Becht v. Miller, 27.

• Decision Date: 21 May 1937
• Docket Number: No. 27.,27.
• Citation: 273 N.W. 294,279 Mich. 629
• Parties: BECHT v. MILLER.
• Court: Michigan Supreme Court

279 Mich. 629

273 N.W. 294

BECHT

v.MILLER.

No. 27.

Supreme Court of Michigan.

May 21, 1937.

Proceeding by Carrie Brant Becht against Francis J. Miller, administrator de bonis non of the estate of Martha J. Brant, deceased. From an order of the circuit court affirming the order of the probate court allowing the final account of Francis J. Miller, administrator de bonis non of the estate of Martha J. Brant, deceased, Carrie Brant Becht appeals.

Remanded, with instructions.

WIEST, J., and FEAD, C. J., dissenting.Appeal from Circuit Court, Berrien County; Herman Dehnke, judge.

Argued before the Entire Bench.

Gore, Harvey & Fisher, of Benton Harbor (Stuart B. White, of Niles, of counsel), for appellant.

Ross H. Lamb, of Benton Harbor, for appellee.

Francis J. Miller, of St. Joseph, pro se.

CHANDLER, Justice.

Martha J. Brant died on November 7, 1928. By her last will and testament she made various devises and gifts to her three children, Mason Brant, Carrie Brant Becht, and Ida May Collins, and to her grandchildren, Lincoln Becht, son of Carrie Brant Becht, and Hallie Collins Patrick, daughter of Ida May Collins. The will named Carrie Brant Becht as executrix. Immediately there began a bitter contest between the legatees and devisees named in the will, which has resulted in continuous litigation of the estate until the present time. It is unnecessary for the purpose of this opinion to review all of the proceedings which have ensued.

On September 14, 1932, the executrix filed her supplemental final account, which was contested by Ida May Collins and Hallie Collins Patrick through their attorney, I. W. Riford. One of the objections alleged was that the executrix had failed to account for various bonds belonging to the estate, of the approximate value of $40,000. An order approving the supplemental final account as filed was entered by the probate court on October 14, 1932. Mr. Riford desired to withdraw as attorney and Ida May Collins and her daughter, Hallie Collins Patrick, engaged the services of Ross H. Lamb, who perfected an appeal from the order of October 14, 1932. This was the first appearance of Mr. Lamb in the litigation. The agreement under which Mr. Lamb was employed was on a contingent basis, and provided that he should receive 25 per cent. of any sums he might recover for the estate, or, in the event this amount was not paid by the estate, he was to receive a one-half interest in the share of Ida May Collins and her daughter, who, with appellant, Carrie Brant Becht, were residuary legatees.

The appeal was heard on April 5, 1933, at which time the principal controversy related to the ownership of Newfoundland war bonds in 1939, having an aggregate principal value of $18,000. The issue relative to ownership of the Newfoundland war bonds had been previously litigated when Ida May Collins and Mason Brant objected to the final account of the executrix filed March 1, 1930. It was then claimed by the objectors that the bonds belonged to the estate of Martha J. Brant, whereas the executrix claimed ownership individually. At that time the objections were overruled and the account approved. It was also claimed at the hearing on April 5, 1933, that the executrix had failed to account for city bonds, of the city of Benton Harbor, of the value of $3,000. The circuit court ruled adversely to the claims of the executrix and, by order under date of June 19, 1933, required her to account for the Newfoundland war bonds with interest from November 7, 1928, but sustained her contentions as to the ownership of the city bonds.

Thereafter attorney Lamb presented documentary evidence to counsel for the executrix tending strongly to establish that the city bonds belonged to the estate. As a result thereof the executrix was advised to place the bonds to the credit of the estate. A settlement agreement was executed on August 13, 1935, whereby it was stipulated that Carrie Brant Becht was indebted to the estate in the sum of $30,000 and that this amount was by her or her bondsmen to be paid over to the administrator d. b. n. Therefore it appears that $30,000, including interest, had been recovered for the estate through the efforts of Ross H. Lamb.

