In re Thomasson's Estate

• Decision Date: 05 April 1943
• Docket Number: 36823
• Parties: In re Estate of Hugh Thomasson, deceased: Taylor R. Young and P. H. Cullen, Respondents, v. The Boatmen's National Bank of St. Louis, Executor of the Estate of Hugh W. Thomasson, deceased, Appellant
• Court: Missouri Supreme Court

171 S.W.2d 553

350 Mo. 1157

In re Estate of Hugh Thomasson, deceased: Taylor R. Young and P. H. Cullen, Respondents, v. The Boatmen's National Bank of St. Louis, Executor of the Estate of Hugh W. Thomasson, deceased, Appellant

No. 36823

Supreme Court of Missouri

April 5, 1943

[Copyrighted Material Omitted]

Rehearing Denied May 4, 1943.

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

Affirmed.

Franklin E. Reagan, James V. Frank and Chas. Claflin Allen, Jr., for appellant.

(1) A petition by an attorney for an administrator may be filed by the attorney with the probate court asking for an allowance, but where the administrator employing the attorney is removed the request must be made by the attorney prior to settlement by the administrator employing him. Matson & May v. Pearson, 121 Mo.App. 120; R. S. 1929, sec. 221. (2) The settlement of the administratrices to date of revocation of letters is a final judgment, and has the same conclusiveness as a final settlement made at the completion of the administration. R. S. 1929, sec. 49; State ex rel. Richardson v. Allen, 224 S.W. 11; State v. Gray, 106 Mo. 526; State ex rel. v. Shacklett, 115 Mo.App. 715; State ex rel. v. American Surety Co., 231 Mo.App. 491, 104 S.W.2d 755. (3) The judgment of the probate court approving the final settlement is binding and conclusive not only as to the items actually referred to therein, but as to every item which could have been considered. Spratt v. Early, 199 Mo. 491; Patterson v. Booth, 103 Mo. 402, 419; Michie v. Grainger, 149 Mo.App. 301. (4) Where the lawyer has an interest in the subject matter of a lawsuit in which he represents his client, he is as much bound by the judgment as if joined as a party. Bell v. George, 275 Mo. 17, 204 S.W. 516; Titus v. North Kansas City Development Co., 264 Mo. 229, 174 S.W. 432; State ex rel. v. Stone, 269 Mo. 334, 190 S.W. 601; Wilson v. Drainage District, 257 Mo. 266; Davidson v. Real Estate & Inv. Co., 249 Mo. 474; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396. (5) Under our statute, as to attorneys' fees and other administration expenses, it is sufficient that the item of credit in the administrator's settlement be charged without having previously been paid. R. S. 1929, sec. 221; In re Couts, 87 Cal. 480; Smith v. Rhodes, 68 N.E. 7; Hoke v. Hoke, 12 W.Va. 427. (6) Under the contracts made with the heirs in 1931, these claimants agreed to perform all the services for which they now claim compensation from the estate for the contingent compensation of 50 per cent of whatever amount the heirs at law might eventually receive. In view of this agreement, it was not proper for the administratrices to agree to pay them any further fees. Such agreement was without consideration, and if they performed any services otherwise compensable out of the estate, such allowance to them would be unreasonable and unjust, in violation of Section 2059, R. S. 1929. In re Peterson's Estate, 234 N.W. 923; In re Barriero's Estate, 14 P.2d 786; R. S. 1929, sec. 2059. (7) Upon the death of the testator or ancestor title to the real estate instantly descends to the heir or devisee and the administrator or executor has no power or duty to defend the title, nor to employ counsel to do so. Chambers, Adm., v. Wright's Heirs, 40 Mo. 482; Thorp v. Miller, 137 Mo. 231; Grant v. Hathaway, 215 Mo. 141; McQuitty v. Wilhite, 218 Mo. 586. (8) The statutes authorize the probate court to empower the administrator to do two things in connection with real estate: (a) To sell land when needed to pay debts, and (b) to take possession and rent the land. These are naked powers and do not amount to a title or interest in the land itself and do not authorize the administrator to file a suit to quiet the title, or to purchase adverse claims to the title to the real estate. Chambers, Adm., v. Wright's Heirs, 40 Mo. 482; Thorp v. Miller, 137 Mo. 231; Grant v. Hathaway, 215 Mo. 141; McQuitty v. Wilhite, 218 Mo. 586. (9) The claimants having alleged in their petition that Thomasson was insane at the time he executed the deeds to this woman, Grace Thomasson, and the claimants having also so testified, they are bound by those allegations and the testimony to that effect in this case, and those deeds, therefore, conveyed no title to this woman for which they could properly pay her $ 50,000. In the Matter of Estate of Hugh W. Thomasson, Decd.; S. C. Rogers v. Boatmen's National Bank, etc. (Supreme Court of Missouri, Div. 1, not yet reported). (10) The administrator has no right to employ counsel at the expense of the estate in the interest of persons claiming the right to the distribution of the estate against other claimants or to determine as between the claimants who is entitled to distribution or to the inheritance, and attorney's fees for the purpose of defeating the claim of an alleged widow, however fraudulent, are not allowable against the estate. The expense of determining who is entitled to the property between conflicting claimants cannot be charged to the estate. In re Soulard's Estate, 141 Mo. 642; In re Estate of Maria S. Fry, 96 Mo.App. 208; Woerner on American Law of Administration, sec. 516; In re Settlement of Peters, 128 Mo.App. 666; Skinner v. Whitlow, 184 Mo.App. 229. (11) An administrator is not entitled to an allowance for attorneys' fees for services rendered in defense of the personal interest of the administrator in asserting or defending the right to administer or for any services actually rendered in the personal interest of the administrator. Baker v. St. Louis Union Trust Co., 234 S.W. 858; Dyess v. Rowe, 177 S.W. 522. (12) Under the evidence in this case services for which the claimants seek fees were actually performed to obtain for their clients distribution of the estate as Thomasson's heirs at law under the original contracts, which services culminated in their taking a deed from this woman, naming as beneficiaries therein their clients and themselves under the 50 per cent contracts, although they knew that Thomasson had made a will devising the property to the school fund of the State of Missouri. (13) Under the undisputed testimony in this case the record title to the property stood in the name of Conrad E. Frederick in trust for Hugh W. Thomasson, and if it had been necessary or proper to obtain any deeds for the purpose of restoring this property to Thomasson's estate, a deed from Frederick would have accomplished that. (14) The judgment allowing the claimants $ 42,500 was excessive, and in fact their services were not beneficial to the estate and therefore not allowable. R. S. 1929, sec. 2059. (15) The statements that the value of the estate was $ 750,000, made by the Attorney General in his brief in the prohibition suit, to which the defendant here was not a party, were not admissible and their admission over the objection of the defendant was prejudicial error, particularly as there was no other competent evidence of the value of this estate, and the opinions as to the value of the services given by the lawyers called as expert witnesses were all based on this improper evidence as to the value of the estate. Leeper v. Maguire, 57 Mo. 360; 22 C. J., sec. 409; Zimmerman v. Beatson, 39 Ind.App. 664, 79 N.E. 518; Adm. of Gray v. Cottrell, 19 S.C. 38.

