First Trust Co. v. Myers
| Decision Date | 02 April 1945 |
| Citation | 188 S.W.2d 519,239 Mo.App. 403 |
| Parties | The First Trust Company and Pete Hedgpeth, Executors of the Will and Estate of Willis G. Brinson, Deceased, and Pete Hedgpeth, v. Harry E. Myers, Pearl Shaffer, sometimes known as Mrs. George Shaffer, Harriett Criswell, sometimes known as Mrs. Charles Criswell, Marvin B. F. Myers and Gordon Frank Lyon, Donald James Lyon, Wallace Lee Lyon and Frank M. Brinson |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County; Hon. Sam Wilcox Judge.
Reversed.
W M. Morton for appellants.
(1) The defendants in a suit brought solely to construe the language of a Will are not entitled to an allowance by the court for the fees paid to the attorneys hired by such defendants to represent their interests. Littleton v. General American Life Insurance Company, 136 S.W.2d 433, l. c. 440; Hartnett v. Langan, 282 Mo. 471, l. c. 490, 222 S.W 403, dictum; Drake v. Crane, 66 Mo.App. 495; 69 C. J., p. 905, Sec. 2072; In re Donges Estate, 103 Wis. 497, 79 N.W. 786; Ensley et al. v. Ensley et al., 105 Tenn. 107, 58 S.W. 288; Urey's Admr' et al. v. Urey's Ex'x et al., 86 Ky. 354, 5 S.W. 859. (2) The only cases in which Missouri courts give consideration to claims of defendants for allowances to cover their attorneys' fees, are in cases involving trust funds or trust property or rights therein, or the recovery or protection thereof, and in which cases the court has the actual property or fund before it in the proceeding in which the allowance is made. Robinson v. Dundee Land and Inv. Co., 80 Mo.App. 621; City of St. Louis, Trustee for Mullanphy, v. McAllister, 302 Mo. 152, 257 S.W. 425; St. Louis Union Trust Company v. Kern, 346 Mo. 643, 142 S.W.2d 493; White v. University City Land Company, 49 Mo.App. 450. (3) Even if an allowance for defendants' attorneys' fees was proper in the present case, the allowance can only be made by the court to defendants themselves and the court has no authority to make any allowance to the attorneys. Trautz v. Lemp, 334 Mo. 1085, l. c. 1100, 72 S.W.2d 104, l. c. 111; 69 C. J., p. 908, Sec. 2076; Montgomery et al. v. Dime Savings and Trust Company et al., 214 Ill.App. 553, 125 N.E. 309. (4) Even if an allowance for defendants' attorneys' fees was proper in the present case, the allowance can only be made by the court in such amount as the defendants are liable for to their attorneys under their contract of employment. Trautz v. Lemp, 334 Mo. 1085, l. c. 1100, 72 S.W.2d 104, l. c. 111. (5) The Circuit Court of Buchanan County had no original jurisdiction to order an allowance for attorneys' services rendered for the benefit of the estate to be paid by the Executor out of such estate while it is being administered in the Probate Court of such county. Scott v. Royston, 223 Mo. 568, 123 S.W. 454; Seibert v. Harden, 319 Mo. 1105, 8 S.W.2d 905.
Groves & Watkins, Fred M. Wanger, and O. W. Watkins, Jr., for respondents.
Thomas E. Atkinson of counsel.
