Baker v. St. Louis Union Trust Co.

• Decision Date: 08 November 1921
• Docket Number: No. 16271.,16271.
• Parties: BAKER v. ST. LOUIS UNION TRUST CO. et al.
• Court: Missouri Court of Appeals

234 S.W. 858

BAKER v. ST. LOUIS UNION TRUST CO. et al.

No. 16271.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Rehearing Denied December 5, 1921.

Appeal from St. Louis Circuit Court; Z. Hugo Grimm, Judge.

"Not to be officially published."

Claim by Henry A. Baker, as administrator pendente lite of the estate of Theresa L. Bernero, deceased, against the St. Louis Union Trust Company, as executor of the estate of Theresa L. Berner, deceased, and another. From a judgment of the circuit court disallowing the claim, on appeal from the probate court, the claimant appeals. Affirmed.

Thos. D. Cannon, David Goldsmith, M. N. Salem, E. P. McCarthy, and John A. Burke, all of St. Louis, for appellant.

John M. Goodwin, of St. Louis, for respondents.

DAUES, J.

This proceeding was commenced in the probate court of the city of St. Louis by appellant, administrator pendente lite, filing there on January 4, 1917, a petition for allowance to pay certain attorney's fees. The probate court allowed the claim; the cause went to the circuit court on appeal and the allowance was there denied. Thereupon the administrator pendente lite appealed to this court.

It appears that Theresa L. Bernero died in July, 1911. She left a will by which the St. Louis Union Trust Company was appointed executor, under which the said trust company qualified and proceeded to administer upon said estate. She also left as her sole heir at law one Louis Bernero, an infant. This infant was the son of a deceased adopted son of Theresa Bernero. The will contained a bequest to the St. Louis Union Trust Company of $10,000 in trust for this infant. She made some smaller bequests to relatives, giving the balance of her estate, which was a large one, consisting of personal property, to her sister Clotilda Longinotti, and her lineal descendants. Louis Bernero, through his curatrix, brought suit to contest the validity of the will on the ground that the testatrix was of unsound mind, and that she was unduly influenced to execute said will.

After the will contest had been instituted, Louis Bernero filed a motion in the probate court of St. Louis, where said will was being probated, for the appointment of an administrator pendente lite. Attorneys Thos. D. Cannon, E. P. McCarthy, and John A. Burke originally represented the contestant in the will contest action and in the motion for an administrator pendente liite. Attorneys Moses N. Sale and David Goldsmith became associated with these attorneys in said proceedings.

The will contest case having been dismissed by the circuit court, same was appealed to the Supreme Court, and was by that court remanded to the circuit court. In the meantime no action was taken under the application for administrator pendente lite. When the Supreme Court held that the son of the adopted son was the heir at law, and remanded the case, the five attorneys at law above named, on June 9, 1916, acting as counsel for Louis Bernero, pressed the motion for the appointment of the administrator pendente lite in the probate court, and accordingly, three days thereafter, the probate court appointed Henry A. Baker as such, and ordered the letters testamentary theretofore granted to the trust company as executor to be suspended pending the will contest, and also ordered that the trust company make settlement and pay over to the administrator pendente lite whatever property said trust company held of said estate.

On the following day the St. Louis Union Trust Company as executor, and Clotilda Longinotti as residuary legatee under said will, presented their petitions, affidavits and bonds for an appeal from the order of the probate court of June 12th suspending the letters testamentary of the St. Louis Union Trust Company, executor of the will and estate of said Theresa L. Bernero, deceased. It plainly appears that the appeal was sought from that portion of the order only which suspended the letters testamentary of the trust company. Nothing appears from the petitions and affidavits for appeal showing that any effort was being made to appeal from the order appointing Baker administrator pendente lite.

The probate court took the position that the order in question was not appealable, and refused to fix and approve the appeal bonds, and accordingly entered an order denying the appeal. Thereafter, on the 16th day of June, the trust company filed a mandamus suit in the St. Louis circuit court against the judge of the probate court to compel him to allow said appeal. This case was entitled "State ex rel. St. Louis Union Trust Co. v. Charles W. Holtkamp, Judge." At the same time the residuary legatee likewise brought a mandamus suit against the judge of the probate court to compel him to allow her appeal.

