Hanlon v. Wheeler

• Decision Date: 17 March 1898
• Court: Texas Court of Appeals
• Parties: HANLON et al. v. WHEELER.<SMALL><SUP>1</SUP></SMALL>

45 S.W. 821

HANLON et al. v. WHEELER.¹

Court of Civil Appeals of Texas.

March 17, 1898.

Error from district court, Galveston county; William H. Stewart, Judge.

Action by Mary Hanlon and others against R. T. Wheeler, administrator of the estate of John James Hanlon, deceased. From a verdict granting plaintiffs partial relief, plaintiffs bring error. Affirmed.

L. E. Trezevant, for plaintiffs in error. Davidson & Minor, for defendant in error.

GARRETT, C. J.

The plaintiffs in error, Mary Hanlon, Sarah Hanlon, Samuel Hanlon, and Elizabeth Kieran (joined by her husband, John Kieran), as heirs of John James Hanlon, deceased, filed a complaint in the probate court of Galveston county against the defendant in error, R. T. Wheeler, as the administrator of the estate of John James Hanlon, and alleged therein that since his appointment as administrator more than two years had elapsed, and he had not returned into the probate court an exhibit of the condition of said estate; that the administrator had collected for the estate more than $9,000 upon a judgment in the district court of Galveston county in favor of the deceased. Complainants prayed that said Wheeler be cited to show cause why he should not file an additional inventory of said estate, and why he should not return an exhibit of the condition of the estate, and why his letters of administration should not be revoked. To this complaint the administrator on November 20, 1894, filed an amended answer, in which he alleged that on December 22, 1892, he paid to the complainants $2,053.61, in full payment of all that was due them, and on that date filed a complete exhibit and final account in said estate, a copy of which was attached to his answer and exhibit; that under a contract made by Louis Evers, as next friend to John James Hanlon, who was a minor, with Wheeler & Rhodes, as lawyers, one-half of the money recovered for said minor in the district court of Galveston county, to wit, $9,627.10, was their fee; that the amount contracted for was the usual and customary fee for professional services in an action of that nature, and was in all respects reasonable and proper; and that the other half, $4,813.55, had been inventoried as the property of the estate of the said John James Hanlon, who had in the meantime died, and upon whose estate defendant in error had administered; that all debts known to exist against said estate, as shown by the exhibit attached to the answer, had been paid by the administrator, and the balance paid to the heirs of said Hanlon, as above stated. On December 10, 1894, the complainants filed a pleading in which they alleged that it appeared from the amended answer of R. T. Wheeler, as administrator of said estate, that he had received, after the death of said Hanlon, the sum of $9,627.10, as the property of said estate; that it appeared from the amended answer that Wheeler & Rhodes claimed one-half of said sum of money as their fee as attorneys for said intestate; and that they claimed said fee under a contract made by them with one Louis Evers, as the next friend of said intestate, who was then a minor. And the complainants charged that said contract was made with a person having no authority in law to make a contract for or on behalf of such minor, and that the value of one-half the said estate was inventoried at $4,813.55, and that the bond of the said administrator was for the sum of $9,000 only, and was insufficient in amount, and prayed that said Wheeler be cited to show cause why he should not be required to give a new bond. To this complaint the administrator answered that on November 24, 1894, he had filed his final account in said estate, and that publication thereof was then being made, and that said final account showed that said estate had been completely administered, and that there was then no money or property on hand belonging to said estate. To the answers of the administrator the complainants on December 17, 1894, filed their first supplemental complaint, in which they presented several special demurrers, which were overruled by the probate judge; and a decree was entered by him that the account pleaded as a final account be approved, and that the administrator be discharged from his trust, at complainants' costs. From this decree the complainants appealed to the district court. In the district court the complainants' several special demurrers to the administrator's answers were overruled, and upon a trial by a jury a judgment was rendered upon their verdict in favor of the heirs for $61.45 and costs of suit, and that the account of the administrator for final settlement be approved, and that he be discharged from his trust, and that the said estate be closed, upon the payment by him of the said sum of $61.45, and all costs incurred by the complainants, and all unpaid costs of the administration, if any, and that said judgment be certified to the probate court for observance. It was shown at the trial in the district court that Wheeler & Rhodes, attorneys at law (of which firm the administrator was a member), had entered into a contract with John James Hanlon, as a minor, who was represented by one Louis Evers, as next friend, and with said Hanlon in proper person, for the prosecution of a claim for damages against the Texas Standard Cotton Seed Oil Company for personal injuries received by the said Hanlon while he was in its employment. The contract was signed by Hanlon, also, and was witnessed by Louis Evers. It stipulated that Wheeler & Rhodes should have for their services one-half of the amount of damages recovered. In this damage suit, judgment was rendered in the district court of Galveston county in favor of Hanlon, suing by Evers, as next friend, against the oil company, on April 18, 1890, for the sum of $9,000, with 8 per cent. interest. Wheeler & Rhodes collected said judgment on March 31, 1891, receiving thereon the sum of $9,639.10. Hanlon in the meantime had died, and on October 28, 1891, Wheeler administered upon his estate in the county court of Galveston county, and returned an inventory for $4,813.55, as one-half the amount collected upon the judgment. The defendant in error testified that, when Wheeler & Rhodes collected the judgment, they deducted from the amount thereof $44.90 for prompt payment, and to avoid complications that might arise from the fact that Hanlon was then dead, which was not known to defendant in that suit. The administrator further testified that on December 22, 1892, he had a settlement of the estate with H. J. Labatt, who represented the complainants and the heirs of Hanlon as attorney in fact, and that Labatt made up the full account for him, which showed a balance remaining on hand, in favor of the heirs, in cash, $2,226.70; that they deducted from this amount $200 to cover the costs of court, and the administrator then paid to Labatt, for the heirs, the sum of $2,053.61, which was shown to be all that they were entitled to, and for which Labatt executed him a receipt in full settlement. It was shown that the administrator had paid more than the sum of $200 reserved for that purpose in settlement of the costs of the administration. Wheeler and Labatt both testified that the account was correct, testifying specially as to each item therein, and that there had been a full investigation made by Labatt, upon vouchers submitted to him by Wheeler, which had been sworn to by the persons in whose favor the claims were, except the claim of the administrator for expenses incurred during the administration, which he testified was correct, and was for proper charges against the estate, the items of which were examined by Labatt, and were allowed...