Fletcher v. Coomes
| Decision Date | 06 November 1922 |
| Docket Number | 3765. |
| Citation | 285 F. 893 |
| Parties | FLETCHER v. COOMES et al. [1] |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted October 12, 1922.
Rehearing Denied November 29, 1922.
Appeal from the Supreme Court of the District of Columbia.
Edmond C. Fletcher, of Washington, D.C., for appellant.
George E. Hamilton, John J. Hamilton, Harry A. Grant, Walter C Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D.C., for appellees.
Before SMYTH, Chief Justice, ROBB, Associate Justice, and SMITH Judge of the United States Court of Customs Appeals.
This is an appeal from an order of the Supreme Court of the District of Columbia, dismissing the petition of intervention filed by Edmond C. Fletcher to establish his claim to fees for services rendered by him as attorney in the partition of real estate devised to appellees by the last will and testament of William Pitt Kellogg.
It appears from the record that a memorandum of agreement prepared for the signature of Edmond C. Fletcher, Isaiah S. Coomes, and Arthur K. Coomes, was executed on January 26, 1920, by Edmond C. Fletcher, as party of the first part, and by Isaiah S. Coomes, as party of the second part; Arthur K. Coomes declining to sign it as party of the second part.
The agreement recited, first, that the parties of the second part desired to recover their interest in personal and real estate, either by joining with Sherman Kellogg as plaintiffs in an action to set aside and cancel in whole or in part the will of William Pitt Kellogg, or by instituting and prosecuting some other proceeding; second, that the estate of William Pitt Kellogg was entitled to recover from Mary K. Wills the approximate sum of $8,000, wrongfully paid out of the funds of the said estate by the executor of said last will and testament; third, that said executor was about to claim from said estate the approximate sum of $30,000 as commissions for the administration of the personal property of said estate, and that, unless objections were submitted in writing at the proper time by the parties of the second part, such commissions might be allowed by the probate court; fourth, that it was necessary to authorize the institution and prosecution of an action in the Supreme Court of the District of Columbia in order to effect a sale of the real property referred to in item 5 of the will, and to secure a division of the proceeds arising therefrom among the parties of the second part, and other parties entitled thereto under the will as their interests might appear; fifth, that the net rentals from the real estate collected appeared to be disproportioned to the value of the real estate; sixth, that as many questions of law and fact had arisen and would continue to arise with respect to the estate, it was necessary to employ legal counsel in Washington, with authority to render legal services in said estate for and on behalf of the parties of the second part.
In consideration of these premises the party of the first part was employed, authorized, and appointed by the agreement to render to the parties of the second part, in the prospective controversies and proceedings recited, such legal services as he might find prudent upon the following terms of compensation, to wit: (1) Fifty per cent. of the money or of the value of any property accruing to the parties of the second part as the result of the prosecution by the first party of an action to set aside and cancel the last will and testament of William Pitt Kellogg, or of any other action firmly establishing in the second parties the right to the personal and real property described in item 4 of said will. No compensation whatever was to be paid to the first party for his services in that behalf, in case none of the money or property described in item 4 of the will was adjudged to the second parties and other heirs at law of William Pitt Kellogg; (2) 50 per cent. of any money or the value of any property secured for the executor of the estate of William Pitt Kellogg as the result of the prosecution by the first party of any claim against the estate of Mary E. Kellogg; (3) 20 per cent. of any money or property refunded by Mary K. Wills to said executor as the result of the prosecution of the claim therefor by the party of the first part; (4) 20 per cent. of any money or property saved to said second parties as the result of objections in writing filed by the first party to any claim or charge of the Union Trust Company for commissions for administering the personal property of the estate of William Pitt Kellogg; (5) a cash fee of $240 for instituting and prosecuting an action to effect a sale of the real estate referred to in item 5 of the will, and the distribution of the proceeds of sale to said second parties and the other parties entitled thereto. It was further agreed that the $240 should be refunded to said second parties out of any compensation or trustees' commissions awarded to the first party, in case he was appointed by the court as one of the trustees to effect a judicial sale of such real estate and to make distribution of the proceeds thereof in accordance with the order of the court. No compensation whatever was to be paid by the second parties for any legal services rendered by the first party for the purpose of increasing the net rentals derived from the residuary real estate.
The record does not disclose that any proceedings were ever initiated by the intervener to set aside the will of William Pitt Kellogg, or to recover any moneys paid to Mary K. Wills by the executor out of funds of the estate, or to prosecute any claim against the estate of Mary E. Kellogg. Neither does it appear that any objections were made to commissions claimed for administering the personal property of Kellogg's estate.
Twelve days after entering into the agreement above referred to, the intervener, on behalf of Isaiah S. Coomes, filed a bill of complaint in the Supreme Court of the District of Columbia against the defendants therein named, for the sale by trustee of the various parcels of real estate...
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...Co. v. Lynham, D.C.App., 293 A.2d 481 (1972); Van Senden v. Wilkinson, 64 U.S.App.D.C. 174, 76 F.2d 151 (1935); Fletcher v. Coomes, 52 U.S.App.D.C. 159, 285 F. 893 (1922). Nor are we faced with a situation where a plaintiff is claiming as damages in a breach situation the litigation expense......
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...described, an implied covenant to compensate for the reasonable value of an attorney's services. 23 Cf. Fletcher v. Coomes, 52 App.D.C. 159, 163, 285 F. 893, 897 (1922), cert. denied, 261 U.S. 619, 43 S.Ct. 363, 67 L.Ed. 830 (1923); Thomas v. Peyser, 73 App.D.C. 155, 158-160, 118 F.2d 369, ......
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