Jones v. Lewis

• Decision Date: 01 January 1854
• Citation: 11 Tex. 359
• Parties: JONES, ADM'R, v. LEWIS.
• Court: Texas Supreme Court

11 Tex. 359

JONES, ADM'R,

v.LEWIS.

Supreme Court of Texas.

1854.

An estate is liable to an attorney at law, to pay a reasonable price for necessary professional services, rendered at the instance of the administrator. (Note 56.)

The general rule is that the pay for services, including those of an attorney, is due as soon as the service is rendered, and the statute of limitations begins to run immediately; this does not apply to particular acts of service, where there has been an entire contract to perform a continuous service, as, for example, to advise and assist an administrator in the settlement of an estate, or to prosecute, or defend a suit to final judgment; in such cases the pay is not due until the service is terminated by performance or by discharge of the attorney.

It seems, that demands against an estate, which accrue after the decease of the testator or intestate, must be presented to the administrator for allowance, and to the Chief Justice for approval.

It seems, that under a general retainer of an attorney at law, to attend to all of a man's business, without stipulation as to time and mode of payment, the fee for each act of service, would be due as soon as the service was rendered, and the statute of limitations would begin to run immediately.

If an administrator should employ an attorney, by a continuous and entire contract, to advise and assist in the settlement of the estate, for a certain compensation, and die, resign, or be removed, and the new administrator should continue the attorney in his service, the presumption would be, that the first contract was continued or ratified; but the law will not raise a presumption of such contract with the former administrator; and in the absence of proof of its having been made, the attorney would be entitled to demand compensation for his services, as they were performed; and the statute of limitations would run accordingly.

Appeal from Matagorda. This suit was brought to recover professional sertices rendered, as an Attorney and Counselor at law, to Kingston, in his life time, and to three several administrations on his estate. The first administration on the estate of Kingston was granted to Thomas Pilkington, on the 20th May, 1845, who continued as such until his death, some time before the 23d February, 1846, as on that day administration was granted to Jacob Quick, who held the appointment until his death, some time before the 25th January, 1847; and on that day administration was granted to Catharine Quick, afterward Catharine James, who held it until some time before the 25th January, 1849, when the administration was granted to Jones, the defendant. The account, for the different services, was made out and presented to Jones, the present administrator de bonis non of the estate of Thomas Kingston, and by him rejected; and the suit was commenced thereafter, within three months from the time of the presentation and rejection of the claim.

The defendant, among other defenses, set up the statute of limitation of two years, in bar of the plaintiff's action. There were various charges asked by the defendant, and denied by the Court, and exceptions taken to the ruling of the Court in the progress of the trial. The Court charged the jury, “That if it appeared that plaintiff was the attorney of the estate of Kingston, deceased, generally, from the time of the appointment of the first administrator, in 1845, up to the time he was discharged as such attorney, in 1849, by Mrs. James, who administered on said estate for the third time, limitation did not begin to run, as to any of his charges for attorney's fees against said estate, until the time of his dischange, in 1849.”

The jury returned a verdict for the plaintiff, on which a judgment was rendered; and the defendant appealed.

Allen & Hale, for appellant. I. The demurrer should have been sustained. The remedy of the plaintiff, as against the estate, is given and regulated by the Probate Act of 1848, and must conform to its provisions. That Act seems to require, in the only Section in which it speaks of attorney's fees, the allowance of the Chief Justice: and this is not alleged to have been given. (Hart. Dig., Art. 1188.)

II. The first, second, fourth, sixth, and seventh charges asked by the defendant, should have been given, and the charge actually given, as stated in the second bill of exceptions, should have been modified accordingly. The error of the Court below consists in supposing that an estate of succession, under our statutes, is a fictitious judicial person, capable in law of making contracts, and that therefore Lewis was, when employed by the first administrator, at once made the attorney of the estate, and so continued through all the intervening administrations and interregnums until discharged. This might be true, under the Roman and Spanish law, which regarded the unadministered estate, hereditas jacens, as a representative of the deceased, and a kind of moral person; but this fiction of the law was peculiar to those systems of jurisprudence, and was not adopted by the Common Law. (Davis' Heirs v. Elkins et al., 9 La. R., 135; Angell on Lim., 55-58.) The Common Law, on the contrary, made the administrator--not the estate--the representative and successor of the deceased; and vested the personal property at once in him. (2 Wheat. Selwyn, 782.) And our system of the administration of estates is to be interpreted and controlled by the Common Law. (Hart. Dig., Art. 127, 1244.)

It is the administrator, therefore, and not the estate, who employs attorneys for the necessary management of suits relating to the property of the decedent; and such employment, as in other cases, must cease with the death or resignation of the principal. It follows that the services rendered by Lewis to the successive administrators of the estate of Kingston, were not continuons, but distinct--that his demand for his fees accrued immediately on the expiration of each administration, and constituted a separate claim against the estate, which ought to have been presented within the period prescribed by law to the succeeding administrator for allowance, and that the period of limitation commenced to run, as to each item, from the time of the close of the administration in which that item accrued. The three first entries in the account were consequently barred, as well as the remaining items which were for distinct services rendered more than two years before the suit. (5 La. R., 12.)

III. The tenth and eleventh charges should have been given. The plaintiff, having collected money...