Gwin v. Fountain

• Decision Date: 20 January 1930
• Docket Number: 28082
• Citation: 132 So. 559,126 So. 18,159 Miss. 619
• Court: Mississippi Supreme Court
• Parties: GWIN v. FOUNTAIN et al

126 So. 18

132 So. 559, 159 Miss. 619

GWIN v. FOUNTAIN et al

No. 28082

Supreme Court of Mississippi

January 20, 1930

Division B

1. EXECUTORS AND ADMINISTRATORS. Trusts. Will giving executor and trustee power to employ persons necessary to manage trust estate included power to employ counsel.

Will giving executor and trustee, without precedent order of chancery court or a subsequent approving order, power to employ all persons necessary to properly conduct and manage trust estate, in order to carry out testator's purposes included employment of competent counsel to advise and aid executor and trustee in execution of trust.

2. EXECUTORS AND ADMINISTRATORS. Trusts. Under will giving executor and trustee power to employ persons necessary to manage estate, obligation incurred for attorney's services was made charge against trust estate.

Under will giving executor and trustee full power to employ persons necessary to properly conduct and manage trust estate, in order to carry out testator's purposes, obligation incurred in employing counsel was made charge against trust estate and not personal charge against executor and trustee.

3. EXECUTORS AND ADMINISTRATORS. Trusts, Where will empowered executor and trustee to employ persons necessary to manage trust estate, attorney's fees could be made charge against trust estate (Hemingway's Code 1927, section 1875).

Where will gave executor and trustee full power to employ persons necessary to properly conduct and manage trust estate, in order to carry out testator's purposes, fees of attorney employed by executor and trustee could be made charge against trust estate, since powers conferred on executor and trustee took administration of estate out of operation of Code 1906 section 2131 (Hemingway's Code 1927, section 1875) providing that, in settlements, executor is entitled to credit for reasonable sums paid for services of attorney in behalf of estate.

4. ATTORNEY AND CLIENT. Dealings between attorney and client must be characterized by utmost fairness and good faith.

All dealings between attorney and client must be characterized by utmost fairness and good faith on part of attorney.

5. ATTORNEY AND CLIENT. Dealings between attorney and client are held, as against attorney, to be prima facie fraudulent. Dealings between an attorney and his client are held, as against attorney, to be prima facie fraudulent, and attorney in order to sustain such transaction when advantageous to him, has burden of showing, not only that he used no undue influence, but that he gave his client all information and advice which it would have been his duty to give if he himself had not been interested.,

6. ATTORNEY AND CLIENT. Equity will relieve client from undue advantage secured over him by attorney.

Equity will relieve client from hard bargain or from any undue advantage secured over him by his attorney.

7. ATTORNEY AND CLIENT. One acting in fiduciary capacity cannot use that relation to benefit his personal interests, except with full knowledge and consent of the other.

One acting in fiduciary capacity cannot make use of that relation to benefit his own personal interests, except with full knowledge and consent of the other person.

8. ATTORNEY AND CLIENT. Actual fraud, involving moral turpitude on part of attorney dealing with client, is not indispensable element of fraud.

Actual fraud, involving moral turpitude, on part of attorney in transaction with client, is not an indispensable element of fraud, but facts and circumstances growing out of relation may be such that advantage gotten by attorney constitutes fraud in law on rights of client, regardless of good faith of attorney.

9. ATTORNEY AND CLIENT. Attorney's trust relations to legatees and to estate held of such character as to render decree for allowance of attorney's fee fraudulent in law, where attorney did not give them actual notice court would be asked to make order allowing fee.

Where attorney had been original executor's counsel throughout his executorship, and was attorney for executor who succeeded him, and attorney was also legal adviser of legatees and devisees under will, and, in addition, there existed between at torney and his family and legatees and devisees very intimate social relations, attorney's trust relations to devisees and legatees and to estate held of such character as to render decree for allowance of attorney's fee against estate fraudulent in law, where he did not give them actual notice that executors of deceased executor filing final report of such executors' administration of estate would ask court to make order allowing attorney's fee for services to estate.

10. ACTION. Suit to set aside decree Mowing attorney's fee against estate and action by corporation, organized under provisions of will, for goods sold attorney, held properly consolidated.