(1) The appeal should be dismissed as the executors, appellants here, are not persons aggrieved by the order of the Court, and this Court, therefore, has no jurisdiction to hear the appeal. R. S. Mo. 1939, Sec. 1184 ; Love v. White, 348 Mo. 640, 154 S.W.2d 759, l. c. 760; In re Curtis' Estate (First National Bank of Colorado Springs v. Strickler et al.), 103 Colo. 361, 86 P.2d 260. (2) Where a testator has expressed himself so ambiguously as to make it necessary to institute a suit in equity for construction of the will, reasonable attorneys' fees of all parties defendant may be allowed out of the estate. Kingston v. St. Louis Union Trust Company, 348 Mo. 448, 154 S.W.2d 39; St. Louis, Trustee for Mullanphy, v. McAllister, 302 Mo. 152, l. c. 158, 257 S.W. 425, l. c. 426; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104; Sandusky v. Sandusky, 265 Mo. 219, l. c. 235, 177 S.W. 390, l. c. 394; Neff v. Neff, 13 Ohio Decisions, Reprint, 287, 2 Disn. 468; In re Curtis' Estate (First National Bank of Colorado Springs v. Strickler et al.), 103 Colo. 361, 86 P.2d 260; Beer v. Squires, 102 Conn. 503, 129 A. 382; First National Bank v. Cleveland Trust Company, 308 Ill.App. 639, 32 N.E.2d 964; Kendall v. Taylor, 245 Ill. 617, 92 N.E. 562; Woman's Union Missionary Society v. Mead, 131 Ill. 338, 23 N.E. 603; Singer v. Taylor, 91 Kan. 190, 137 P. 931; Morse v. Stearns, 131 Mass. 389; Straw v. East Maine Conference, 67 Me. 493; Cross v. French, 119 N.J.Eq. 563, 182 A. 834; Jacobus v. Jacobus, 20 N.J.Eq. 49; 2 Perry on Trusts, Fifth Edition, Sec. 903, p. 604. (3) There is no distinction between the cases in which the Missouri courts have made allowances and the instant case on the basis that the cases where the allowances have been sustained involve trust funds wherein the actual property or fund was before the Court. Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390. (4) The question of whether or not the trial court made the allowance to the proper parties is not before this court, because it was not covered in appellants' motion for a new trial. In any event, the allowance of the trial court was proper. Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104. (5) The order of the trial court making the allowance of fees was for a proper amount. Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104; Kingston v. St. Louis Union Trust Company, 348 Mo. 448, 154 S.W.2d 39; St. Louis, Trustee for Mullanphy, v. McAllister, 302 Mo. 152, 257 S.W. 425.
This is an appeal by the executors of the estate of Willis G. Brinson, deceased, from an order sustaining a motion filed by Harry E. Myers, Pearl Shaffer, Harriett Criswell, and Marvin B. F. Myers, wherein they sought an allowance of attorneys' fees to their attorneys, Groves & Watkins, O. W. Watkins, Jr., Fred M. Wanger, and Thomas E. Atkinson.
This allowance of fees who made in a suit brought by The First Trust Company and Pete Hedgpeth, executors of the will of Willis G. Brinson, deceased, and by Pete Hedgpeth, in his individual capacity, for the construction of the will of Willis G. Brinson. The attorneys securing the allowance of fees here complained of represented certain of the legatees named in the will, they and others being defendants in the will construction suit. They contended, unsuccessfully, for a construction of the will that would have given their clients a greater distributive share of the testator's estate than that which they received. The appellants, who were plaintiffs in said will construction suit, have appealed from the allowance of such attorneys' fees and contend that such allowance is improper and unlawful.
Willis G. Brinson died April 5, 1940. His will was duly probated and the appellants were duly qualified as executors. The will contained the following language:
All of testator's heirs named in his will survived him except Frank Lyon who died sometime prior to testator's death leaving three children who were also named as defendants in the will construction suit. The questions raised by plaintiffs were:
First, do the legatees named in the will take equally, share and share alike, or do they take as heirs would take according to statutes of descent of Missouri; and, Second, do the children of Frank Lyon take anything?
Groves & Watkins, O. W. Watkins, Jr., and Fred M. Wanger filed answer for Harry E. Myers, Pearl Shaffer, Mrs. Criswell and Marvin B. F. Myers, heirs of the half blood of testator, alleging that their clients, who were the only surviving children of Mamie Lyon Myers, a sister of the half blood of the testator, share equally with all other legatees named by the testator. It was contended that each of said legatees so named took a one-sixth interest in said estate. Pete Hedgpeth, a nephew of the half blood of testator, and Frank Brinson, a brother of the whole blood, contended that the legatees named took, under the will, the same share of said estate that they would have taken as heirs under the statutes. Frank Lyon died prior to testator's death and his children contended that they took, under the will, the same share that they could have taken as heirs at law if Willis Brinson had died intestate. The case was tried in the Circuit Court and appealed to the Supreme Court where it was argued before Division No. 1, then before the court en banc and, on disqualification of one of the judges, it was again argued before the court en banc. There is no question but that the will is ambiguous and court construction was a necessity.
Since the children of Frank Lyon are not parties to this appeal we shall, hereafter, refer to the executors as appellants and to the defendants who filed this motion as respondents. Respondents sought an allowance of $ 3,000 and the court allowed $ 1658.52.
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