First Nat'l Bank & Trust Co. v. Bassett

Citation83 P.2d 837,183 Okla. 592,1938 OK 461
Decision Date27 September 1938
Docket NumberCase Number: 28440
CourtSupreme Court of Oklahoma
PartiesFIRST NATIONAL BANK & TRUST CO. v. BASSETT
Syllabus

1. GUARDIAN AND WARD - Contract of Guardian With Attorney for Recovery of Lands Binding on Ward's Estate.

Where the guardian of an Indian minor makes a contingent contract with an attorney to handle litigation for the recovery of valuable lands for ward's estate, the contract being approved by the county court and such services are necessary and beneficial, the contract is valid and binding upon the ward's estate.

2. ATTORNEY AND CLIENT - Limitation of Actions - Action for Fees for Services Rendered Under Contingent Fee Contract Before Discharge - Recovery Upon Quantum Meruit Basis Though Right to Collect Did not Accrue Until Recovery in Main Litigation.

Where an attorney sues for fees for services rendered under a contingent fee contract before his discharge, his recovery is determinable upon the basis of quantum meruit, although his right to collect on the contract did not accrue until the recovery, upon which his fee was contingent, was had.

3. SAME - Attorney's Right of Action Accrues When Main Litigation Finally Determined.

Under such contract an attorney's right of action accrues, not at the time of his discharge, but when the litigation under which his claim arose is finally determined.

Appeal from District Court, Tulsa County; Harry L.S. Halley, Judge.

Petition by Shell S. Bassett, asking order directing payment of attorney's fee by the First National Bank & Trust Company of Tulsa, as guardian of Millie Naharkey, an incompetent. From judgment of district court, on appeal, in favor of claimant, the guardian appeals. Affirmed.

Everett Petry, for plaintiff in error.

Edward P. Marshall and J.J.D. Cobb, for defendant in error.

CORN, J.

¶0 This is an appeal from an order and judgment of the district court of Tulsa county, made in the exercise of its appellate jurisdiction, allowing defendant in error's claim for compensation as attorney for a former guardian of an Indian minor. Hereafter the parties will be referred to as "claimant" and "guardian."

¶1 In November, 1912, S.B. Nelson was appointed guardian of Millie Naharkey, a Creek minor, who reached majority June 13, 1922. Five days prior to her becoming of age, Nelson, with the approval of the county court, entered into a written contract with claimant, employing him to prosecute whatever suits might be necessary to recover the ward's interest in some valuable land. The contract specified claimant was to receive 50 per cent. of any land or money recovered, if and when the recovery should finally be determined. Claimant filed five actions before Nelson was discharged from his guardianship. Upon becoming of age the ward filed dismissals of the actions instituted by claimant, but claimant secured an order from the court appointing him guardian ad litem, set aside the dismissals and continued, but filed no claim with Nelson before his discharge.

¶2 In September, 1922, one Deichman was appointed guardian, and claimant continued to prosecute the claims. Deichman resigned, but claimant presented no claim for his services.

¶3 The Title Guaranty & Trust Company was appointed guardian and employed other attorneys, authorizing them to continue prosecution of the suits. County court refused claimant's application that guardian be ordered to continue employing him, and May 15, 1924, claimant entered his withdrawal. In May, 1937, a recovery of some $53,000 was finally had, and the latter attorneys were paid over $11,000. During this litigation the First National Bank & Trust Company had been appointed guardian, and is still acting.

¶4 May 27, 1937, claimant filed his petition in the county court, asking an order directing present guardian to pay him the fair and reasonable value of his services under the contract made with Nelson. The court refused this claim, and claimant appealed to the district court, where judgment of the county court was reversed and the guardian ordered to pay claimant $2,500.

¶5 The present guardian seeks reversal of this judgment upon the grounds: (1) County court had no jurisdiction in present guardianship proceedings to hear and determine the claim, hence the district court could not exercise probate jurisdiction on appeal; (2) the judgment of the court is contrary to law; (3) the judgment is not supported by sufficient evidence and is contrary to the evidence; (4) claimant's cause of action was barred by statute of limitation; (5) the court erred in admission of testimony as to the reasonable value of claimant's services.

¶6 Particular attention will be directed toward propositions (1) and (4), since these two questions are decisive of the matter now on appeal.

¶7 The first argument advanced by the guardian is the claim that the court was without jurisdiction in the present guardianship proceeding to consider this claim, inasmuch as the county court's supervisory authority does not extend to the determination of litigated claims arising out of transactions with the ward or a former guardian antedating the appointment of the guardian against whom the order of allowance is sought.

¶8 The contract here was expressly for the ward's benefit, to recover certain valuable land, and was approved by the county court. There can be no question but that contracts made for the benefit of the ward's estate and approved by the proper court are enforceable. The guardian's argument is that Nelson could not have created a future liability upon the ward's estate, and that this contract of employment created no legal liability, but bound Nelson, as guardian, personally.

¶9 In support of this argument the guardian cites Jones v. Johnson, 72 Okla. 134, 178 P. 984, holding that guardian's contract is binding upon himself and not the ward's estate; and Morton v. Thomason, 146 Okla 255, 293 P. 1005, holding that guardian cannot, in order to secure funds with which to press a claim for inherited lands of the ward, enter into a contract with a third party whereby the lands recovered shall be impressed with a lien in favor of such third party to secure repayment of such funds.

¶10 However, we do not consider the cited cases applicable because of the different situation. Here, by the terms of the contract, the ward's estate was impressed with no liability whatever, unless and until a recovery was had. The contract was exclusively for the benefit of the ward, and any liability against her estate was wholly contingent upon there being a recovery in her favor. Her estate was neither increased nor lessened by the contract, but remained the same at all times until the conclusion of the litigation.

¶11 In Bancroft's Probate Practice, vol. 4, sec. 1334, p. 2153, it is said:

"Ordinarily a guardian who employs an attorney on behalf of his ward's estate is regarded as the client, and is primarily obligated to pay the attorney's fees. If the services are necessary and beneficial to the estate and the charge is reasonable and just, the guardian is entitled to credit therefor in his account, or, in a proper case, the attorney may be entitled to recover against the ward, if his employment was ordered or sanctioned by the court. So it has been held that where there was no intention on the part of the attorney to look to the guardian for compensation, nor on the part of the guardian to become personally liable therefor, the ward's estate should be charged with such compensation."

¶12 Section 1397 of the same text states further:

"The allowance of attorney's fees is dependent upon the circumstances. Such fees are allowable out of the ward's estate upon the theory that the services were necessary and beneficial to the estate. If the services were necessary, the court should allow just and reasonable compensation."

¶13 In the early case of Parnell v. Wadlington, 42 Okla. 363, 139 P. 121, this court committed itself to the rule that a guardian can bind the estate of a minor, with approval of the proper court, when such services are necessary and beneficial to the estate. See, also, Talomase v....

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