Cambron v. Pottinger

• Decision Date: 29 April 1949
• Citation: 310 Ky. 70
• Parties: Cambron v. Pottinger et al.
• Court: United States State Supreme Court — District of Kentucky

310 Ky. 70

Cambron v. Pottinger et al.

Court of Appeals of Kentucky.

December 3, 1948.

Rehearing denied April 29, 1949.

Attorney and Client. — A plaintiff, in action involving settlement of a decedent's estate, wherein plaintiff's sole effort was to deprive heirs of wife of decedent of any interest in estate and to obtain entire estate for heirs of decedent, was not entitled to have attorney's fee charged against estate on ground that action was prosecuted by plaintiff for common benefit of himself and other heirs of decedent, where substantially all heirs of decedent were represented by counsel of their own selection. KRS 412.070.

Appeal from Union Circuit Court.

Jos. W. Cambron for appellant.

Harris & Drury for appellees.

Before M.L. Blackwell, Judge.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

This is an appeal from an order of the Union Circuit Court denying the appellant, Joseph W. Cambron, a fee for services claimed to have been rendered by him in certain litigation involving the settlement of the estate of his great-uncle, W.T. Wathen, deceased. Appellant has filed a brief, two additional briefs, and two reply briefs. It is his contention that he performed services beneficial to the estate and, therefore, is entitled to a fee to be charged against the general fund.

A proper understanding of the issue requires a brief history of the case. W.T. Wathen, when about 62 years of age, married Miss Mayme Pottinger. They had no children, and on March 3, 1931, when he was 81 years of age, all of his real estate, consisting of a 281-acre farm in Union County and a house and lot in Morganfield, was conveyed to a trustee who immediately conveyed it to Mr. and Mrs. Wathen to be held by them as joint tenants, and upon the death of one the whole was to go to the other for his or her natural life and upon the death of the survivor one-half of the property was to go to the heirs of Mr. Wathen and one-half to the heirs of Mrs. Wathen. By a writing executed on the same day, a like disposition was made of Mr. Wathen's personal property. On February 16, 1934, Mr. Wathen executed a will which gave all of his property, real and personal, to his wife for life, and at her death, after the payment of a specific bequest of $1,000 to St. Anne's Church, one-half of the remainder to his heirs and one-half to the heirs of his wife. He had purchased a lot in Morganfield subsequent to the execution of the deed on March 3, 1931. W.T. Wathen died in 1935, and a contest of the will was instituted by some of the Wathen heirs, but the will was sustained by a jury verdict. Mrs. Wathen died in 1944, leaving a will substantially the same as her deceased husband's will, and L.P. Clements qualified as the administrator with the will annexed of her estate. L.P. Clements had qualified and was acting as the administrator with the will annexed of W.T. Wathen's estate. Mrs. Wathen left four heirs; a sister, two nephews, and a niece. Mr. Wathen left more than sixty heirs, consisting of nephews, nieces, great-nephews, and great-nieces, many of whom were nonresidents of Kentucky. On March 29, 1945, the four Pottinger heirs and L.P. Clements, administrator with the will annexed of the two decedents, brought an action for the sale of the real estate on the ground of indivisibility, for an interpretation of the will, deeds, and contracts referred to in the petition, and a determination of the heirs and the respective shares to which they were entitled. The W.T. Wathen heirs were named defendants. On April 25, 1945, Joseph W. Cambron, the appellant herein, brought an independent action in which he asked that the deed of March 3, 1931, be canceled; that the will of W.T. Wathen be construed; that the Wathen heirs be adjudged the owners of all the property, real and personal; and that the heirs of Mrs. Wathen be adjudged to have no interest in the estate of W.T. Wathen. He named as defendants the four heirs of Mrs. Wathen, L.P. Clements, administrator with the will annexed of W.T. Wathen, deceased, and Rt. Rev. John A. Floersch, Bishop of the Louisville Diocese of the Roman Catholic Church. He named as plaintiff "Joseph W. Cambron, who sues for himself as an heir and individually, and for the use and benefits of all other individuals or heirs who are similarly situated." The court, apparently on its own motion, consolidated this action with the pending action filed by Mrs. Wathen's heirs and the administrator. On September 13, 1945, an intervening petition was filed by a large majority of the W.T. Wathen heirs in which the intervenors, in effect, adopted the allegations of the petition of Mrs. Wathen's heirs, and asked that the property be sold and the proceeds divided among the two sets of heirs. The intervenors were represented by King & Fluornoy, a firm of attorneys in Morganfield. The administrator and the heirs of Mrs. Wathen were represented by the firm of Harris & Drury. It appears that all of the W.T. Wathen heirs except nine were...