Barrett v. Ball

• Decision Date: 31 March 1903
• Citation: 101 Mo. App. 288,73 S.W. 865
• Court: Missouri Court of Appeals
• Parties: BARRETT v. BALL.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 865

101 Mo. A. 288

BARRETT v. BALL.^*

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

ATTORNEY AND CLIENT—ASSIGNMENT TO ATTORNEY —VALIDITY.

1. Where an attorney had previously represented plaintiff in obtaining administration on the estate of his deceased son, and, after termination of his employment, plaintiff assigned to such attorney his entire interest in the son's estate, the validity of such assignment will be reviewed in a subsequent suit to set it aside in

the same manner as though the relation of attorney and client had continued.

2. Defendant represented plaintiff as attorney in obtaining administration on the estate of his son, and also represented the administrator in certain suits for the recovery of assets. Plaintiff was a man approaching 70 years of age, impaired in sight, in feeble condition, ignorant, and of shiftless habits. As the father of the son, he was entitled to the son's entire estate in Tennessee, together with one-sixth of the son's estate in Missouri, all of which he assigned to defendant for $75. Defendant made two trips to Tennessee, where he collected $573.80 on account of such estate, and also received from the administrator in Missouri, as the father's share, $136 in addition. Held, that the assignment should be set aside, and that defendant should be required to account for the amount received, less a reasonable credit for his professional services and expenses in collecting the fund.

Appeal from Circuit Court, Montgomery County; E. M. Hughes, Judge.

Action by John M. Barrett against Claude R. Ball, to set aside an assignment of a distributive share in an estate. From a judgment in favor of defendant, plaintiff appeals. Reversed.

In September, 1898, plaintiff's minor son, Arthur Barrett, died in the state of New York; and his remains, together with his money and jewelry, in value about $1,500, were shipped back to Montgomery county, Mo. In addition to the above property, the deceased was entitled to $1,093 for services under a contract of employment with E. S. Gardner & Son, of Sumner county, Tenn. T. J. Powell, as public administrator of Montgomery county, took charge of the property sent to Missouri in September, 1898; and later E. S. Gardner was appointed his administrator, and took charge of the estate of the deceased in Tennessee. Under the laws of Tennessee, plaintiff inherited all of the property of the deceased minor son in that state. Under the laws of Missouri, the estate in course of administration in the hands of the public administrator was divisible into six parts, of which plaintiff, as father of the deceased, was entitled to one portion. The defendant acted as attorney for plaintiff and one of the other heirs in applying for an administrator in the state of Missouri, and in having the letters of administration by the public administrator taken out, and thereafter defendant was retained by the public administrator as attorney in the course of the administration. On September 9, 1899, plaintiff executed and delivered to defendant an instrument in the form following:

"I, John M. Barrett, of Truxton, Lincoln county, Missouri, the father of Arthur Barrett, deceased, and being a lawful heir of such estate, for value received, do hereby sell, assign, transfer and set over unto Claude R. Ball, of Montgomery City, Mo., all my right, title and interest in and to the estate of Arthur Barrett, deceased, now in the hands of Thomas J. Powell, public administrator of Montgomery county, Missouri (who is public administrator in charge of said estate). And said Thomas J. Powell, public administrator in charge of said estate of Arthur Barrett, deceased, or his successor as such administrator, is hereby directed to pay over unto said Claude R. Ball all moneys due me as an heir to such estate, at any and all times, when a distribution of said estate is had or made, and all claims of whatever kind that I may have against said estate, I hereby for value received, assign to Claude R. Ball. Dated this 9th day of September, 1899."

At the time of the execution of this assignment the defendant paid the plaintiff therefor the sum of $75, and later, in turn, defendant purchased the interests of other heirs of the estate of Arthur Barrett, paying for one $75, and for others $140 each. March 28, 1900, plaintiff executed and delivered to defendant the following additional instruments:

"Montgomery City, Mo., Mar. 28, 1900. E. S. Gardner & Son, Saundersville, Tenn., or to Ed. Gardner, Jr., Administrator of the Estate of Arthur Barrett, Deceased: Please pay to Claude R. Ball, of Montgomery City, Missouri, all moneys in your hands belonging to the estate of Arthur Barrett, deceased, due me as the father of Arthur Barrett, deceased, according to the law of descents and distributions of the state of Tennessee, whether in your hands as individuals, or whether in the hands of Edward Gardner. Jr., as administrator of said estate, and this order when countersigned by Claude R. Ball, shall be your receipt for the same. The identification of Claude R. Ball is hereby waived. Yours truly, John M. Barrett.

