In re Franz' Estate

• Decision Date: 03 December 1940
• Docket Number: 36,033,36,034
• Citation: 145 S.W.2d 400,346 Mo. 1149
• Parties: In re Estate of Ernst H. Franz, Mississippi Valley Trust Company, Administrator, v. Security-First National Bank of Los Angeles, Executor, etc., Appellant. In re Estate of Walter G. Franz, T. M. Pierce et al. v. William E. Franz et al., Appellants
• Court: Missouri Supreme Court

145 S.W.2d 400

346 Mo. 1149

In re Estate of Ernst H. Franz, Mississippi Valley Trust Company, Administrator, v. Security-First National Bank of Los Angeles, Executor, etc., Appellant. In re Estate of Walter G. Franz, T. M. Pierce et al. v. William E. Franz et al., Appellants

Nos. 36,033, 36,034

Supreme Court of Missouri

December 3, 1940

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Reversed and remanded (with directions) to allow $ 8000 against the one estate and affirmed as to $ 20,000 allowed against the other estate.

J Hugo Grimm and Buder & Buder for appellants Boyle & Priest of counsel.

(1) The appeal of Pierce and Liberman should have been dismissed, because they were strangers to the record. The record itself must show their right to appeal, and the record of the probate court failed to show this. Zumwalt v. Zumwalt, 3 Mo. 269; State ex rel. v. Wurdeman, 286 Mo. 153; Gum v. Meyers, 277 S.W. 948; Briard v. Goodale, 86 Me. 100; Lewis v. Bolitho, 6 Gray, 137. (a) A person appearing in a suit in which he is not a party and participating therein on the one side or the other may be bound by the judgment rendered, but since he is not a party has no right to appeal. Leahy v. Mercantile Trust Co., 296 Mo. 594; McLain v. K. C. Bridge Co., 88 S.W.2d 1022; Leahy v. Campbell, 274 Mo. 343. (b) The statute allowing appeals formerly allowed it "to any person aggrieved by any judgment" (R. S. 1879, sec. 1018), but this section was amended to read "any party," the effect of this which was pointed out by this court in the above cases. Additional authorities on this point: White Brass Co. v. Union Metal Co., 232 Ill. 165; Black v. Kirgan, 15 N. Y. L. 45; Lewis v. Bolitho, 6 Gray, 137; Swan v. Piquet, 3 Pic. 443; Sherer v. Sherer, 93 Me. 210, 44 A. 899; Elterich v. Arndt, 27 P.2d 1102; Briard v. Goodale, 86 Me. 100, 29 A. 946. Under the above cases even if Pierce and Liberman had appeared and testified they would nevertheless not be concluded by the judgment, and therefore not entitled to appeal. (2) If the appeal could be construed as a presentation by Pierce and Liberman of a claim or demand for services, the demand for a jury trial should have been granted. Demands in the probate court exceeding $ 20 are triable by jury. R. S. 1929, secs. 200, 648. (a) While a demand for allowance of attorneys' fees is not a demand which will be classified under Section 182 of the statutes it is nevertheless a demand at law. State ex rel. v. Walsh, 67 Mo.App. 348; Powell v. Powell, 23 Mo.App. 368; Kingsbury v. Joseph, 94 Mo.App. 298; Crow v. Lutz, 175 Mo.App. 247; Nichols v. Reyburn, 55 Mo.App. 7; Briggs v. Ry. Co., 111 Mo. 168; Grading Co. v. Smith, 238 Mo. 323; King v. Mann, 315 Mo. 318; Hickox v. McKinley, 311 Mo. 234. (3) A grant of letters based on a petition omitting the averment of a jurisdictional fact and no evidence thereof being heard may be avoided in a collateral attack where it is shown that such fact did not exist. Car Co. v. Lavlik, 93 F. 519; Shipman v. Butterfield, 47 Mich. 487; Woerner, Law of Admin. (3 Ed.), p. 858. Here the existence of indebtedness was jurisdictional, but there was no allegation of indebtedness and none existed. The appeal of the administrator was therefore void and not merely voidable. In re Wilson's Estate, 16 S.W.2d 737; Pikey v. Riles, 20 S.W.2d 551; State v. Guinotte, 227 Mo.App. 902; In matter of Allen, 307 Mo. 674; Woerner on Administration (3 Ed.), sec. 205. (4) The application of the Mississippi Valley Trust Company for appointment as ancillary administrator shows on its face that it is not a person interested in the estate, and therefore it had no right to ask for letters. Sec. 8, R. S. 1929. (a) But, if it was sufficiently interested to make application, it was necessary under Section 8 to give five days notice to G. A. Franz, one of the legatees, who lived in St. Louis, but no such notice was given. There was no waiver by Mr. Franz, and therefore the appointment of the Mississippi Valley Trust Company was null and void. Pikey v. Riles, 20 S.W.2d 551; Hollingsworth v. Jeffries, 121 Mo.App. 660, 97 S.W. 632; Linder v. Burns, 243 S.W. 365; Skelly v. Veerkamp, 30 Mo.App. 53; In re Wilson's Estate, 16 S.W.2d 739; McCabe v. Lewis, 76 Mo. 301; In re Allen's Estate, 307 Mo. 674, 271 S.W. 757; State ex rel. Scanlon v. Thompson, 196 Mo.App. 19; State ex rel. Riesmeyer v. Holtcamp, 273 Mo. 124; State ex rel. Grover v. Fowler, 108 Mo. 465; Mullanphy v. Court, 6 Mo. 563; Guthrie v. Wetzel, 205 Mo.App. 664, 226 S.W. 626; In re Graves' Estate, 73 S.W.2d 847; State v. Henderson, 88 S.W.2d 901; State ex rel. Fansher v. Guinotte, 277 Mo.App. 902, 58 S.W.2d 1005. Mr. Franz might have waived his right, but under the statute, Section 9, such waiver would have had to be in writing. (5) The attorneys should only be compensated out of the estate for such services as a careful and prudent administrator would have been justified in engaging and such as were of benefit to the estate, but not for unnecessary services or services rendered to correct errors or misconceptions of the attorneys themselves. Sec. 2059, R. S. 1929; 24 C. J., 105; Nichols v. Rayburn, 55 Mo.App. 5; Estate of Sawyer, 124 Iowa 192; In re Estate of Dalton, 183 Iowa 1913; Porche v. Creditors of Banks, 8 La. Ann. 65; Phillips v. Phifer, 7 Ky. L. R. 679; In re Estate of Snowball, 156 Cal. 235; Felsenthal v. Kline, 214 Ill. 122; In re Peters Estate, 122 Mo.App. 666. The evaluation of the services of these attorneys at $ 60,000 is grossly excessive. (6) The administrator could not appeal from an order which it requested the court to make, namely, an order directing it as to the amount it should pay its attorneys, and if the attorneys themselves joined the administrator in such a request they would be bound by the court's action and could not appeal. Star Bottling Co. v. Exposition Co., 240 Mo. 634, 144 S.W. 776; Deiermann v. Bemis Bros. Bag Co., 144 Mo.App. 474, 129 S.W. 229; Fitzroy v. People's Bank, 195 S.W. 520; Monnig v. Easton Amusement Co., 27 S.W.2d 495; Still v. Glass, 222 S.W. 893. (7) Where deceased left no debts owing in this State administration was unnecessary. Johnston v. Johnston, 173 Mo. 97; Richardson v. Cole, 160 Mo. 377; Byers v. Weeks, 105 Mo.App. 77; Fairchild v. Lohman, 13 F.2d 253. (8) Probate courts are creatures of the statute and can do nothing except when the statute gives power to do so. Such courts take nothing as to the exercise of such powers by implication. Powers v. Blakey, 16 Mo. 437; Lake v. Meier, 42 Mo. 389; Coil v. Pitman, 46 Mo. 51; Baldwin v. Whitcomb, 71 Mo. 651; Scudder v. Ames, 89 Mo. 521; Waldermeyer v. Loebig, 183 Mo. 363, 81 S.W. 904.

