Dooley v. Welch

• Decision Date: 30 June 1913
• Parties: SILAS W. DOOLEY, Respondent, v. NELLIE WELCH and DAISY STANLEY, Administratrices de bonis non with the will annexed of the Estate of J. J. RYAN, Deceased, Appellants
• Court: Kansas Court of Appeals

158 S.W. 454

172 Mo.App. 528

SILAS W. DOOLEY, Respondent, v. NELLIE WELCH and DAISY STANLEY, Administratrices de bonis non with the will annexed of the Estate of J. J. RYAN, Deceased, Appellants

Court of Appeals of Missouri, Kansas City

June 30, 1913

Appeal from Bates Circuit Court.--Hon. C. A. Calvird, Judge.

Judgment affirmed.

Thos J. Smith for appellants.

(1) No recovery for services in the assessment case in which appellant was allowed two hundred dollars should have been allowed. There was admittedly no special employment of the plaintiff by defendants, nor directions from defendants to plaintiff to perform this service. The services were of no benefit to the estate, but a positive detriment in costs and expenses. Nichols v. Reyburn, 55 Mo.App. 5; State ex rel. v. Walsh, 67 Mo.App. 353; Grove v Reynolds, 100 Mo.App. 59; Matson & May v Pearson, 121 Mo.App. 138. (2) The facts as to which plaintiff stipulated and on which the assessment case was heard in the United States Court, showed conclusively as a matter of law the defense of that case could not be successful. U. S. Compiled & Annotated Statutes, vol. V, p. 109, sec. 5154; Casey v. Galli, 94 U.S. 673, 24 L.Ed. 168; Bank v. Haskins, 79 Fed. (C. C. A.) 51; Keyser v. Hitz, 133 U.S. 150, 33 L.Ed. 531, 536; Pauly v. Land & Trust Co., 165 U.S. 622, 41 L.Ed. 850. (3) The plaintiff was required to know the settled rule of law governing the powers of State banks to be converted to national bank under the National Banking Act and the consequent liability of its shareholders for double assessment thereon. 3 Am. & Eng. Ency. Law (2 Ed.), p. 380; 4 Cyc. 964, 965; Goodman v. Walker, 30 Ala. 482; s. c., 68 Am. Dec. 134, 138; Loan & Fund Assn. v. Friedley, 123 Ind. 143; s. c., 23 N.E. 1075, 7 L. R. A. 669, 670. (4) If the plaintiff failed in this, his lack of professional knowledge, skill or diligence may be set up as a defense to his action to recover for the services rendered. Bracey v. Carter. 12 Am. & Eng. Ency. Law, 373; Bowman v. Tallman, 40 How. Pr. 1; Hopping v. Quin, 12 Wend. 517; Roe v. Stanton, 7 Grant, Ch. (U. C.) 389.

Silas W. Dooley for respondent.

(1) The court should affirm this judgment--because appellant's abstract of the record shows that it does not contain all the evidence adduced at the trial. Henri v. Grand Lodge, 59 Mo. 581. (2) Appellant's abstract is merely an abbreviated narrative of the evidence favorable to their contention as shown in respondent's abstract; it also omits most of the exhibits in evidence, all necessary for a correct understanding of the issues and the findings of the court. Zweigardt v. Birdseye, 51 Mo.App. 462; Nelson v. Hall, 104 Mo.App. 466; Drug Co. v. Saunders, 70 Mo.App. 221.

OPINION

JOHNSON, J.

Plaintiff, an attorney at law, sued the defendants administratrices in equity to enforce a demand for fees earned in the service of the estate and for which it is alleged the estate is liable as for expenses of administration. The demand consists of fifty-two items aggregating $ 2593.52, and credits amounting to $ 1085 are acknowledged in the petition, reducing the alleged indebtedness to $ 1508.52, for which plaintiff prays judgment and that the judgment be classified as an expense of administration. The answer interposes a number of defenses, the nature of which will be disclosed in the statement and opinion. The court rendered a decree which included a complete finding of facts and resolved the issues of law and fact in favor of plaintiff but reduced the total net demand from $ 1508.52 to $ 825.52. It was further adjudged "that the defendants pay to the plaintiff out of any funds now in their hands, or that may hereafter come into their hands, belonging to the funds of said estate of J. J. Ryan, deceased, the sum of eight hundred eight and 52/100 dollars with interest at six per cent from 1910, and cost of suit, to be charged to the estate, and paid for as a part of the expense of the administration thereof." Defendants appealed.