At the conclusion of the hearing on the appeal from the order of October 14, 1932, it appears from remarks of the court and counsel that little further remained to be done except for the executrix to account for the bonds and divide the residue. Nevertheless, on May 29, 1933, Ida May Collins filed a petition in probate court praying for the removal of her sister, Carrie Brant Becht, as executrix. By order of July 29, 1933, the executrix was removed and Francis J. Miller was appointed administrator d. b. n. with the will annexed. On appeal the circuit court reversed the probate court on the ground that, although there might be cause for the removal of the executrix, it was not advisable, as nothing remained to be done in the estate except to distribute the residue. On March 5, 1934, the probate court ordered the executrix to file an additional bond on or before March 22, 1934, or be removed. The executrix contended that the existing bond was sufficient and failed to comply with the order. She was then removed for the second time by order of the probate court and for the second time Francis J. Miller was appointed administrator d. b. n. with the will annexed. Upon appeal, the circuit court reversed this order, the circuit court being in turn reversed by a decision of this court entered October 23, 1934. Becht v. Hatfield, 269 Mich. 201, 256 N.W. 855.

In 1930, Ida May Collins employed the auditing firm of Evans, Marshall & Pease of Chicago, Ill., to audit the estate of the deceased. The audit also included the estate of Edward Brant, deceased, the husband of Martha J. Brant, for the alleged purpose of determining what assets, if any, passed from the estate of Edward Brant to his wife.

On December 21, 1935, the administrator d. b. n. filed his final account. Objections to numerous items therein were promptly made by Carrie Brant Becht, the appellant. Several of the objections were settled by agreement. The items remaining controverted were the fees of the administrator d. b. n. in the amount of $1,043.23, the same being computed as statutory commissions. Also contested were the attorney fees and expenses of Ross H. Lamb in the amount of $8,049.37. Although not included in the final account of the administrator d. b. n. the fee of the auditing firm in the amount of $865 was allowed as a proper charge by the probate court. The probate court approved the final account. Carrie Brant Becht appealed.

At the hearing before the circuit court on appeal, the administrator d. b. n. waived any claim for compensation based on statutory commissions and it was agreed that his compensation should be computed on the basis of the reasonable value of the services rendered. By order of July 29, 1936, the circuit court affirmed the order of the probate court, and found the reasonable value of the services of the administrator d. b. n. to be $1,043.23, including services rendered to the date of the order.

In opposing the allowance of the fees and expenses of Ross H. Lamb, appellant urges that, from the time Lamb first appeared in the litigation on appeal from the order of the probate court of October 14, 1932, the only question presented was the determination of and distribution of the residue between the residuary legatees, Carrie Brant Becht and Ida May Collins; that therefore the fees and expenses of Lamb were incurred in settling a dispute between individual legatees, a dispute in which the estate was not interested; and that each party should be held to bear their own expenses thereof. It is further contended by the appellant that a contract of employment, either express or implied, is necessary to obligate an estate for such fees and expenses.

We do not question the general proposition asserted by the appellant that an attorney's right to compensation depends upon the existence of a contract, express or implied. In re Faling's Estate, 113 Or. 6, 228 P. 821,231 P. 148;In re Gratton's Estate, 136 Or. 224, 298 P. 231, 79 A.L.R. 517;Chicago, St. C. & M. R. Co., v. Larned, 26 Ill. 218. It is said in 2 R.C.L. 954: ‘The creation of the relation of attorney and client by contract express or implied is essential to the right of the attorney to compensation. * * * The essential feature of the professional relation is the fact of employment to do something in the client's behalf. There must be an agreement express or implied for compensation. * * *’

This proposition has been applied by the courts in cases where one of several interested parties has engaged the services of an attorney. It has been held that the attorney must look to the one who employed him for his compensation, even though the others were incidentally benefited by his services and accepted such benefits. Forman v. Sewerage & Water Board, 119 La. 49, 43 So. 908, 12 Ann.Cas. 773; Chicago, St. C. & M. R. Co., v. Larned, supra.

On the other hand, and although not controlling here, there exists the generally recognized equitable principle that where one, among others, interested in a particular fund, employs an attorney by whose service the fund is enhanced, preserved, or protected, the others entitled to claim in the fund, and so benefited, should share the expenses of such services. Trustees of Internal Improv. Fund v. Greenough, 105 U.S. 527, 26 L.Ed. 1157;Buell v. Kanawha Lumber Corp. (D.C.) 201 F. 762, 769;American Engineering Co. v. Metropolitan By-Products Co. (C.C.A.) 275 F. 40. The following statement of the rule is given in Buell v. Kanawha Lumber Corp., supra: ‘* * * the rule is established that where one goes into a court of equity, and takes the risk of litigation on himself, and successfully creates or preserves or protects a fund to a share in which others are entitled, those others will not be allowed to lie back and...