Jacob M. Lashly, Charles P. Williams and Samuel H. Liberman for respondents.

(1) The undisputed evidence showing the services necessarily and properly rendered to the estate, by Messrs. Pierce and Liberman, in litigation extending over a period of ten years the amount involved, the beneficial results obtained for the estate, and the contingent nature of the attorneys' right to compensation, amply supported the trial court's finding that the fee of $ 60,000 paid by respondent was a fair and reasonable charge to the estate for services so rendered. Trautz v. Lemp, 334 Mo. 1085; Smith v. Souch, 117 Mo.App. 272; Barcus v. Gates, 130 F. 364; Gilmore v. McBride, 156 F. 464; Glidden v. Cowen, 123 F. 48; In re Bynall, 9 F. 385; Straus v. Victor Talking Machine Co., 297 F. 791; Taylor v. Scarborough, 65 F.2d 589; 6 C. J., 750-752; Dooley v. Welch, 172 Mo.App. 528; In re Carlin v. De Armond, 226 Mo.App. 627. (2) The interchange of divisions between Judge Williams and Judge Connor was entirely proper under the Rules of the Circuit Court of the City of St. Louis. Secs. 2116, 2131, R. S. 1929. (3) The actions of the circuit court, on the 25th day of November, 1936, in overruling appellants' motion to dismiss, and on the 16th day of December, 1936, overruling appellants' written demand for trial by jury with motion to transfer cause to assignment division, are not before this court for review, as appellants failed to except from said rulings. Kline Cloak & Suit Co. v. Morris, 240 S.W. 96; Martin v. Farmer, 15 P. 11. (a) When appellants fail to except to the action of the court in overruling motions, the order becomes res adjudicata, and the subsequent filing of similar motions and exceptions taken to the court's action in overruling the subsequent motions cannot revive the question. State ex rel. Lentz v. Fort, 178 Mo. 518, 77 S.W. 741; State ex rel. Mueller Furnace Co. v. Buckner, 207 Mo.App. 48, 229 S.W. 392; Johnson v. Latta, 84 Mo.App. 139; Wechsler v. Davis, 239 S.W. 554; Cantwell v. Johnson, 236 Mo. 575; Mobile Gas Company v. Patterson, 288 F. 884; Martin v. Farmer, 15 P. 11; Sloan v. Beard, 110 N.Y.S. 1, 125 A.D. 625; Palmer v. Mulligan, Coleman & Caines Reports, p. 423. (4) Pierce and Liberman were parties to the proceeding in the probate court, were aggrieved by the judgment of the probate court, and were persons interested in the estate of Walter G. Franz, and consequently had the right to appeal therefrom. Sec. 284, R. S. 1929; State ex rel. v. Shelton, 238 Mo. 281; R. S. 1929, secs. 1018, 1938; In re Switzer, 201 Mo. 66; State ex rel. v. Stone, 269 Mo. 334; Bell v. George, 275 Mo. 17. (a) By filing their petition joining in the petition of the administrator, Pierce and Liberman became parties to the proceeding for the approval of the agreement for fees or for the fixing of compensation. (b) The judgment of the probate court in legal effect was a final disposition of the subject matter of both petitions. 33 C. J., p. 1137; Webb v. Stevens, 14 Mo. 480; Perkinson v. Weber, 251 Mo. 196; Clark v. Mining Co., 209 S.W. 307; Wade v. Bank, 221 S.W. 364; Rhodes v. Gutman, ...