Creech v. Young

• Decision Date: 15 April 1902
• Parties: BREVATOR CREECH et al., Appellants (LIZZIE BREVATOR, Plaintiff), v. WILLIAM R. YOUNG, Admr., Defendant, Respondent
• Court: Missouri Court of Appeals

67 S.W. 963

94 Mo.App. 90

BREVATOR CREECH et al., Appellants (LIZZIE BREVATOR, Plaintiff), v. WILLIAM R. YOUNG, Admr., Defendant, Respondent

Court of Appeals of Missouri, St. Louis

April 15, 1902

Appeal from Lincoln Circuit Court.--Hon. Elliott M. Hughes, Judge.

APPEAL DISMISSED.

Martin & Woolfolk for appellants.

(1) The appointment of an administrator ad litem is proper in a suit against an estate whenever from any cause the legally appointed administrator can not properly represent the estate. Woerner's Adm. Law. (2 Ed.), 406 and 407; 2 Am. and Eng. Ency. of Law (2 Ed.), 804, and cases cited. And it is the duty of the court in which the suit is pending to make the appointment in a proper case upon the application of an interested party. Wolff v. Eberlein, 74 Ala. 94; 2 Am. and Eng. Ency. of Law (2 Ed.), 809, and cases cited Woerner's Adm. Law (2 Ed.), 821 and 822, and cases. (2) The defendant's relation to the attorneys for plaintiff renders his control and management of the defense in this suit improper. Spinks v. Davis, 32 Miss. 155; Cox v. Barnes, 63 N.W. 394; Denning v Todd, 91 Tenn. 422; Simpson v. Jones, 82 N Car. 323; In re Mills, 22 Oregon 210; Kellberg's Appeal, 86 Pa. St. 129; Thayer v. Horner, 11 Neil (Mass.) 104; State v. Rainhardt, 31 Mo. 95. (3) His relations to the beneficiaries are not harmonious. Picking's Estate, 3 Pa. Dis. Rep. 454; Dayton's Estate, 1 Kulp (Pa.) 118; Pike's Estate, 45 Wis. 391. (4) He can not act with that fidelity and good faith in the defense of the suit that his duty as trustee requires. Powell v. Hurt, 31 Mo.App. 632; State ex rel. v Meagher, 44 Mo. 356; Foster v. Davis, 46 Mo. 268; Myer v. Myer, 98 Mo. 262; Merritt v. Merritt, 62 Mo. 150; Allerberry v. McDuffee, 31 Mo.App. 603; Booker v. Armstrong, 93 Mo. 49.

Wheeler & Powell for respondent.

There is nothing whatever that shows or tends to show that the estate is not being properly looked after. This claim has been "scrutinized rigidly, its justness investigated, and it is being defended upon every ground available--limitation, illegality, want of consideration and every other bar which was sufficient at law or equity." Nothing was left undone that could be done.

BLAND, P. J. Barclay and Goode, JJ., concur.

OPINION

BLAND, P. J.

Briefly stated, the facts in this case are that William R. Young is the administrator of the estate of Catherine Hedges, deceased. He is also an attorney at law and a member of the law firm of Norton, Avery & Young. Lizzie Brevator, one of the heirs of Catherine Hedges, sued Young, as administrator, to recover of the estate four thousand dollars, alleged to be due to her from the estate. The heirs of Catherine Hedges, other than Lizzie Brevator, undertook to assist the administrator in the defense of the suit. Norton & Avery were the attorneys of Lizzie Brevator and brought the suit for her. Wheeler & Powell, attorneys, were employed by Young to represent the estate. Martin & Woolfolk had been employed to represent the other heirs in a former suit brought by Lizzie Brevator against them and Young for the specific performance of a contract to convey real estate. Wheeler & Powell who prepared the answer in the four-thousand-dollar suit, supposing that Martin & Woolfolk were to continue to represent the heirs other than Lizzie Brevator, signed their names and the names of Martin & Woolfolk to the answer as attorneys for defendant, Young. This seems to have been a mistake as, on discovering that their names were signed as attorneys to the answer, Martin & Woolfolk withdrew from the case and on the same day, at the instance of Brevator Creech and Clay Wise, two of the heirs of Catherine Hedges, filed the following motion:

"Now come Brevator Creech and Clay Wise and show to the court that they are interested in and affected by all claims and demands allowed against the estate of Catherine Hedges. That this is a suit for the allowance of a claim of $ 4,000 against said estate. That Brevator Creech, as one of the heirs of said Catherine Hedges, is entitled to one-third of her estate subject to the payment of debts and demands allowed, and that Clay Wise and his minor brothers and sisters are heirs of said Catherine Hedges and entitled to one-third of her estate subject to the payment of allowed debts and demands. They further show to the court that this suit was commenced and is being prosecuted by the plaintiff against William R. Young who is the administrator of the estate of Catherine Hedges. That plaintiff...