Glidden v. Cowen

• Decision Date: 02 June 1903
• Docket Number: 1,074.
• Citation: 123 F. 48
• Parties: GLIDDEN v. COWEN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

123 F. 48

GLIDDEN v. COWEN et al.

No. 1,074.

United States Court of Appeals, Sixth Circuit.

June 2, 1903

Thomas B. Paxton, for appellant.

Joseph Wilby, for appellee Charles L. Spencer.

Martin M. Durrett, for appellee H. P. Whittaker.

Charles H. Stephens, for other appellees.

Appeal from the Circuit Court of the United States for the Eastern District of Kentucky.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

This is an appeal from a decree of the Circuit Court in the case of Cowen et al. v. Adams et al., fixing and awarding the compensation to be allowed out of the fund recovered in that case, and remaining in the registry, to the several counsel who had been in the service of the complainants anterior to and during the progress of, the litigation in that case which terminated in the recovery. litigation in that case which terminated in the recovery.

Briefly stated, the history of the case is this: William Means having become insolvent and claiming an interest as a beneficiary in the estate of his father, Thomas W. Means made an agreement about the year 1890 with his wife and daughters to assign and convey to trustees for them his interest in said estate. Failing to do this, the wife and daughters instituted a suit against him in the court of common pleas for Greene county, Ohio, for the enforcement of his agreement. Such proceedings were had in that suit that the plaintiffs therein in May, 1891, were awarded a decree whereby the said interest of William Means became vested in trustees, Cowen, Williams, and Frazier, for the benefit of the plaintiffs, the wife and daughters. The administrators of the estate of Thomas Means rejected the claim of William Means to share in the estate of his father, and refused to recognize the right of the trustees to share in the distribution. Thereupon the trustees instituted a suit in equity in the Circuit Court of the United States for the district of Kentucky against the administrators and the other beneficiaries of the estate to establish the validity of their claims. Thomas Means died testate; and the principal matters in controversy were the construction of his will and the effect which certain advancements to William Means by Thomas Means in the lifetime of the testator had by way of satisfaction of the bequest to William Means contained in the will. A prolonged contest ensued in the Circuit Court, which terminated in a decision adverse to the trustees and the dismissal of their bill.

The trustees appealed to this court, where the decree of the Circuit Court was reversed, and a decree was ordered awarding to the trustees the relief prayed. Cowen v. Adams, 78 F. 536, 24 C.C.A. 198. The facts and a more minute statement of the questions involved than is now necessary are given in the opinion of this court there reported.

The defendants prayed for a certiorari to the Supreme Court of the United States, which was allowed. The judgment was there affirmed by a divided court. Adams v. Cowan, 174 U.S. 800, 19 Sup.Ct. 873, 43 pl.Ed. 1188. A rehearing was obtained by the defendants. The case was again argued, and, a majority of the court concurring in the decision, the judgment was again affirmed. Adams v. Cowen, 177 U.S. 471, 20 Sup.Ct. 668, 44 L.Ed. 851. The sum recovered by the final decree entered upon the mandate of the Supreme Court was $186,000. The counsel engaged in the service of the complainants during the progress of the suit in the Greene county court of common pleas and in the suit in the courts of the United States were Mr. Little, Mr. Glidden, the appellant here, Mr. Whittaker, and Mr. Harmon, though not all of them were employed throughout the litigation. Upon the fund being paid into court, the last three of these counselors and Mr. Spencer, as surviving partner of Mr. Little, filed their several petitions in the court below for allowances therefrom in compensation for the services each had rendered in the litigation producing it. An order of reference to a master to take testimony, ascertain and report what amounts should be paid to each of the counsel for their services, was made. Upon the hearing before the master it was contended for Mr. Spencer and Mr. Whittaker that they and Mr. Glidden should be treated upon the footing of partners, and that the three should be allowed equal sums. The master, against the objection of Mr. Glidden, adopted that view, and reported that each of the three was entitled to receive for his services the sum of $14,797, and that Mr. Harmon, who participated only in the case while in the Supreme Court, was entitled to receive $7,500. This result was reached by the master upon a basis adopted by him that the allowance to all of them should be $51,892, or 28 per cent. of the sum recovered. Exceptions to this report were filed by all the parties concerned; the exceptions by Mr. Glidden with which we are now concerned being that among other things, the master had erroneously assumed as the basis of his findings in reference to the amount to be allowed to him that he and Mr. Little and Mr. Whittaker occupied the relation of partners, and were therefore entitled to share equally in a gross sum fixed for all of them, notwithstanding the inequality of the amount of service found by the master to have been individually rendered by them, and that the sum allowed to him was inadequate compensation.

The decree of the court states that the court...