In re Estate of Lutz
| Decision Date | 05 January 1914 |
| Parties | In re Estate of THERESA LUTZ, Deceased; v. Estate of THERESA LUTZ, Appellant CHARLES C. CROW, Respondent, |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
AFFIRMED.
Judgment affirmed.
Vinton Pike and Charles F. Strop for appellant.
J. E Dolman and E. J. Broaddus for respondent.
This case originated in the probate court of Buchanan county Missouri. The estate of Theresa Lutz, deceased, was in process of administration and settlement in said court by John L. Zeidler, administrator with the will annexed. The respondent Crow was attorney for the administrator. At the time the final settlement was presented, but before it was submitted for final adjudication, said attorney filed a motion in the matter of said estate and as a part of the regular administration thereof, setting forth the fact that Zeidler was appointed administrator; that respondent had been the attorney from the time of the appointment, and had performed the necessary legal services in advising and assisting the administrator in reference to his inventory and appraisement, and with reference to his duties as such administrator during the continuance of the administration, and with reference to the proper disposition of all of the property belonging to said estate by turning it over to a trustee appointed by the circuit court pursuant to the terms of the will; stating also that respondent had advised, and acted as attorney for, said administrator up to the 30th day of November, 1910, the date of the presentation of said settlement; and moving the court to allow respondent a reasonable fee for such legal services and to tax the same as costs of the administration of said estate. Upon the filing and presentation of said motion, both the administrator and respondent appeared before the court, and the matter of the allowance of an attorney's fee was taken up. The court heard the evidence and sustained said motion and allowed respondent the sum of $ 3750 in full for all services performed as attorney for the administrator of said estate. The estate was large, amounting to considerably over $ 125,000 in personalty besides much real estate. After making the above allowance and also an allowance to the administrator for his commissions, the probate court approved the final settlement, and ordered that the balance due the estate in the hands of the administrator be turned over to the trustee appointed under the will, and that the trustee's receipt therefor be taken, and that, upon the filing of such receipt, said administrator and his bondsmen be finally discharged.
From the order allowing the above attorney's fee, the trustee and certain persons interested in the estate appealed to the circuit court.
There the matter was tried anew before a jury which returned a verdict for $ 3600 in respondent's favor. From a judgment on this verdict, the trustee and one of the legatees under the will have appealed to this court.
In the circuit court an objection was made to the introduction of any evidence offered by respondent in support of his claim. This objection seems to have been based upon two grounds, namely: 1. That there was no statement of claim or paper which could be considered as a foundation for the cause of action, to be found in the record certified by the probate court to the circuit court. 2. That the paper or motion, filed in the probate court by respondent as the foundation of his claim and brought up from said court and supplied in such certified record, was insufficient to support the proceeding because it was not in the precise form of a demand against the estate filed by a creditor thereof.
With reference to the first ground mentioned, that there was no paper or statement whatever to be found in the record certified by the probate court, it will be observed that the objection was not, and is not, that no such paper was filed in the probate court, but only that it was not included in those accompanying the certified copy of the record in the latter court. As it was actually filed in the probate court and was the foundation of the particular action of the court in question, it was the duty of the party appealing from the judgment of the probate court to have included it in the record certified to the circuit court. And, as the appealing parties did not include it therein, respondent had the right when its absence was noted to send down to the lower court and procure it. There was no objection to the identity of the paper, but the objection was that the imperfect record certified could not be thus supplemented by respondent. Under section 295, Revised Statutes 1909, the "original papers" relating to the matters should accompany the certified copy of the record. As the paper in question did not accompany the certified copy of the record, respondent could secure its production in the circuit court in any manner so long as its authenticity or identity as an "original paper" was not questioned. However, proof was made of its authenticity and no question of it was raised.
The second ground that even if the paper or motion thus supplied be considered a part of the record, it is insufficient to support the proceeding, is based upon the idea that an attorney's claim for services rendered the administrator in the work of settling an estate is a demand against the estate which the probate court has no power to allow unless it is presented in the form of a demand required by the statutes as in the case of creditors and other persons having claims against an estate.
If an attorney's fee for services rendered an administrator in the administration of an estate is a "demand" within the meaning of that term as used by sections 190 to 220, both inclusive, Revised Statutes 1909, then perhaps a motion for allowance of an attorney's fee in an estate might not be sufficient, since the attorney would have to conform to the requirements of section 201 of said statutes which provides that the claimant must "first make oath in open court, or file his affidavit with such claim, stating to the best of his knowledge and belief that he has given credit to the estate for all payments and offsets to which it is entitled, and that the balance claimed is justly due." But a claim for legal services rendered an executor or administrator in the administration of an estate is not a "demand" in that sense. It is a part of the necessary expenses of administration, which the probate court can allow out of the funds of the estate as a part of the proper administration and settlement of estates. It is not one of the "demands" spoken of by the statute, because section 190 makes no provision for its classification. [Nichols v. Reyburn, 55 Mo.App. 1, l. c. 8.] It is there said: "The very fact that all demands exhibited in the probate court must be classified, and that the statute makes no provision for the classification of such a claim, seems to preclude the idea of suit by the claimant in the probate court."...
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