Elliott W. Major, Clem F. Storckman and Cullen Coil for respondents.

(1) A claim for legal services rendered an administrator is an expense of administration and may be presented and allowed any time before final settlement, even though the estate has passed into the hands of a successor administrator. Sec. 221 R. S. 1929; Hoffmeyer v. Mintert, 93 S.W.2d 894; Dooley v. Welsh, Admx., 172 Mo.App. 528; In re Carlin's Estate, 47 S.W.2d 213; Crow v. Lutz, 175 Mo.App. 427; Nichols v. Reyburn, 55 Mo.App. 1; Scott v. Crews, 72 Mo. 261; State ex rel. Crane v. Heinrichs, 82 Mo. 542; Lamb-Davis Lbr. Co. v. Stowell, 164 P. 593, L. R. A. 1917E, 966. (2) Probate courts in this State are courts of record and have jurisdiction of all matters pertaining to probate business, including the power to make allowances to attorneys for the estate after the settlement to revocation by the administratrices who employed said attorneys and the power to order such allowance paid as an expense of administration. Rules of the Probate Court of the City of St. Louis, Mo., Rule 12; Secs. 189, 190, R. S. 1929; Sec. 34, Art. VI, Constitution of Mo.; State ex rel. Semple v. Garesche, 200 S.W. 735; Matson & May v. Pearson, 121 Mo.App. 120; Beekman v. Richardson, 150 Mo. 430; Grace v. Lee, 57 S.W.2d 1095; Secs. 206, 225, 2059, R. S. 1929; Linn County Bank v. Clifton, 263 Mo. 200, 214; Wood & Oliver v. Ellis, 12 Mo. 616; Drain v. Wilson, 200 P. 581; State ex rel. v. Bird, 253 Mo. 580; Stanton v. Johnson's Estate, 177 Mo.App. 54; Thompson v. Thompson, 217 S.W. 863; Jones v. Peterson, 72 S.W.2d 76; Hewitt v. Duncan's Estate, 43 S.W.2d 87, 226 Mo.App. 254. (3) Where an administrator in good faith and with ordinary prudence employs a lawyer to render legal service to the estate, and the lawyer renders the service in good faith and with reasonable skill and care, the employment is for the benefit of the estate and the lawyer is entitled to be compensated out of the assets of the estate. Dooley v. Welsh, Admx., 172 Mo.App. 528; In re Carlin's Estate, 47 S.W.2d 213; Matson & May v. Pearson, 121 Mo.App. 120; Mecartney v. Guardian Trust Co., 274 Mo. 224; Mayhall v. Stoecker, 191 S.W. 1118. (4) The filing and approval of the settlement to revocation is not a bar to recovery of attorney fees by the administratrices' attorneys because: (a) Where attorney fees or other charges against an estate have not been paid, the administratrices have no right or duty to include such items in the...