Opinion by JUDGE PIERCE.

Plaintiff, in its complaint, and by an affidavit subsequently filed, alleged that defendant orally contracted with a law firm, which was plaintiff's assignor, to pay legal fees. According to plaintiff's allegations, the law firm was to render legal services to the defendant, as guardian of the estate of his sister, and to the defendant individually; and defendant was to pay for these services at an hourly rate regardless of whether any attorney's fees could be recovered from the estate of defendant's sister. All fees received from the estate were to be deducted from the sum due from defendant. Plaintiff further alleged that partial payments had been received by the assignor of plaintiff, but that there was a balance due and owing under the contract.

Defendant answered, denying the existence of the contract, and also moved for summary judgment on the ground that an attorney's fee awarded to plaintiff's assignor in the estate proceedings of defendant's sister, was a bar to the present action under the doctrine of res judicata. Following a hearing at which the trial court was presented with stipulations, exhibits, and argument of counsel, the trial court ruled in favor of the defendant on the motion for summary judgment and its minute order stated as follows:

"The court found that there was a question of fact as to whether or not defendant had made an independent contract with plaintiff's assignors for the payment of attorney's fees. However, because the recognition of such an independent contract would divest the court by private agreement of its plenary jurisdiction over probate estates, the issue as to whether or not there is an independent agreement becomes immaterial.

"There being no material issues of fact, the motion for summary judgment is granted against plaintiff . . . on grounds that the amount of attorney's fees is res judicata, having been determined in the probate court proceedings."

In the fall of 1969, defendant had contacted plaintiff's assignor regarding concern he had for protecting the assets of his sister, whom he considered to be incompetent to handle her financial affairs. There was suspicion that other relatives were appropriating the sister's assets. Although the sister was declared to be a mentally competent person, in June of 1970 the law firm was instrumental in establishing a conservatorship estate in Larimer County protecting her assets. The law firm performed various other services for the estate until February of 1971 when defendant asked the law firm to withdraw from the case. The attorneys petitioned to withdraw and asked for an allowance of attorney's fees to be paid from the estate. After a full hearing, the court ruled, in part, as follows:

"That considering the time claimed to have been spent by petitioners from December 1969, to the present; the apparent size and complexity of the estate; and the net results achieved to date on behalf of the estate; the court finds that the sum of Five Hundred Dollars ($500) is a fair and reasonable attorney fee to be allowed petitioners from the estate . . . ."

[1] The sole question before us is whether or not this finding and order in the probate court of Larimer County operates, by virtue of the doctrine of res judicata, as a bar to the present action. Our answer is that it does not.

Although the court in the Larimer County action was aware of many of the facts regarding the alleged contract, which forms the basis of the present action, its ruling went no further than to determine the amount reasonably due the law firm from the estate when all of the factors stated in the order were taken into account, including the size of the estate and the benefit which it received. It merely constituted an order to the defendant, in his role as guardian, to pay plaintiff's assignor a certain amount out of the assets of the estate.

In the present action, however, defendant appears in a different capacity. He is being sued individually on a specific contract, rather than in his fiduciary capacity as guardian. The Larimer County District Court did not have personal jurisdiction over the defendant and could not have entered an order binding on him personally. In the present case, the Boulder County District Court does have personal jurisdiction over him and, under this complaint, is concerned solely with the issue of whether or not he is personally liable for damages pursuant to the alleged contractual agreement with the law firm.

The action taken in the estate of the sister is only incidentally involved in the present action with regard to the damages, if any, which might be awarded. A further distinction between the two actions is apparent when we consider that the evidence necessary to sustain the two actions is not identical. Pomponio v. Larsen, 80 Colo. 318, 251 P. 534.

Thus, there is no identity of the subject matter, cause of action, or capacity of the parties in the two actions, and therefore, the prerequisites for the application of res judicata are not present. Hizel v. Howard, 144 Colo. 15, 354 P.2d 611; McDermott v. Bent County Irrigation District, 135 Colo. 70, 308 P.2d 603; Newby v. Bock, 120 Colo. 454, 210 P.2d 985.

[2] It was the view of the trial court that C.R.S. 1963, 153-14-16, requires that all actions regarding attorney's fees which are in any way incident to the administration of an estate are exclusively within the jurisdiction of the probate court. We do not so read this statute. It controls only such orders as are necessary to determine what disbursements shall be made from estate funds as fees for personal representatives and would not control the determination of the factual issues in this case.

Judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.