Hazlett v. Estate of Moore

• Decision Date: 23 May 1911
• Docket Number: 16,464
• Citation: 131 N.W. 589,89 Neb. 372
• Parties: ALFRED HAZLETT ET AL., APPELLANTS, v. ESTATE OF THOMAS MOORE ET AL., APPELLEES
• Court: Nebraska Supreme Court

131 N.W. 589

89 Neb. 372

ALFRED HAZLETT ET AL., APPELLANTS, v. ESTATE OF THOMAS MOORE ET AL., APPELLEES

No. 16,464

Supreme Court of Nebraska

May 23, 1911

APPEAL from the district court for Gage county: LEANDER M PEMBERTON, JUDGE. Reversed.

REVERSED.

Hazlett & Jack, pro se.

E. O Kretsinger and Rinaker & Kidd, contra.

OPINION

ROSE J.

As attorneys at law plaintiffs are seeking to recover the reasonable value of professional services rendered by them on behalf of the estate of Thomas Moore, deceased. An itemized bill for their fees was presented to and allowed by the county court as a claim against decedent's estate. From the order of the county court an appeal was taken to the district court, where a demurrer to plaintiffs' petition was sustained and the claim disallowed. Plaintiffs have appealed to this court.

The record presents the sufficiency of the petition to state a cause of action. The authority of plaintiffs to practice law is properly shown by the petition. It is also alleged therein that they performed on behalf of the estate of the decedent the professional services disclosed by an itemized statement attached to the petition. It is further stated that the services were rendered upon the request of two of the executors of decedent's will, and, as shown by the itemized statement mentioned, were of the reasonable value of $ 145, no part of which has been paid, except the sum of $ 30, and that the amount due from the estate is $ 110. In the fourth and fifth paragraphs of the petition it is alleged:

"That the said services were rendered at the request and direction of George Nicholas and George Buss, two of the executors of said estate; that at the direction and request and with the approval of said two executors of the estate of said Thomas Moore, deceased, plaintiffs filed their statement of account and claim against said estate for said services with the county court of Gage county, Nebraska, on the 15th day of September, 1906; that, at the time of rendering said services before mentioned, one Thomas W. Moore was the third executor of said estate; that, because a portion of said legal services were particularly useful to said estate, in preventing the said Thomas W. Moore from despoiling said estate, he refused to take part in the payment of plaintiffs' claim for legal services above set forth; and that the said Thomas W. Moore as one of the said executors had obtained possession of all the money and personal property of said estate and excluded the other two executors therefrom; and that the two executors who employed plaintiffs had not at any time any money or property of said estate in their hands with which to pay the claim of plaintiffs; and that the said two executors did not at the time of or after the rendition of said services have in their hands any money or property of said estate, but that the money and personal property of said estate was taken and kept solely and alone by the said Thomas W. Moore, one of the executors of said estate, who for the reasons aforesaid, and for no other, refused to make payment to plaintiffs.

"That after said claim had been filed in the county court of Gage county, Nebraska, objections were filed to the same by James T. Moore, who had been appointed administrator de bonis non of said estate, in place of said George Nicholas, George Buss, and Thomas W. Moore, executors, though at the time of the filing of the claim by plaintiffs none of the said executors had yet filed his final report, nor been finally discharged, nor had a settlement at that time with said estate; that objections also to said claim of plaintiffs were filed in said county court by Thomas W. Moore, who is the only person appearing in this court in opposition to the claim of plaintiffs; that thereafter on the 30th day of July, 1907, the plaintiffs and the administrator de bonis non of said estate, and the said Thomas W. Moore and all parties in interest in said estate appeared personally and consented that a hearing be had at that time upon plaintiffs' said claim by said county court of Gage county, Nebraska, and that said county court after a full hearing allowed plaintiffs' said claim in the sum of $ 115; that said order was appealed from by Thomas W. Moore, personally, and by no one else."

The defendant named in the petition is "The Estate of Thomas Moore, deceased." The demurrer, omitting the title and the signature, follows: "Now comes Thomas W. Moore, as defendant herein, an objector in the court below, and an heir and devisee under the will of Thomas Moore, deceased, and demurs to the petition of the plaintiffs, for the following reasons, to wit: 1. Said petition does not state facts sufficient to constitute a cause of action against the defendant or this demurrant. 2. That two executors could not bind said defendant and make it liable for any amount of attorney's...