Suit by executors to set aside decree allowing attorney's fee against estate and action by corporation, organized under provisions of will to carry out provisions of will, for goods, wares, and merchandise sold to attorney and his family, held properly consolidated and tried together.

11. ACTION. Where there are several actions between same parties, subject-matter being same, requiring same general character of evidence, court may consolidate actions.

Where there are several actions between same parties, subject-matter being same in each, requiring substantially same general character of evidence in each, court, to save time and expense, is authorized to consolidate actions, and try them as one cause.

12. ACTION. Appeal and error. Whether cases should be consolidated rests in court's sound discretion, which will not be interfered with on appeal, unless abused.

Whether cases should be consolidated rests in sound discretion of court, and this discretion will not be interfered with on appeal, unless it is abused.

13. ACCOUNT, ACTION ON. Where account is sworn to, proof of correctness of items is dispensed with, unless there is counter affidavit (Hemingway's Code 1927, section 1710).

Under Code 1906, section 1978 (Hemingway's Code 1927, section 1710), where account sued on is properly sworn to, proof of correctness of items of account is dispensed with, unless there is counter affidavit by defendant, denying genuineness of items in whole or in part.

14. ACCOUNT, ACTION ON. Statute relating to affidavit to account does not alter law of pleading, and defendant, without counter affidavit, may contest liability, though account is sworn to (Hemingway's Code 1927, section 1710).

Code 1906, section 1978 (Hemingway's Code 1927, section 1710), relating to affidavit to account prescribes rule of evidence, and does not alter law of pleading, and defendant, without counter affidavit, is entitled to contest his liability, notwithstanding account be sworn to.

15. ACCOUNT, ACTION ON. Affidavit to account held substantial compliance with statute (Hemingway's Code 1927, section 1710).

Affidavit reading "affiant says further that the foregoing account in favor of W. T. F., incorporated, against S. L. G. and charged to Mrs. S. L. G., to which this affidavit is affixed, is true and, correct as therein stated, and is now past due and unpaid and owing by the said S. L. G. to said W. T. F., incorporated," held substantial compliance with Code 1906, section 1978 (Hemingway's Code 1927, section 1710).

16. EXECUTORS AND ADMINISTRATORS. Trusts. In suit to set aside decree allowing attorney's fee against estate, in which attorney asked for allowance of reasonable fee if decree was void, evidence regarding value of services held improperly excluded.

In suit to set aside decree allowing defendant certain sum as attorney's fee against estate, in which defendant prayed that, in event court should hold decree to be void, defendant be allowed a reasonable fee for his services to estate, evidence regarding value of services as attorney held improperly excluded, where decree was set aside, but, under terms of will empowering executor and trustee to employ persons necessary to manage estate, attorney's fee could be made charge on trust estate, and wan not personal liability of executor and trustee.

ON SUGGESTION OF ERROR.

Feb. 23, 1931.

[132 So. 559. No. 28082.]

APPEAL AND ERROR. Supreme Court cannot decide issues of fact pretermitted by trial court, nor consider evidence which trial court excluded. The Supreme Court is a court of appellate jurisdiction only, and cannot decide issues of fact which have been pretermitted by the court below, nor decide issues of fact by considering evidence which was excluded by the lower court.

HON. HARVEY McGEHEE, Chancellor.

APPEAL from chancery court of Leflore county HON. HARVEY MCGEHEE, Chancellor.

Suit by W. M. Fountain, executor of the estate of W. T. Fountain, deceased, and others against S. L. Gwin, consolidated with an action by W. T. Fountain, Incorporated, against S. L. Gwin. From the decree, defendant appeals. Reversed in part, and affirmed in part.

On suggestion of error.

Suggestion of error sustained in part, former opinion modified, and decree remanded in part.

For former opinion, see 126 So. 18.

Reversed in part and affirmed in part. Suggestion of error sustained.

Means Johnston, of Greenwood, S. Rosenthal, of Jackson, and Cutrer & Smith and G. E. Williams, all of Clarksdale, for appellant.

The court erred in declaring the decree of December 7, 1922 void and in excluding evidence thereon.

The decree sought to be set aside is a valid, binding, subsisting and final decree which cannot now be disturbed.

Appellant readily recognizes the rule that ordinarily the employment of counsel by representative results in the personal obligation of the representative to the attorney, but in the...