Gorman v. Banigan
| Decision Date | 30 March 1900 |
| Citation | 22 R.I. 22,46 A. 38 |
| Parties | GORMAN v. BANIGAN et al. |
| Court | Rhode Island Supreme Court |
In aid of a quantum meruit for the value of an attorney's services, by Charles E. Gorman against John J. Banigan and another, plaintiff seeks a bill of discovery embracing all the real and personal estate of defendants. Defendants' answer denied all the material allegations in the bill. Plaintiff excepts to the answer for insufficiency, in not answering the interrogatories in the bill. Exceptions overruled.
Charles E. Gorman, in pro. per. Tillinghast & Tillinghast, for respondents.
TILLINGHAST, J.This is a bill of discovery, whereby the complainant seeks to obtain certain specific information as to the condition, extent, and value of the estate of the late Joseph Banigan, in aid of a suit at law which the complainant has brought against the respondents, who are the executors on said estate. The bill alleges that Joseph Banigan died on the 28th day of July, 1898, seised and possessed of a vast estate, both real and personal, and of great value, leaving a last will and testament, and a codicil thereto, in which the respondents (his four children) were named as executors and residuary devisees; that he left surviving him his widow, Maria T. Banigan, and said children; that on the
—— day of June, 1898, the respondents, learning that the said widow was dissatisfied with the provisions made for her in said will, and anticipating that she would not accept its provisions and would contest the probate thereof, retained and employed the complainant as an attorney and counselor at law to represent and act for them in effecting an agreement with said widow which would avoid any contest over the probate of said will, and of consulting with and directing them in and about the probate of said last will and codicil; that from and after said
——day of June, 1898, until the 1st day of
January, 1899, the complainant, at the special instance and request of the respondents, consulted and advised with, and performed various valuable professional services for, them in and about the probate of said will and codicil, and about certain negotiations with said Maria T. Banigan, and in and about said will and the estate devised thereby, during which time the complaint rendered intricate, difficult, and valuable professional services as an attorney and counselor at law, in connection with the probate of said will, and in the negotiations and settlement between said widow and the respondents, whereby a settlement and adjustment of said contest were brought about by the complainant, which was of great value to the respondents and to the estate of said Joseph Banigan; and that, by reason of said employment and services rendered, the respondents became indebted and liable to pay the complainant such sum as the nature, character, and extent of his services were reasonably worth. The bill then sets out that the respondents have refused to pay the complainant a reasonable compensation for his services, and that he has commenced an action at law against them to recover therefor, which action is now pending in the common pleas division of this court. The bill further alleges that in the trial of said action, in order to prove what a reasonable compensation for the services rendered as aforesaid would be, it is necessary to prove (a) the amount of property involved in said business; (b) the interests as well as the questions of law involved therein; (c) the actual labor done, and the benefits resulting from said services; and (d) the results reached, as well as the reputation and capacity of, and the labor performed by, the complainant. The bill further alleges that the personal estate left by said Joseph Banigan, as to which said services were rendered, was variously involved and Jeopardized in said contest, and. though the value thereof and its conditions are unknown to the complainant, the said respondents are each fully informed thereof, but are unwilling to disclose the same to the complainant, and as they, as executors of said will, have been exempted from filing au inventory of said estate, the complainant has no way of ascertaining the same, except by a discovery thereof by the respondents; that inasmuch as the evidence in proof of what a reasonable compensation is, for the complainant's services, must consist of the testimony of experts, or persons familiar with professional services and compensation therefor. it is necessary and important that such witnesses, upon being called upon to express an opinion, should be informed of the nature, amount, condition, and value of said personal estate, as well as the amount and value of said real estate, as to which last the complainant can furnish evidence without any discovery thereof. The bill then avers that it is absolutely necessary for the proper preparation of the complainant's said action for trial that the respondents make a full discovery of the facts aforesaid, and that he is unable safely to proceed to the trial of said action without a discovery being made as aforesaid. The bill therefore prays that the respondents be required to furnish a full and itemized account of all the stocks, bonds, bills receivable, notes, securities, mortgages, money in banks, and all other personal property of every kind and description which belonged to the testator at the time of his decease. The answer of the respondents denies all of the material allegations of the bill, except that the complainant was retained in the matters relating to the probate of the will, but as junior counsel only. It denies that there was in fact any contest over the will, and avers that no appeal was taken from the probate thereof, and that the negotiations had with Mrs. Banigan, which led to the final settlement with her, were only as to purchasing her interests in the estate given to her by the will, and denies that with these negotiations the complainant had anything whatever to do, except, after the terms of settlement had been agreed upon, to prepare the instruments to carry the same into effect, and these subject to the revision and approval of the respondents and their senior counsel. It admits, however, that certain professional services were rendered in the capacity aforesaid, and avers a readiness to pay the complainant so much as his services were reasonably worth. It also denies that the nature, character, and extent of said services were such as to render the discovery sought by the bill necessary, important, or relevant to the complainant's action at law; and it avers that the complainant in his said bill has not set out his alleged services in such manner as to sufficiently show the necessity and materiality of the discovery sought from the respondents, or to entitle him thereto. The respondents also incorporate in their answer a plea in bar, and a demurrer as to the discovery sought, based upon the same grounds as those set up in the answer. See French v. Rainey, 2 Tenn. Ch. 840. They also set out the will of Joseph Banigan, and the terms and conditions of the settlement which was made with said Maria T. Banigan. The case is before us on the complainant's exceptions to the answer for insufficiency in not answering the specific interrogatories contained in the bill, which call for a full and itemized account of all the personal estate of the deceased, as aforesaid.
In order to maintain a bill of discovery in aid of a suit at law, it is necessary for the complainant to show that the information sought is relevant and material to the issue, or to some issue raised in such suit. He must also show that he is justly entitled thereto, as evidence in connection with the preparation and trial of his case, and that such evidence is necessary to enable him fully to prosecute or defend the same. De Wolf v. De Wolf, 4 R. I. 450; Arnold v. Water Co., 18 R. I. 189, 26 Atl. 55; Finch v. Finch, 2 Ves. Sr. 492; Bailey v. Dean, 5 Barb. 300. Some of the adjudged cases go further than this, and require the party seeking a discovery to show affirmatively in his bill that the right which he seeks to enforce at law cannot be established without the discovery sought....
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