Cowie v. Strohmeyer (In re Rice's Estate)
| Decision Date | 08 October 1912 |
| Parties | IN RE RICE'S ESTATE. COWIE ET AL. v. STROHMEYER ET AL. |
| Court | Wisconsin Supreme Court |
On motion for modification of mandate. Granted.
For former opinion, see 136 N. W. 956.
A motion was made by the attorney for the prevailing parties for a modification of the mandate so as to permit the custodian of the trust property to pay such attorney such reasonable compensation for his services in conserving the interests of the cestuis que trust as, to the court, might seem just, and for such further order as to the court might seem just and proper. The motion was supported by affidavit of the attorney to the effect that the F. G. Cowie mentioned in the decision, pretending to hold written authority from the beneficiaries, employed such attorney to commence the proceedings to recover into the estate the moneys which had been wrongfully diverted therefrom, on a contingent fee of 25 per cent.; that pursuant thereto he rendered the services which resulted in restoration of the trust fund, as indicated in the opinion on file, and that in the situation of the case there is no one authorized to pay for such services out of the trust fund, except upon judicial direction, and that in no other way can he obtain compensation for his valuable services than by burdening such fund therewith.
On the hearing, it was disclosed that F. G. Cowie, after all the transactions had occurred which led to the appeal to the circuit court, in form, obtained a power of attorney to proceed in his discretion to recover any money which had been paid improperly out of the trust fund, he to have 50 per cent. of the amount recovered; and pursuant thereto that he farmed out the work to the attorney for one-half such contingent compensation.
The motion was opposed by affidavit, joining issue with some of the allegations of the affidavit in support of the motion and stating that there are facts existing showing the transactions of said Cowie with the beneficiaries, or some of them, in respect to the matter to have been unauthorized and be unconscionable.
In presenting the motion the specific relief requested was departed from. A copy of the written contract between F. G. Cowie and the attorney was produced, reciting that the former held written authority from the beneficiaries to recover to the estate and the heirs moneys and property supposed to rightfully belong to said estate and said heirs, and which had been wrongfully diverted, and that pursuant thereto, on behalf of himself and the beneficiaries, he employed the attorney to take steps therefor upon a contingent fee of 25 per cent. of the gross amount recovered. Upon the case thus made the court was requested to modify the mandate so as to authorize the trustee to carry out such contract.MARSHALL, J. (after stating the facts as above).
Perhaps the less said, in addition to what appears in the opinion respecting the events leading up to presentation of the history of the Rice estate the second time in circuit court, the better. Enough appears in the opinion on file to indicate that the contract whereby F. G. Cowie sought to acquire a large portion of the trust estate and farm out one-half of such portion to Mr. Armin, forms no legitimate basis for a charge upon the trust fund in favor of the latter. Neither the cestuis que trust nor any one else could properly destroy the trust created by Dr. Rice in that way any more than by the ways previously attempted. Plainly, the contract did not contemplate restoration of the legitimate trust but execution of the illegitimate disposition of the property, only contesting the manner of the execution in county court. It had no greater dignity as to Armin, if even that, than the transaction condemned in the opinion.
[1] Notwithstanding the foregoing Mr. Armin commenced and conducted the proceedings which, eventually, came to the form of an action to restore the trust created by Dr. Rice and was, in form at least, and in fact, so far as possible, successful. He was not concerned in any of the transactions which made the appeal from county court necessary. He was recognized from the time the appeal was taken till the final termination of the matter in this court as the representative of the beneficiaries to secure such relief as they were entitled to. He became, in the course of events, in effect, the representative of the trust estate to secure its restoration, the same as if he had been employed by the trustee. He acted as efficiently as if he had received such employment by authorization of the court having jurisdiction of supervising the execution of the trust. The fact that the result of the litigation was much more far-reaching than was expected, even by the...
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