Doty v. Peters

• Decision Date: 11 July 1958
• Citation: 155 N.E.2d 239,106 Ohio App. 435,7 O.O.2d 181
• Parties: , 7 O.O.2d 181 DOTY, Ex'r, Appellant, v. PETERS, Appellee. Doty, Ex'r, Appellant, v. MARTIN et al., Appellaees.
• Court: Ohio Court of Appeals

Page 435

106 Ohio App. 435

155 N.E.2d 239, 7 O.O.2d 181

DOTY, Ex'r, Appellant, v. PETERS, Appellee.

Doty, Ex'r, Appellant, v. MARTIN et al., Appellaees.

Court of Appeals of Ohio, Madison County.

July 11, 1958.

Syllabus by the Court

1. Where, subsequent to the granting of a decree of divorce to a wife, the wife dies, and, during administration of her estate, the divorced husband files an action to have the divorce decree set aside for alleged irregularities and defects and an action to enjoin distribution under her will, and the executor, at the request of the beneficiaries under the will, undertakes to make a defense in such litigation in their behalf and succeeds in negotiating a settlement, approved by the Probate Court, resulting in dismissal of the suits upon payment of the amount agreed upon out of the general funds of the estate, the beneficiaries agreeing to contribute toward the settlement in proportion to their respective shares of the estate, the beneficiaries are liable to the estate, under express contracts, to pay their respective contributions, and, under implied contracts, to pay the reasonable value of the executor's extraordinary services as an attornety in defending their interests in the litigation and in effecting a settlement.

2. In an action by an executor against the beneficiaries under a will to recover for an estate, as contributions, the amount paid out of general estate funds in settlement of litigation with an adverse claimant and an amount to compensate the executor for the performance of extraordinary services in participating in such litigation and in negotiating a settlement, the executor is a proper party plaintiff.

3. The executor of an estate under administration in the Probate Court is under no obligation to defend litigation which involves only controversies among rival contestants for shares in the estate.

4. Where the executor of an estate under administration in the Probate Court, being under no obligation to participate in litigation involving principally the interests of the beneficiaries under the will, participates in such litigation at the request of such beneficiaries in order to protect their interests, he is entitled to compensation for extraordinary services, and consideration for such agreements consists of performance by the executor of services beyond the scope of his duties as executor.

Jackman, Nichols & Grubbs, London, and Ralph W. Lucas, Columbus, for appellant.

Gilbert Kirby, Lakewood, for appellees.

CRAWFORED, Judge.

These two cases are appealed on questions of law from judgments for the defendants, entered by the Court of Common Pleas upon motions of the defendants at the conclusion of plaintiff's opening statement. Both cases were brought by the same plaintiff, as executor, against different devisees. Each petition contained two causes of action, one upon an express contract, the other for a separte claim upon quantum meruit. By agreement both cases were consolidated for trial by the court, a jury having been waived. The facts in the two cases are similar and the questions identical.

The action of the court in dismissing the two causes of action, the second specifically, and the first indirectly, and entering judgment for the respective defendants, is assigned as error in several respects, which are unnecessary to consider separately.

In the final entry, the court sustained defendants' motions for judgments and granted judgments against the plaintiff and for the defendants 'for the costs.' We gather from the entire record that these are intended to be full, complete and final judgments.

The essential question is whether plaintiff, in his pleading and opening statement, aided by certain stipulations of fact, has set forth causes of action. We must, therefore, accept these facts in determining this question.

Plaintiff, Boyd P. Doty, is executor under the will of Mary S. Lombard, deceased, having been appointed as such by the Probate Court of Madison County. The will of decedent specifically devised one parcel of real estate to the defendant Ann Converse Peters, and another to defendant Helen Martin, and to Frank Martin, now deceased.

After the probate of the will and appointment of the executor, one Eli E. Kimmel, of Los Angeles, California, who was not a beneficiary under the will, appeared on the scene and made an election in the Probate Court to take his rights as surviving spouse under the statute of descent and distribution and contrary to the will.

