Harwood v. Scott

• Citation: 211 P. 316,65 Mont. 521
• Decision Date: 21 December 1922
• Docket Number: 4962.
• Parties: HARWOOD v. SCOTT.
• Court: United States State Supreme Court of Montana

211 P. 316

65 Mont. 521

HARWOOD v. SCOTT.

No. 4962.

Supreme Court of Montana

December 21, 1922

Commissioners' Opinion.

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by E. N. Harwood against Sibyl Scott, administratrix of the estate of Rachel E. Williams, deceased. From judgment for defendant and from an order overruling plaintiff's motion for a new trial, the plaintiff appeals. Reversed and remanded.

J. A Poore, of Butte, for appellant.

J. E Healy, of Butte, for respondent.

LEIPER C. C., and FORD, C.

Plaintiff brings this action for the purpose of recovering upon an alleged account stated for moneys due the plaintiff, by reason of professional services rendered in the capacity of an attorney at law for Rachel E. Williams as the administratrix of the estate of Henry Williams, deceased. The action is brought against Sibyl Scott as the administratrix of the estate of Rachel E. Williams, deceased, and it is admitted in the pleadings that the defendant is the administratrix of the estate of Rachel E. Williams, deceased.

The complaint alleges, in substance, that the plaintiff is an attorney at law, duly licensed to practice as such in the courts of the state of Montana; that Rachel E. Williams was from the 12th day of August, 1905, to the 12th day of August, 1906, the duly appointed, qualified, and acting administratrix of the estate of Henry Williams, deceased; that during this period of time last above noted the plaintiff performed services as such attorney at law for Rachel E. Williams, as such administratrix; that Rachel E. Williams as such administratrix agreed to pay to the plaintiff the sum of $1,800, or that portion thereof which the judge of the district court in which the estate was then pending, should approve; that such administratrix made her fourth annual accounting to the court, in which it was stated, among other things, that there was then due to the plaintiff the sum of $1,800 on account of legal services rendered by him in connection with such estate; that such report was duly approved by the court and an order made allowing the sum of $1,800 to this plaintiff.

It is further alleged that upon the approval of the account so filed by such administratrix that Rachel E. Williams became indebted to this plaintiff in the sum of $1,800, no part of which has been paid. It is further alleged that Rachel E. Williams died in March, 1907; that defendant herein was duly appointed as the administratrix of the estate of Rachel E. Williams, and is now acting as such; that a claim was duly filed with the defendant as such administratrix, for the sum of $1,800, which claim was rejected by the administratrix; that attached to the claim so filed was a copy of the decree of the court settling and allowing the account of Rachel E. Williams as administratrix.

The defendant answered, admitting that the defendant is the administratrix of the estate of Rachel E. Williams; admitting the presentation of the claim, and that there was attached to it a copy of the decree of the court approving such account, and also admitting that the claim was rejected. The answer alleges that the plaintiff was fully paid for all of the services upon which this claim is based, and denies all of the other allegations of the complaint. The reply puts in issue all of the affirmative matter set forth in the answer. The cause was tried to a jury and verdict rendered favorable to defendant; and judgment entered thereon. Plaintiff thereafter duly filed his motion for a new trial, which was overruled. These appeals are from the judgment and order overruling plaintiff's motion for a new trial.

The evidence introduced was in part documentary and in part oral. The documentary evidence consisted of the following matter: (a) The order appointing Rachel E. Williams as the administratrix of the estate of Henry Williams, and is dated August 11, 1902; (b) the letters of administration granted to Rachel E. Williams in the estate last above mentioned, dated August 12, 1902; (c) the third report and annual account of Rachel E. Williams in the estate of Henry Williams, which was filed August 21, 1905; (d) the fourth annual report and account of Rachel E. Williams in the estate of Henry Williams, which was filed August 14, 1906; (e) the decree of the court settling and allowing such fourth annual account and report of Rachel E. Williams, dated February 18, 1907; (f) the claim of the plaintiff filed with the defendant as executrix. In such fourth annual account introduced in evidence, among other things, appears the following:

"Aug. 12. By amount due E. M. Harwood for services and counsel as attorney rendered on behalf of the estate of Henry Williams deceased, in and about the administration thereof, and in each and all cases pending in the courts of the state of Montana, and in the circuit court of the United States for the district of Montana, in which Rachel E. Williams, as administratrix of the estate of Henry Williams, deceased, is impleaded as a party, from August 12, 1905, to August 12, 1906, subject to allowance of the above-entitled court, voucher No. 763--$1,800."

In such decree of the court, settling and allowing the fourth annual account, above noted, there appears, among other things, the following:

"That the sum of $1,800 is a reasonable and just amount to be allowed said administratrix for the services rendered by her said attorney during the period mentioned in said account in the matters, suits, and proceedings therein mentioned, and the credit of said sum of $1,800 ought to be, and is hereby, allowed said administratrix as reasonable compensation for said services of said attorney necessarily employed by said administratrix, and rendered by said attorney on behalf of said estate, as specified in said account."

The creditor's claim, filed by the plaintiff with the defendant as administratrix, is in the usual form, and the item herein claimed of $1,800, together with other items therein enumerated, is therein set forth.

The oral testimony consisted of that given by the plaintiff himself and was in part as follows: That he is, and at all the times mentioned in the complaint has been, a practicing attorney at law, duly licensed to practice as such in all of the courts of the state of Montana; that he was well acquainted with the handwriting of Rachel E. Williams, administratrix of the estate of Henry Williams, deceased; that the name Rachel E. Williams attached to the third and fourth annual accounts and reports of the administratrix of the estate of Henry Williams, deceased, is the signature of Rachel E. Williams; that no part of the $1,800 or any interest thereon claimed herein, has been paid.

The defendant did not cross-examine any of the witnesses who testified in behalf of plaintiff; neither did the defendant offer any testimony whatsoever in her behalf.

In so far as the record before this court discloses, there were no objections made to any of the instructions given. In instructions numbered 4, 5, 6, and 7, the jury were told:

Instruction No. 4.

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