The record discloses that immediately after the appointment of Baker as administrator pendente lite the above-named attorneys at law, who were counsel for the will contestant, were also employed by the administrator pendente lite. One of these attorneys went to the probate court, procured a certified copy of the order of appointment of Baker, proceeded to the St. Louis Union Trust Company to make a demand upon it, and there discussed the assets of the estate with a representative of the trust company. On the day following Baker's appointment, he conferred with the attorneys appointed by him, as aforesaid, and counseled with them about the mandamus proceedings which, it seems, he then anticipated. Thereafter, these counsel, acting in the name of Judge Holtkamp and in his behalf, attempted to prevent the issuance of the alternative writs of mandamus. The writs being issued, these five attorneys in the name of the probate judge prepared and filed the returns to said alternative writs. An application for a change of venue by the probate judge transferred the case from one division to another of the circuit court. These cases were never tried; the settlement of the will contest making a trial unnecessary.

By agreement there was a judgment entered sustaining the validity of the Bernero will. This judgment was entered December 12, 1916. This set aside the appointment of Baker as administrator pendente lite, and also expunged the order suspending the letters of the trust company as executor. The Bernero will, therefore, was sustained, and the letters to the trust company were restored before Baker as administrator pendente lite had collected in or received any assets belonging to said estate.

The executor never made a settlement to the administrator pendente lite. There is some controversy as to when said settlement was due, but we think it appears with reasonable certainty that attorneys for the administrator pendente lite agreed that no settlement need be made by the executor. At any rate, during the period from the date of the order of the probate court revoking the letters of the trust company until the day of the restoration thereof, no settlement was made, nor was there any property turned over to Baker, and, indeed, it appears that during that time the trust company performed no acts whatsoever as executor said estate.

Now we reach the foundation of this controversy. After the judgment of the circuit court sustaining the will and revoking Baker's appointment as administrator pendente lite, he (Baker) filed in the probate court an application for an order on the trust company as executor of said estate, directing said executor to pay these five attorneys for legal services rendered by them as his counsel. The application, or petition for allowance, as amended, is by no means clear that a demand for allowance for services aside from the mandamus cases is made. However, we will so consider same. The application recites that Baker employed these attorneys after his appointment as administrator pendente lite to represent judge Charles W. Holtkamp in each of said mandamus proceedings, and that in pursuance of such employment the attorneys rendered services to him, Baker, directly, and, furthermore, that the said attorneys appeared in each of said mandamus proceedings and opposed the same pursuant to said employment, and that said attorneys were entitled to reasonable compensation for such services. The probate court allowed claimant the sum of $1,000. The case was tried in the circuit court without a jury, same being waived by stipulation.

Plaintiff (appellant), before the submission of the cause in the circuit court, filed his request in writing that the court state in writing its conclusion of fact found separately from its conclusion of law, which was done, and to which we will allude at the appropriate stage of our discussion.

Counsel for appellant in their brief present and argue for a reversal of this case under four points: First, that the proceeding is in the nature of an equitable proceeding, and not an action at law; second, that the administrator pendente lite was entitled to an allowance for the services of his counsel rendered directly in the mandamus proceedings; third, that the appellant was entitled to an allowance for the services of his counsel other than those rendered directly in the mandamus proceedings; and, fourth, that the value of the services as found by the trial court was inadequate under the evidence. We will treat the case in that order.

At the beginning, therefore, we must apply the legal compass to determine whether we must review this case as a suit in equity or as hedged about in the narrower rules applicable to appeals of law actions.

We have here a demand for an allowance against the estate of a deceased person, then in the process of administration, presented by an administrator pendente lite to cover fees of attorneys claimed to have been incurred in the course of administrating such estate. We are firmly convinced that such a proceeding is...