In re Woods

• Decision Date: 23 February 1929
• Citation: 13 S.W.2d 800,158 Tenn. 383
• Parties: In re WOODS.
• Court: Tennessee Supreme Court

13 S.W.2d 800

158 Tenn. 383

In re WOODS.

Supreme Court of Tennessee.

February 23, 1929

Certiorari to Court of Appeals, on Appeal from Chancery Court, Wilson County; J. W. Stout, Chancellor.

Suit by Mallie Woods to recover from an attorney a fund paid to Edgar Woods, complainant's guardian. A decree for complainant was affirmed by the Court of Appeals, and both parties bring certiorari. Judgment rendered for complainant.

T. G Hinson, of Lebanon, for complainant.

Louis Chambers, of Lebanon, for defendant.

GREEN C.J.

This suit was brought by Mallie Woods, shortly after attaining his majority, to recover from an attorney at law a certain fund the property of Mallie Woods, paid to his guardian during his minority, and alleged to have been lost and dissipated through the negligence of said attorney and overcharges by said attorney. There was a decree in favor of Woods by the chancellor for part of the fund, and this decree, for a somewhat reduced amount, was affirmed by the Court of Appeals. Both parties have filed petitions for certiorari which have been granted, and the case has been argued here.

Woods was a son of Herschel Woods, who lived near Watertown, in Wilson county. Shortly after Woods' birth in 1905, his mother died, and his father removed to Cincinnati, where he found employment with a railroad company. During the latter part of the year 1912 Herschel Woods, the father, was killed in an accident at Cincinnati. He had married again, and his second wife and widow employed an attorney in Cincinnati to bring suit for damages against the railroad on account of her husband's death. There seems to have been some doubt as to whether the death happened under such circumstances as to render the railroad company liable, and the widow's attorney compromised the claim against the railroad company for $1,750. The record indicates that the efforts of the widow's attorney procured this compromise, and that it was a fair settlement, all things considered.

The family of Herschel Woods, near Watertown, learned of his death and employed the attorney herein to represent the interests of Mallie Woods, the only child of either marriage left by Herschel Woods. The attorney went to Cincinnati, investigated the matter, and procured another lawyer there to co-operate with him. It was found that, when Herschel Woods obtained his marriage license, preparatory to his second marriage in Ohio, he represented himself as not having been married before. His Cincinnati wife knew nothing of his first marriage, nor of the child he had left in Tennessee. It was necessary, therefore, for the Tennessee lawyer and his associate to make proof about the Tennessee marriage and the child, which they apparently did to the satisfaction of all parties at Cincinnati.

The $1,750 collected by the widow's attorney seems to have been paid into the probate court at Cincinnati. That court allowed the widow's attorney a fee of $500, directed the payment of certain funeral expenses, and perhaps other expenses incident to the death of Herschel Woods, and divided the remainder of the fund between the widow of Herschel Woods and Mallie Woods, the child in Tennessee.

Under the advice of the attorney here involved, one Edgar Woods, an uncle of Mallie Woods, qualified as guardian of the latter in the county court of Wilson county. A copy of his credentials was presented to the probate court at Cincinnati, and the child's part of the aforesaid fund was turned over to said attorney in the form of a check, amounting to $541.33, payable to his guardian.

As appears from an order of the county court of Wilson county, entered March 3, 1913, the guardian, Edgar Woods, and the attorney appeared in that court and offered the resignation of said guardian. The order recited that the court was of opinion it was best for the minor that said resignation be accepted, and it was accepted and the guardianship terminated. It then appears from the order that said Edgar Woods, through the said attorney, paid into that court the sum of $541.33, the entire fund collected on behalf of the minor.

A paper was offered in evidence in the form of a minute entry. This paper was found in a minute book of the Wilson county court by the present clerk of that court. It, however, had never been entered on the minutes. The present clerk testified that the paper had been apparently written on an old typewriter in use in the office during the term of his predecessor. Other proof indicates that this order had been prepared for entry on the minutes of the county court and approved by the county judge, but had failed of entry, perhaps by oversight.

The paper just referred to sets out that Edgar Woods, guardian, and the attorney involved, had entered into a contract whereby the attorney was to have one-half of any recovery secured by him for Mallie Woods on account of the death of the latter's father. It was then ordered that the clerk of the county court pay to said attorney the sum of $270.66. It is conceded by all parties that such payment was made by the clerk to said attorney. The paper mentioned further set out that Edgar Woods, guardian, had paid out for the minor some $12.25, and that said Edgar Woods should be allowed compensation of $25, and it was ordered that the clerk of the court pay to Edgar Woods the sum of $37.25. Edgar Woods denies that he received this $37.25, but a later minute entry indicates beyond doubt that such sum of $37.25 was paid out of the fund to some one.

Another minute entry of the county court of Wilson county on April 7, 1913, recites that there is a balance of said fund in said court amounting to $233.42. The order continues: "And it further appears that there is an indebtedness against the estate of Herschel Woods, dec'd, consisting of the following items, names, etc., to wit: An account due W. J. Enoch of $11.00; an account due Edgar Woods to the amount of $77.00; said items have been legally sworn to and is hereby ordered paid by the court."

The order then directs the clerk to hold as a fee for the handling of the fund the sum of $10.82. It appears that this sum was paid to a young lawyer at Lebanon, not a party to this case. Thereupon said order of April 7, 1913, provided: "This shows a net amount due said ward, Mallie Wood, of $134.60, same being a fund less than $150, and on motion * * * the name of Steven Welch has been suggested and recommended as a good and suitable man to pay this fund to, he being the stepfather of said minor, to be expended for the care, protection, education, etc., for this minor child, Mallie Woods, a boy about six years of age, and the court is pleased to grant said motion, and it is ordered and decreed that the clerk will pay over the said sum of $134.60 to the said Steve Welch," etc.

The payment to Steve Welch, as indicated, completed the distribution of the fund. Thus were the affairs of this minor administered in the county court of Wilson county, and nothing further was done until this suit was brought after he reached his majority.

It should perhaps be stated in this connection that Steve Welch, referred to in the order last mentioned, was the stepgrandfather of Mallie Woods, instead of his stepfather, as therein stated.

The defendant attorney gives as a reason for paying this fund into the county court that he did not regard the bond of the guardian as strong. The statutes prescribe the procedure that he should have followed under such circumstances, if the guardian was not able to give a better bond. Thompson's-Shannon's Code, § 4320, §§ 3973, 3974. These statutes were a part of chapter 141 of the Acts of 1851-52, were contained in the Code of 1858, and have appeared in every subsequent compilation of our statutes. It has been settled in...