Kersey v. O'Day

• Decision Date: 31 March 1903
• Citation: 173 Mo. 560,73 S.W. 481
• Parties: KERSEY v. O'DAY.
• Court: Missouri Supreme Court

73 S.W. 481

173 Mo. 560

KERSEY v. O'DAY.

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

ATTORNEY — LIEN FOR SERVICES — EMPLOYMENT BY OTHER ATTORNEY—LIABILITY OF FUND RECOVERED — WITNESSES — COMPETENCY — TRANSACTIONS CONCERNING DECEDENT'S ESTATE.

1. An attorney rendering professional services in the collection of an inheritance for a minor has no lien on the claim for such services.

2. Where K. entered into a contract with the guardian of a minor to recover an inheritance due the minor from the estate of a grandparent in France, and agreed to pay all attorneys employed by him from his share of the proceeds of the fund to be recovered, the claim of an attorney so employed, for services rendered, was not enforceable against the fund or against the minor's estate, but was a personal claim against K.

3. Rev. St. 1899, § 4652, provides that, where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living, except as to acts since the probate of the will or the appointment of the administrator. Held, that where conversations testified to, between certain witnesses and a claimant against decedent's

estate, with reference to such claim, occurred prior to the probate of decedent's will, claimant was not a competent witness with reference thereto.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Benjamin Kersey, as executor of the estate of T. W. Kersey, deceased, against John O'Day, Jr., guardian and curator of Marie Bunel, in which John W. Jump filed an interplea. From a judgment dismissing the interplea, interpleader appeals. Affirmed.

On August 18, 1896, Benj. Kersey, as executor of Thomas W. Kersey, deceased, and R. M. Roper instituted suit in the circuit court of Greene county, Mo., against John O'Day, as guardian and curator of Marie Bunel, a minor, Marie Bunel, S. H. Horine, and E. Y. McClendon, to recover attorney's fees claimed to be due them in recovering an estate for the minors. At the May term, 1898, of said court, John W. Jump, appellant herein, by leave, filed an interplea in said cause. The interplea, in brief, averred that plaintiff Kersey was executor of Thos. W. Kersey, and in charge of his estate; that John O'Day was guardian and curator of Marie Bunel, and in charge of her estate; that one Dames Napoleon Bunel, the grandfather of the minor, died intestate in France in 1887, leaving a large estate, valued at about $500,000, of which the minor inherited about $130,000; that the minor lived with her mother, in Arkansas, in ignorance of or indifference to the estate, until in 1889 the plaintiff Roper advised her of the matter, when the mother employed Thos. W. Kersey to recover the estate of the minor, and Kersey and Roper agreed between themselves that they would procure the requisite testimony and take the necessary steps to recover for the minor her estate; that they caused the probate court of Greene county, Mo., to appoint S. H. Horine guardian and curator for the minor, and he qualified as such; that in January, 1890, the New York Life Insurance & Trust Company instituted suit in the Supreme Court of New York against all persons interested in the Bunel estate to have determined the question of the legitimacy of the minor Marie Bunel, and her right to share in the trust estate held by the plaintiff in said suit under a declaration of trust executed by said Dames Napoleon Bunel, and which trust estate amounted to about $200,000; that said suit was pending about four years, during all of which time said Kersey and Roper devoted to it all their time and attention in working up said case, taking depositions and preparing the same for trial, and in so doing they expended a large sum of money; that in said suit there was a decree, on November 23, 1893, from which no appeal was prosecuted, finding that said minor was the granddaughter of said Dames Napoleon Bunel, and entitled to a one-fourth interest in his estate; that the services of said Roper and Kersey were rendered pursuant to a contract made with said S. H. Horine, guardian and curator of the said minor. This contract was verbal in the first place, but afterward was reduced to writing, and was sanctioned and authorized by an order of the probate court of Greene county, Mo. The contract and order of the probate court are set out in full in the interpleading petition, and from the contract it appears that, in addition to the trust estate of said Dames Napoleon Bunel in the hands of the New York Life Insurance & Trust Company, there was an estate in France; that said Kersey was to receive one-half of all sums recovered by him for the minor, and was to pay all attorneys employed by him out of his share. After making these statements, the interpleader recites that said Thomas W. Kersey was insolvent, and unable to pay the expense of taking depositions, traveling, or the employment of counsel to further prosecute the collection of money due the minor in France, and about to give up the further prosecution of that claim, when he entered into a verbal contract with the interpleader "that he and said Jump should enter into a law partnership, and move from Springfield, Mo., to Louisiana, Mo., the former home of said Jump, that he might give bond as curator and guardian of said Marie Bunel." "By the terms of said verbal contract, about June 15, 1894, the said John W. Jump was to have an interest in the money the said Kersey collected for Marie Bunel in France; that is to say, the said Jump was to have $10,000 in the following way: $2,500 cash, and the use of $7,500 for ten years without interest." It is unnecessary to set out in detail all the testimony introduced in the trial upon appellant's interplea. It is sufficient to determine the disputed questions to simply say that there was testimony tending to establish the contract alleged in the interplea between the interpleader and Thomas W. Kersey, now deceased, and also testimony tending to show that there was no such contract. The cause was submitted to the court upon the evidence introduced, and its findings are fully indicated by the decree rendered, which is as follows: "Now at this day comes on to be heard the above-entitled cause, and, all the parties announcing `Ready for trial,' the court, sitting as a chancellor, heard all the evidence offered by the respective parties, plaintiffs and defendants, and at the close of the main suit, and before he made his findings, he heard all the testimony offered by the interpleader, John W. Jump, as well as the testimony offered by Benj. Kersey, executor of the last will of Thomas W. Kersey, deceased, in defense of the claim of said interpleader of an interest in the fund collected by the defendant John O'Day, guardian and curator of Marie Bunel in the French estate in France, whereon the said John W. Jump the interpleader, claimed the sum of ten thousand dollars due him as attorney's fees, and for money paid out and expended by said Jump in securing said fund by judgment and decree in France for said Marie Bunel, defendant. After hearing all the testimony in the case, the court found, in addition to the former advances made to the plaintiffs, R. M. Roper is entitled to fourteen thousand two hundred and fifty dollars; Benjamin Kersey, executor of the last will of Thomas W. Kersey, deceased, the sum of twelve thousand dollars; and the defendant E. Y. McClendon, the sum of seven hundred and fifty dollars—twenty-four thousand dollars of which is to be drawn from the New York part of the estate of said Marie Bunel, and three thousand dollars from the French estate. John O'Day having paid the said Thomas W. Kersey, now deceased, the sum of five hundred and seventy dollars on his services rendered in prosecuting the...