"State of Missouri, County of Montgomery —ss.: I hereby certify that on this 28th day of March, 1900, the above article was signed by John M. Barrett and that his signature thereto is genuine. I further certify that I am personally acquainted with John M. Barrett. In witness whereof, I have hereunto set my hand and affixed my official seal at my office in Montgomery City, Missouri, this 28th day of March, 1900. Thomas T. Johnson, Clerk Circuit Court Montgomery County, Missouri."

"State of Missouri, County of Montgomery. John M. Barrett, being duly sworn, upon his oath says that he is the father of Arthur Barrett, deceased; that Arthur Barrett was born August 10, 1878; that he died at Sheepshead Bay, New York, on September 10, 1898; that he was killed while in the services of E. S. Gardner & Son; that his remains were shipped to me at Montgomery City, Missouri, and his remains buried in the cemetery at Montgomery City, Missouri; says further that at the time of the death of Arthur Barrett he was under the age of 21 years; that he was single and unmarried, and left no widow or children to survive him; that his parents and living brothers and sisters are as follows: John M. Barrett, father; Martha Jane Barrett, mother; Bell Woolwine, sister; D. Boone Barrett, brother; Elmer Barrett, brother; Bailey Barrett, brother; and Maude Barrett, sister; Helen Pennington, an infant girl named ____ Grupp, daughters of Bettie Grupp, deceased, who was a sister of Arthur Barrett, deceased. The said Helen Pennington and infant girl baby, name ____ Grupp, are nieces of Arthur Barrett, deceased; that all of the above named are of lawful age, except Maude Barrett, Helen Pennington, and the little Grupp girl, who are minors; says further that the said Arthur Barrett was never married. John M. Barrett.

"Subscribed and sworn to before me this 28th day of March, 1900. Thos. T. Johnson, Clerk of the Circuit Court."

"State of Missouri, County of Montgomery. George W. Boddie, Clerk and Master of the Chancery Court, Sumner County, Tenn.— Dear Sir: I am the father of Arthur Barrett, deceased, who died in September, 1898, at Sheepshead Bay, New York, while in the service of E. S. Gardner & Son of Saundersville, Tenn. You will please pay to Claude R. Ball, of Montgomery City, Missouri, all the money in your hands belonging to me as the father and heir of Arthur Barrett, deceased, according to the laws of descents and distributions of the state of Tennessee, and this when countersigned by the said Claude R. Ball, shall be your receipt. Dated at Montgomery City, Missouri, this 28th day of March, 1900. John M. Barrett.

"I hereby certify that the above instrument of writing was signed by John M. Barrett, that the same was signed in my presence, and that his signature thereto is genuine. I further certify that said John M. Barrett is the father of Arthur Barrett, deceased, who died as stated in the above manner. In witness whereof, I have hereunto signed my name and affixed my official seal. Done at my office in Montgomery City, Missouri, this 28th day of March, 1900. Thomas T. Johnson, Clerk Circuit Court, Montgomery County, Missouri. [Seal.]"

"State of Missouri, County of Montgomery —ss.: I, John M. Barrett, father of Arthur Barrett, deceased, formerly a resident of Truxton, Lincoln county, Missouri, but now a resident of Warrenton, Warren county, Missouri, for value received do hereby sell, assign, transfer, and set over unto Claude R. Ball of Montgomery City, Missouri, all my interest as the father and heir of Arthur Barrett, deceased, and do by these presents sell, assign, transfer and set over unto said Claude R. Ball all of my interest in and to the estate of my deceased son, Arthur Barrett, there being an administration on said estate in the probate court of Montgomery, Montgomery county, Missouri, at Montgomery City, in said county, of which Thomas J. Powell is the administrator of and in charge of said estate, also there is an administration on said Arthur Barrett's estate in the county court or chancery court of Sumner county, Tennessee, Ed. Gardner, Jr., being the administrator of and in charge of said estate, in the state of Tennessee. Now by these presents I sell, assign, transfer and set over unto said Claude R. Ball all my interest in the estate of said Arthur Barrett, both in Missouri and Tennessee, and the administrator of said estate in Missouri, and the administrator of said estate in Tennessee, are hereby authorized and directed to pay to said Claude R. Ball all my interest as father and heir to the said estate of Arthur Barrett, deceased. The administrator of Montgomery county, Missouri, is directed to pay my interest in said estate to Claude R. Ball, my interest to be determined according to the laws of descents and distributions of Missouri, and the administrator of said estate...