In re Cordes' Estate

• Decision Date: 03 May 1938
• Docket Number: No. 24522.,24522.
• Citation: 116 S.W.2d 207
• Parties: In re CORDES' ESTATE. CORDES v. COFFMAN et al.
• Court: Missouri Court of Appeals

116 S.W.2d 207

In re CORDES' ESTATE.

CORDES v. COFFMAN et al.

No. 24522.

St. Louis Court of Appeals. Missouri.

May 3, 1938.

Rehearing Denied May 18, 1938.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be published in State Reports."

Proceedings in the matter of the estate of Mercedes Cordes, a minor, wherein Frank Coffman and another filed claim which was opposed by Martha Cordes, guardian of the minor. From a judgment of the circuit court on appeal from the probate court allowing the claim, the guardian appeals.

Judgment reversed.

Hemm & Moon, of St. Louis, for appellant.

Frank Coffman and Julius J. Fuchs, both of St. Louis, pro se.

BECKER, Judge.

This action originated in the probate court of the city of St. Louis where the respondents, hereinafter referred to as claimants, filed their claim against the estate of Mercedes Cordes, a minor Martha Cordes, guardian, for alleged necessary and beneficial legal services rendered said estate. The claim was denied in the probate court, and on a trial de novo on appeal in the circuit court claimants' claim was allowed in the sum of $1,637.14. The guardian in due course appealed.

There is no dispute as to the facts in the case. The record discloses that one John Herman Cordes died testate in the city of St. Louis, leaving surviving him a divorced wife and three daughters, all of whom lived in Germany. Two of the daughters were adults and one a minor about eighteen years of age. The will, which was duly probated, among other things provided that the executor shall "divide my estate equally among my three daughters when they shall reach the age of twenty-five years. The daughters are to receive interest on their share of the estate until they shall reach the age of twenty-five years. In the event of the death of George Tieman, the administrator, I hereby appoint my eldest daughter to succeed him as my administrator."

Upon the death of the testator, the former wife and three daughters came to St. Louis, and the mother was appointed guardian and curatrix of the estate of Mercedes Cordes, the minor daughter. The executor of the estate was of the opinion that the provision in the will, quoted above, created a trust, and it was his intention, when administration of the estate was closed, to hold the estate as trustee under said provision of the will until the minor should attain the age of twenty-five years. In this situation the two adult daughters, and the mother, as guardian and curatrix of the estate of the minor daughter, "sought respondents' services for contesting the matter of trust or no trust. They wanted to demand and sue for, if necessary, and to receive their respective shares at the end of the administration, the guardian acting for the minor's estate, and the older daughters for themselves. They sought legal aid in resisting the claim of the executor. They wanted to take all of the steps necessary to bring about the distribution of the estate at the close of the administration. The guardian, acting as such, and for the benefit of the guardianship estate, engaged respondents to take every legal step necessary to gain her ward's share of this estate at the close of the administration."

It is not controverted but that the mother, as guardian and curatrix of the minor daughter, engaged the legal services of the claimants for the purposes above expressed upon a contingent basis; that if successful in obtaining the assets of the estate at the close of the administration claimants' fee should be 10 per cent. thereof.

Before the claimants had instituted any suit in the matter, the executor of the estate of John Herman Cordes filed suit in the circuit court for a construction of the will. In this action, however, only the two adult daughters and Martha Cordes, guardian and curatrix of Mercedes Cordes, the minor daughter, were made parties defendants. The minor herself was not made a party to the action.

The claimants represented all of the defendants in the suit to construe the will and were successful in having the circuit court declare that the will did not establish a trust, and, in conformity with their agreement with the adult daughters, collected a 10 per cent. contingent fee from each of them, and then filed their claim for the allowance of an attorneys' fee in the minor's estate in the probate court.

Appellant contends here that attorneys' fees in this case cannot be allowed because the minor was not a party to the suit in which claimants' services were rendered. Upon the record before us the point is well taken.

The record discloses that one of the claimants on direct examination, among other things, testified that when Martha Cordes, guardian and curatrix of Mercedes Cordes, the minor, came to his office the second time, "we discussed the fee again and I told her, and I agreed, that I would do everything that was necessary to bring about the test of the subject matter of that trust, and whether it was a trust, and, if a trust, whether it would stand, and too, if I could, bring about the distribution of that estate between her two daughters, who were of age, and the estate of this minor; and in that conference I agreed to accept her proposition to do this work for ten per cent. * * * Upon that agreement I made with her, I entered upon the duty of the work, the attempting to bring about the distribution of this estate, if, as and when the probate court should declare the administration was over. * * * Then, about the time the contract of employment was made, or after the contract of employment was made, we learned that the attorney for the deceased estate had filed a suit in the circuit court to test the question of whether or not there was actually a trust created. In due time, probably two or three weeks after the employment, Mrs. Cordes brought to my office a summons and a copy of...