In July, 1898, J. J. Ryan died testate in Bates county, leaving as his heirs his widowed daughters, Mrs. Caroline Morrison and Mrs. Sarah Adaline Stanley and his adult grandchildren, W. R. Morrison, J. R. Morrison, Nellie Welch, John L. Stanley and Daisy Stanley. The estate consisted of stocks in banks and corporations, secured and unsecured notes and other evidences of debt of the estimated value of $ 80,000. The will was probated in Bates county August 16, 1898, and F. J. Tygard, J. C. Clark and the testator's grandson, Joseph R. Morrison, were appointed executors. They gave a bond in the sum of $ 50,000 and acted as executors until February, 1907, when they were removed and P. H. Holcomb was appointed administrator de bonis non with the will annexed. Two months later Holcomb was removed and defendants Nellie E. Welch and Daisy Stanley were appointed administratrices de bonis non with the will annexed. They qualified and took charge of the estate and are still the administratrices thereof. The evidence supports the finding of the court "that when said estate was turned over to the defendants as administratrices it was in a confused condition and subject to considerable litigation and in need of legal services and advice for the preservation and protection of its rights, property and funds."

The executors Tygard, Clark and Morrison had been removed for mismanagement and had left the affairs of the estate in a tangled condition. At the death of Ryan they were respectively president, cashier and bookkeeper of the Bates County Bank, a State bank in which Ryan held thirty-four shares of stock of the par value of $ 100 per share. Sometime after the death of Ryan and during the period of their executorship, they caused the bank to be reincorporated as a national bank. Shortly before their removal as executors the bank failed and its assets passed into the hands of a receiver. Neither of the administratrices lived in Bates county during the present administration of the Ryan estate. Mrs. Welch has lived in Kansas City and Daisey Stanley has resided in St. Louis a part of the time and in Louisiana the remainder. Plaintiff is a lawyer residing and practicing in Bates county.

We approve the finding of the court "that at or about the time of the appointment and qualification of the defendants as administratrices of said Ryan estate they employed plaintiff to advise and render such legal services as might be required in the administering of the affairs of said estate under said will, and for that purpose all the papers belonging to said estate were placed in his charge; that plaintiff continued in such service from the day of April, 1907, to the day of April, 1910, when he was discharged therefrom by the defendants without any fault or dereliction of duty on his part having been assigned therefor, and all the papers of said estate in his charge were delivered to the defendants at their request."

Counsel for defendants contend that plaintiff was employed not by the administratrices to act as the general attorney of the estate but by Daisy Stanley as her attorney but we think the weight of the evidence supports the finding of the court to the contrary and also the further finding "that plaintiff's employment was general in its nature; that there were no specific instructions from the defendants personally in regard to the items set out in plaintiff's account . . . but the court finds that said services were rendered in the usual course of plaintiff's employment and defendants, either themselves or through their advisers had knowledge of the same. The court further finds that defendant had knowledge of the trips made by plaintiff in said suits prior to April 5, 1909, as the service was set out in plaintiff's bill for expenses of each trip, and defendants paid the same without protest or claim that the service mentioned or the expense therefor was not beneficial or not necessary for the protection of the funds of said estate."

When the Bates County Bank was converted into a national bank the executors of the Ryan estate who, as stated, were managing officers of the bank, caused the thirty-four shares of stock owned by the estate to be converted into a similar number of shares in the national bank and the estate appeared on the books of the bank as the owner of said stock when the receiver took charge of its assets. The stock had been fully paid and had the business been continued as a State bank there would have been no stockholders' liability but if, in fact and law, the estate had become a stockholder in the national bank, it had incurred a liability on the stock equal to the par value thereof.

The receiver of the bank in March, 1907, while Holcomb was administrator, brought suit in the Federal court at Kansas City against the estate to recover an assessment of $ 3400 on the stock in the bank standing in the name of the estate. The court found "that the circumstances and conditions surrounding the possession of said stock by said estate of said Ryan, when taken in connection with the directions in said will, and the fact that the...