The judgment appealed from is affirmed.

All the Judges concur.