Harris v. Root
| Citation | 72 P. 429,28 Mont. 159 |
| Parties | HARRIS v. ROOT et al. |
| Decision Date | 11 May 1903 |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; E. W. Harney, Judge.
Action by John S. Harris, as administrator of Robert G. Ingersoll deceased, against Henry A. Root and others. Judgment for defendants. Plaintiff appeals. Affirmed.
In this action the plaintiff seeks to recover a judgment against the defendants Root and Coram for $95,000, a balance alleged to be due for legal services rendered as attorney to the said defendants by Robert G. Ingersoll, plaintiff's intestate with interest there on from August 24, 1897. The right of recovery is based upon the following written agreement entered into between the parties:
The claim is made that, while the services were rendered for Root and Maria Cummings, it was intended by the parties that they should also insure to the benefit of the defendants Elizabeth S. Ladd, Marie Louise Dunbar, and Ellen S. Cornue, who, in case the will should be defeated, would share in the distribution of the estate.
It appears from the allegations of the complaint that previous to the institution of the contest, and in order to provide means to prosecute the contest, the defendants Cummings Ladd, Dunbar, and Cornue assigned to the defendants Root and Wells one-third of the interests claimed by them in the estate, in trust, to reimburse Root for the outlay necessary to procure counsel and to pay other expenses. It is further alleged that the defendant Coram acquired by assignment some interest in these shares, and also in the share of Root, the extent of which does not distinctly appear. Wells and the defendants other than those named are made parties in order that the amount received by Cummings, Ladd, Dunbar, Cornue, and Root, and the balance due them upon final distribution, may be ascertained, and the judgment recovered be declared a lien thereon in the hands of Leyson, the administrator with the will annexed, to secure the payment of the judgment. Andrew J. Davis died in 1890, and his estate has since that time been, and is now, in the course of administration by the district court of Silver Bow county. An account of the proceedings therein will be found by reference to the opinions of this court, published under the title "In re Davis' Estate," 27 Mont. --, 70 P. 721, and 27 Mont.--, 71 P. 757. The complaint herein sets them out with particularly, but they need not be repeated here. The allegations necessary to an understanding of this controversy are, in substance, the following: That the first contest of the probate of the will was instituted by Root and Cummings in the year 1890; that these contestants were aided and assisted by their codefendants Ladd, Dunbar, and Cornue, that, in order to prosecute the contest successfully, the services of Robert G. Ingersoll, an attorney at law of Dobbs Ferry, N. Y., were secured by the said Coram and Root; that the contest was tried in 1891, but without result, because the jury disagreed; that pending the trial the contract was entered into by Root and Coram, the latter becoming a party to it, because he had theretofore become entitled by assignment to certain interests in the shares of the contestants and their associates; that thereafter, on April 28, 1893, while the contest was still pending and undetermined, the contestants, with their associates, compromised the controversy with the proponent of the will by an agreement under the terms of which the contest was to be dismissed and the will admitted to probate; that the compromises was carried into effect by procuring a decree to be entered by the court in March, 1895, under the provisions of which the contest was dismissed, the will was admitted to probate, and Root, Cummings, Ladd, Dunbar, and Cornue were declared entitled to certain distributive shares in the estate; that thereafter other contests were instituted by other next of kin of the deceased, which were settled by a compromise similar to that of April 28, 1893, to which all persons claiming an interest in the estate were parties, and in pursuance of which a decree was entered by the court on August 24, 1897, dismissing the contests, and finally settling and determining all controversies between the proponent and the rival claimants, and declaring the shares to which each was entitled; that the said decree became the basis of the distribution of the estate, and that the contestants Root and Cummings became thereunder entitled to greater interests than they would have received, had the will been finally defeated; "that by virtue and as a result of the prosecution of said objections and contests of the validity of said writing so propounded for admission to probate as the last will and testament of said Andrew J. Davis, deceased," the said compromise contract and decree were procured, and became effectual to defeat the will, and to secure to the contestants and their associates all their rights as next of kin of A. J. Davis, deceased; that the plaintiff's intestate, by procuring the contract and decree, fully discharged his obligations under this contract, and kept and performed all the conditions thereof to be by him kept and performed; that thereby there became due and he was entitled to have paid to him the full sum of $100,000 and his expenses as stipulated therein, but that no part thereof has been paid, except the sum of $5,000, wherefore judgment is demanded for that amount, with interest from the date of the decree. Upon the issues made by the answers of the defendants, the cause came on for trial in the district court, sitting with a jury, on December 11, 1902. Evidence was offered by plaintiff in support of his allegations. This was objected to by the defendants Coram and Root, and the objection sustained by the court, on the ground that the complaint did not state a cause of action against them. The plaintiff having failed to amend, the jury was discharged, and judgment ordered entered for the defendants. From the judgment the plaintiff has appealed. He has also appealed from an order, made after judgment, vacating an order made prior to the trial by which a receiver was appointed to receipt to the administrator of the Davis estate for the shares of Root and...
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