Kimmel filed an exception to the inventory and appraisement in the Probate Court because of the failure to set off to him as surviving spouse the property exempt from administration. The objection was overruled by the Probate Court. This decision was appealed by Kimmel to the Court of Appeals and to the Supreme Court, the Court of Appeals affirming the decision of the Probate Court, and the Supreme Court overruling a motion to certify the record. Plaintiff was the sole defendant in these proceedings.

Thereafter, Kimmel filed a petition in the Court of Common Pleas of Franklin County, Ohio, Division of Domestic Relations, in the same case wherein the decedent, Mary S. Lombard, had obtained a decree of divorce from him. His petition asked that the divorce decree be vacated and set aside as void for alleged irregularities and defects. In that petition, Kimmel named the plaintiff executor as sole defendant.

Thereafter, Kimmel filed suit in the United States District Court for the Southern District of Ohio, Eastern Division, naming as defendants plaintiff Boyd P. Doty, both as executor and individually, and various legatees and devisees, including the defendants, seeking to enjoin distribution under the will.

Plaintiff advised the defendants of these proceedings, and of his opinion as an attorney and of the opinion of his counsel, after careful investigation of the facts, that there was serious danger that Kimmel might succeed in establishing fatal defects in the divorce decree, and informed them of the grave consequences to all beneficiaries under the will, including the defendant devisees of specific real estate, if Kimmel were successful in thus establishing his status as surviving spouse of Mary A. Lombard, deceased.

Plaintiff further advised defendants and the other beneficiaries under the will that as executor he was only a nominal defendant in these cases and that they themselves were primarily concerned in the litigation and must decide what course to take regarding it.

Plaintiff explained to them that he would not participate in the litigation as fiduciary of the estate against their wishes, but offered, if they so desired, to carry on the litigation in their behalf. The defendants and other beneficiaries expressed their desire that he do so; and he, with the help of counsel retained by him, did undertake their defense, 'on behalf of the estate and said beneficiaries.'

Plaintiff kept all the beneficiaries, including defendants, and their own attorneys, advised of the progress of the Kimmel litigation and the imminent danger of Kimmel being successful because of lack of evidence to combat his contentions. The defendants at no time asked plaintiff to discontinue these efforts in their behalf.

Plaintiff ultimately succeeded in negotiating a settlement with Kimmel, and defendants and other beneficiaries agreed to contribute in proportion to their respective shares of the estate in order to make up the amount of the settlement.

In reliance upon these promises, plaintiff consummated the settlement with Kimmel, advanced the amount out of the general funds of the estate, and thus effected the dismissal with prejudice of the various suits instituted by Kimmel and obtained the release of the devises of the defendants from all claims of or through Kimmel. The compromise was approved by the Probate Court.

Defendants refuse to pay their promised contributions. Such refusal gives rise to the first cause of action.

The second cause of action is for the reasonable value of necessary legal services rendered by the plaintiff and obtained by him in defending against the Kimmel litigation. Defendants were fully advised as to the rendering of such services and of the necessity thereof and that such services were extraordinary and beyond the scope of the duties of plaintiff as executor and beyond the ordinary duties of his counsel. No objection was ever made by the defendants, nor did they indicate in any way that they did not expect to share in this expense.

The reasonable value of these services is alleged. The second cause of action is for defendants' proportionate share of these attorney fees.

Defendants in both cases have moved to dismiss the appeals on the ground that Boyd P. Doty, executor of the estate of Mary S.Lombard, deceased, is not an aggrieved party and that the decision of the trial court is not detrimental to the estate.

As to the first cause of action in each case, it is clearly advantageous to the estate to recover the amount advanced out of the general funds of the estate. As to the second cause of action it is likewise advantageous to fix liability for attorney fees upon the defendants, who contend that nay such obligation rests upon...