In re Lutz Estate
| Decision Date | 04 May 1914 |
| Docket Number | No. 10833.,10833. |
| Citation | 181 Mo. App. 267,170 S.W. 334 |
| Parties | In re LUTZ'S ESTATE. ZEIDLER v. SCHNEIDER et al. |
| Court | Missouri Court of Appeals |
In a proceeding on the final settlement of an estate, the probate court allowed the administrator's claim for commissions as permanent administrator, notwithstanding an agreement, relied on as a defense, that he would accept in lieu of such commissions the amount due him as temporary administrator. On the trial in the circuit court of an appeal by the estate, his counsel stated that he was not claiming for services rendered as temporary administrator, and that it was not necessary to go into that question. Held, that, though the circuit court properly disallowed his claim to commissions as permanent administrator, the matter should be remanded to it to ascertain what would be a reasonable fee for the services as temporary administrator, as under Rev. St. 1909, § 296, requiring the circuit court on appeal from the probate court to hear, try, and determine the cause anew without regarding any error, defect, or imperfection in the proceedings of the probate court, that court should have rendered such judgment as the probate court should have made, and the disclaimer of any claim to fees as temporary administrator, at a time when he was claiming fees as a permanent administrator, which necessarily included the lesser claim, should not defeat his right to the fees to which the defense in effect admitted he was entitled.
Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.
Proceeding in the matter of the estate of Theresia Lutz by John L. Zeidler, administrator, against J. C. Schneider, trustee of the estate of Theresia Lutz, and others. From a judgment disallowing the administrator's claim for commissions, he appeals. Modified on rehearing and remanded, with directions.
John E. Dolman, of St. Joseph, for appellant. Vinton Pike, Eugene Silverman, and C. F. Strop, all of St. Joseph, for respondents.
This is a suit by John L. Zeidler for commissions claimed by him as administrator of the estate of Theresia Lutz, deceased. The probate court allowed him $6,845.45. The estate appealed to the circuit court, where the claim was disallowed. The administrator appealed.
On August 5, 1909, Theresia Lutz died, leaving a will in which J. G. Schneider was named as executor. Mrs. Lutz was a widow and left one child, a son, Henry Lutz. The will created a spendthrift trust in favor of this son, and made Schneider, the executor, trustee thereof, with many delicate and discretionary powers of large extent and wide range. At the time of testatrix's death Mr. Schneider was in Europe on a vacation. The executor named in the will being absent, Henry Lutz filed a renunciation of his right to administer, and the probate court on August 21, 1909, appointed the appellant, John L. Zeidler, temporary administrator to act in accordance with the statute until the return of the executor, Mr. Schneider. The latter returned about the middle of September, 1909, and, on the 17th of that month filed his application in the probate court, asking that the estate be turned over to him in accordance with the will, which made him executor without bond. Prior to Schneider's return, the son, Henry Lutz, greatly dissatisfied with the large discretionary powers given to Schneider in the management of the trust, employed Vinton Pike to see whether or not a contest should be instituted to set the will aside. Upon investigation, however, they found this would be useless, and so informed the temporary administrator, Zeidler, who at that time was claiming to be friendly to Henry Lutz, and willing and anxious to do anything he could in the latter's behalf. Schneider was demanding that the estate be turned over to him as executor of the will. Mr. Pike, as attorney for Henry Lutz, suggested to Mr. Schneider that no one ought to exercise the delicate and large discretionary powers contained in the will, especially when the beneficiary of the trust created therein was dissatisfied therewith; that it would be much safer for him, Schneider, and better for all parties, if Schneider would administer the estate and the trust contained in the will as a trustee, appointed by and under the guidance and direction of the circuit court as a court of equity. Henry Lutz, the beneficiary in the trust, and the other devisees under the will were willing that Schneider should act if under the control of a court of equity, and Schneider realized that he would be in a much safer situation if he had the protection of such a court. Thereupon it was proposed that if Schneider would not be made executor, but would administer the estate through a court of equity, the appointment of Mr. Schneider as trustee would be recommended to the circuit court, and the estate would be forthwith delivered to Schneider as such trustee, and he would not lose any commissions on account of not acting as executor, since they would be allowed to him by the circuit court the same as they would be by the probate court if he were appointed executor. The understanding was that if this arrangement was made, the entire estate, less such part thereof as would be needed in the payment of possible future debts and the payment of costs, would be immediately turned over by the temporary administrator to Mr. Schneider, trustee, as soon as he was appointed, and Mr. Zeidler would be appointed permanent administrator to close the administration as a mere matter of form and accept as his pay only the commissions due him as temporary administrator. The son, Henry Lutz, and the other devisees and Mr. Schneider favored this arrangement, and the proposition was laid before the temporary administrator, Mr. Zeidler. In addition to being a warm friend of Henry Lutz and apparently desirous of doing whatever would promote his welfare, Mr. Zeidler was in this position: He was only temporary administrator. If the arrangement proposed to be made was not entered into, he would be immediately displaced by the executor named in the will, and he, Zeidler, would, in any event, receive compensation only for his services as temporary administrator. He, therefore, assented to the arrangement after a full discussion and understanding of it. Mr. Schneider, however, would not proceed to carry out his part of the arrangement until a written agreement was entered into by Zeidler, binding him to the arrangement. Zeidler signed the written agreement demanded of him, and simultaneously therewith Schneider withdrew, or dropped, his demand to be made executor, and was appointed trustee by the circuit court, all of these being simultaneous but different parts of one and the same agreement or understanding. The entire estate was thereupon turned over to Schneider, trustee, except $3,000, and the probate court made an order confirming the appointment of Zeidler as permanent administrator. The estate was turned over to Schneider, trustee, "upon the express condition that so much of the estate shall be refunded if required in the future to pay any indebtedness that may hereafter be recovered against the administrator pending administration of said estate, including costs and expenses of administration, and upon the further condition, that the trust estate assume the specific legacies provided for in said will." After the estate was turned over to Schneider, the probate court sustained a motion filed by Zeidler to reduce his bond to correspond with double the amount he had retained in his hands as administrator. The only reason for Zeidler continuing as administrator was to formally close the estate in due time according to the statute. And, as stated, the understanding was that he would make no charge except such as he would be allowed for acting as temporary administrator. The agreement signed by Zeidler, above referred to, is as follows:
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