Irvine v. Stevenson

• Decision Date: 18 February 1919
• Citation: 183 Ky. 305,209 S.W. 7
• Parties: IRVINE ET AL. v. STEVENSON ET AL.
• Court: Kentucky Court of Appeals

209 S.W. 7

183 Ky. 305

IRVINE ET AL. v. STEVENSON ET AL.

Court of Appeals of Kentucky.

February 18, 1919

Appeal from Circuit Court, Madison County.

Action by J. M. Stevenson against William Irvine and others, in which J. C. Chenault filed a cross-petition. Judgment for plaintiff and cross-petitioner, and defendants appeal. Affirmed.

G Murray Smith, of Richmond, for appellants.

J. J Greenleaf and John Noland, both of Richmond, for appellees.

HURT J.

Harry Crawford died intestate, on the 10th day of February, 1911 leaving, surviving him, a daughter, Mollie Black, who was the wife of Gen. E. Black, and the mother of an infant son, Harry Crawford Black. Bettie Irvine was the mother of two illegitimate sons, William Irvine and Marcus Irvine, whom she claimed were the natural children of Harry Crawford. William Irvine and Marcus Irvine were then, and are now, infants. On the 27th day of October, 1908, Harry Crawford executed a deed to Mollie Black and her son, Harry Crawford Black, by which he conveyed to them a farm, containing 300 acres, in Clark county. He instituted a proceeding in the Clark circuit court, for the purpose of adopting William Irvine and Marcus Irvine as his heirs at law. On September 23, 1909, he executed a deed, by which he conveyed to his daughter, Mollie Black, and his grandson, Harry Crawford Black, one-third of 781 acres of land in Madison county, and on the same day he conveyed two-thirds of the 781 acres in Madison county to William Irvine and Marcus Irvine. He conveyed to each of them a certain portion of the lands, but, with the condition that, in the event of the death of either, without issue, before arriving at the age of 21 years, the interest conveyed to him should pass to the other. Following the execution of the deeds, on the 30th day of September, 1909, a judgment was rendered, in the proceeding by Harry Crawford to adopt the two Irvine children as his heirs, granting the relief asked.

After the death of Crawford, the lands in Madison county were divided between Mollie Black and her son and the two Irvines, and deeds were made, under a judgment of the circuit court, by which the commissioner of the court conveyed to William Irvine 281.62 acres of the lands, and to Marcus Irvine 221.12 acres of the lands. Bettie Irvine was appointed and qualified as the statutory guardian of William and Marcus Irvine, and as such had in her hands a promissory note for the sum of $8,619.76, of which the interest owned by one of her wards was $4,277.40, and the interest owned by the other was $4,342.36, all of which they received as the heirs, by adoption, of Harry Crawford.

Thereafter, in February, 1915, one Anna Karnes, claiming to be a legitimate daughter of Harry Crawford, instituted a suit in the Clark circuit court against Mollie Black, Harry Crawford Black, Bettie Irvine, as guardian, and her two wards, William Irvine and Marcus Irvine, and by which she claimed that she and Mollie Black were the only heirs of Harry Crawford, and that as such each were entitled to one-half of his estate; that the deeds made by Crawford, by which he had conveyed the lands previous to his death, were invalid, because they were made at a time when he was mentally incapable of knowing what he did, or the force or effect of his acts; that he was unduly influenced to secure the decree of the Clark circuit court, by which William and Marcus Irvine were adopted as his heirs, by the exercise of an undue influence upon him by Bettie Irvine at a time when he was decrepit in health and mentally incapable of knowing the character or quality of his acts, and prayed that the decree of adoption be declared void, and that the deeds executed to them by Harry Crawford be canceled and declared void, and that the personal property in the hands of their guardian, and all the real estate of which Harry Crawford died the owner, and that which he had conveyed to Mollie Black and her son, and to William and Marcus Irvine, be divided equally between Mollie Black and herself.

Bettie Irvine, as the guardian for William and Marcus Irvine, contracted with two lawyers, J. M. Stevenson and J. C. Chenault, to represent her as guardian, and to defend the action for her wards. The contract was reduced to writing and signed by the parties, and by its terms it was agreed that the lawyers would attend to the preparation of the defense to the case, and take all necessary legal steps for the protection of the interests of the wards, in the circuit court, and in the event of an adverse judgment would prosecute an appeal to the Court of Appeals.

A retainer of $100 was to be paid, and the lawyers were also to be paid fees, to be agreed upon by the parties, and if an agreement could not be made, then the fees should be fixed by the judge of the court, or the Madison county court. The lawyers were also to be paid their actual expenses incurred in the preparation of the action for trial. On the 4th day of April, 1916, the action ended by an agreed judgment of the circuit court, by which the action was dismissed, and each party was adjudged to pay the costs created by him. Afterward a motion was made by the plaintiff to set aside the judgment, but this motion was defeated and overruled. Under its terms the contract of employment of the attorneys thus ended. Ball v. Lively, 2 J. J. Marsh. 181; Richardson v. Talbot, 2 Bibb, 382.

Stevenson and the guardian then agreed upon a fee to be paid to Stevenson of $2,500 for his services, but Chenault and the guardian were unable to agree, and the guardian failed to perform the agreement made with Stevenson.

This action was brought by Stevenson against William and Marcus Irvine, and Bettie Irvine, as their guardian, to recover against the estates of the infants, and to be paid out of their estate, a fee for his services in defending the suit of Karnes against them, in the sum of $2,500, and $85, his actual expenses in the preparation of the action for trial. John C. Chenault was made a party defendant, and by a cross-petition set up a claim for his fees in the same cause, and his actual expenses. The petition described the real estate and personal property owned by each of the infants, and asserted a lien thereon to secure the payment of the fee sued for, and the cross-petition of Chenault contained similar averments. The guardian, by answer, put in issue the reasonableness of the amounts of the fees sued for, and denied the accounts for expenses, and thereafter offered to confess a judgment for $1,250 to Stevenson, and a like sum in favor of the cross-petitioner, Chenault, with certain sums, theretofore paid, to be deducted.

The court, after the hearing of a large quantity of evidence fixed the amount of the recovery, in favor of Stevenson for his services and expenses at $2,085, and in favor of Chenault the sum of $942 for his services and expenses, deducting sums already paid. It was further adjudged that the estate of each infant was to pay one-half of the sums for which a recovery was adjudged, and that their estates were bound for the payment, and for the purpose of enforcing the payments that the note in the hands of the guardian should be sold in satisfaction of the judgment, and if from the sale of the...