Matson & May v. Pearson
| Decision Date | 11 December 1906 |
| Citation | 97 S.W. 983,121 Mo.App. 120 |
| Parties | MATSON & MAY, Respondents, v. PEARSON, Administrator, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Louisiana Court of Common Pleas.--Hon. David H. Eby Judge.
AFFIRMED IN PART AND REVERSED IN PART.
STATEMENT.--The plaintiffs are attorneys at law and practicing their profession under the firm name of Matson & May, at Louisiana Missouri. They are also engaged in the real estate business under the same firm name. The defendant is administrator de bonis non with the will annexed of James Lonergan, deceased. The suit is by bill in equity, whereby the plaintiffs seek to recover against the defendant administrator de bonis non, on account of services alleged to have been rendered by the plaintiffs in their capacity as attorneys at law and real estate agents at the instance and request of Col. Patrick F Lonergan, who was the original executor of James Lonergan's estate and the immediate predecessor of the present defendant, administrator de bonis non. It is alleged that the services, the reasonable value of which are sued for in the bill, were rendered by the plaintiffs for the benefit of the estate and the funds thereof and the bill prays that the court make an order upon the defendant, administrator de bonis non, directing him to pay the same out of the funds of said estate in his hands.
The material facts are, about October, 1903, James Lonergan Esq., a resident of Pike county, Missouri, departed this life testate. At the time of his decease, he was possessed of an estate valued at about $ 5,000, consisting principally of lands situated in said county. By his last will and testament, he nominated and appointed his brother, Col Patrick F. Lonergan, executor thereof without bond, etc. The will, having been duly probated, letters testamentary thereon were duly issued to said executor and he qualified as such October 26, 1903; inventoried the estate within a few days thereafter and proceeded to execute the will. Col. Patrick F. Lonergan, the executor, was quite old and in failing health, and therefore he found it necessary to make a trip to California, which he did in January, 1904, succeeding his qualification as executor in October, 1903; and desiring to be relieved of the responsibilities of the estate for these reasons, placed his resignation as executor thereof in the hands of his attorneys, the plaintiffs, to be presented to the probate court of Pike county at its February term, 1904. This was not done by them, however, inasmuch as a controversy arose which made it seem proper to the plaintiffs to withhold the same temporarily and a letter having been received from Col. Lonergan directing them to withhold the resignation, the same was never filed. In the month of April, however, the present defendant, Dr. Donnell Pearson, having purchased from the heirs their title to the estate, subject to its indebtedness, obtained from Col. Lonergan and presented to the probate court, his resignation, whereupon Dr. Pearson was appointed administrator de bonis non with the will annexed. Col. Lonergan's health did not improve. He intended to return to his home in Louisiana about May 25th but died in California a short time after his resignation and prior to the date set for his homecoming. During his absence in that State and prior to his resignation, plaintiffs counselled and advised him by letter, etc., as executor, and performed certain legal services at his instance. They were also employed as real estate brokers by him as executor to find a purchaser for the lands of the deceased, which he was authorized by the will to sell and they found a purchaser therefor in due time at a price in excess of that at which the lands were being held, which purchaser and price were acceptable to Col. Lonergan. He declined to consummate the sale to this purchaser, however, for the reason hereafter given. The will of James Lonergan, deceased, conferred upon Col. Lonergan, as executor, the authority to sell the lands in broad terms as follows: "My said executor shall sell to the best advantage all personal property, real estate, and mixed property of my estate at either private or public sale as he may think best, and as soon after my death as he may do so to advantage and on such terms as my said executor shall think best." At the time of the resignation of Col. Lonergan as executor, he had neither sold the lands nor had he paid out or distributed the $ 200 or $ 300 in his hands arising out of the sale of personal property and presumably therefore made no claim for commissions as executor allowed by the statute. At any rate, he made no claim for commissions and none were allowed him by the probate court.
As said before, plaintiffs sued the administrator de bonis non in equity. Their bill is in two counts, reciting the history of the matter in substance as above set forth, etc., in each count. The first count avers that Col. Lonergan, upon qualifying as executor, employed them as attorneys and counsellors at law to advise and counsel him with respect to the legal phases of the management of the estate, etc., and sets out a bill of items for services alleged to have been rendered by them to the estate in accordance with such employment, the sum total of which amounts to $ 250. It avers that all of such services were rendered for the benefit of the estate and the funds thereof and the parties interested therein; that they have not been compensated therefor; that the same is due and unpaid, etc., and concludes as follows: "The plaintiffs therefore pray that the said sum of two hundred and fifty dollars ($ 250) may be ordered by the court to be paid to them by defendant out of the funds in his hands belonging to the estate of said James Lonergan, deceased, together with interest and costs." The second count, after alleging all proper matters of inducement, etc., and that the present defendant, administrator de bonis non succeeded Col. Lonergan in charge of the estate, avers that under the will of James Lonergan, deceased, his executor, Col. P. F. Lonergan was duly authorized and empowered to sell to the best advantage all real estate belonging to the estate of said James Lonergan, deceased, at either public or private sale as such executor might think best, as soon after the death of said James Lonergan as said executor might do so to advantage and upon such terms as such executor might think best, etc., that in pursuance to this power and by way of effectuating the same, Col. Lonergan employed the plaintiffs in their capacity of real estate agents to find a purchaser for such lands and to accept bids thereon, etc.; that the lands mentioned consisted of one hundred and forty-five acres in Pike county, Missouri; that plaintiffs, in compliance with such employment as real estate agents, devoted time and labor in that behalf and procured a purchaser, one G. J. Oliver, for such lands, who was ready, able and willing to purchase the same at the price of $ 4,700; that such price was far in excess of the price at which either the executor or the legatees under the will asked or anticipated such lands could be sold for; that plaintiffs communicated the offer and the name of the purchaser in due time to Col Lonergan, the executor, and fully performed the conditions of their employment, etc.; that the executor declined to execute the deed and consummate the sale, wherefore they allege that the estate of which Col. Lonergan was executor, became indebted to them in the sum of $ 235, the reasonable and customary commissions of real estate agents in that community; that such services were performed for the benefit of the estate, its funds and the parties interested therein; that the same was a reasonable and proper expense of the management and disposition of the real estate in accordance with the terms of the will. The count concludes as follows: "Wherefore plaintiffs pray that the said sum of two hundred and thirty-five dollars ($ 235) may be ordered by the court to be paid by the defendant out of the funds in his hands belonging to the estate of said James Lonergan, deceased, together with interest and costs."
The answer admits the defendant to be the administrator de bonis non as alleged; that he has qualified and is acting as such, and denies each and every other allegation in the bill.
The evidence introduced on the part of the plaintiffs tended to prove the allegations of the bill as contained in both counts thereof. The court found against the plaintiffs on all of the items of the account stated in the first count, except the last, and on this item found for them. By so doing, it found that the plaintiffs were employed by Col. Lonergan to counsel and advise him and look after the legal phases of the estate while he was absent in California from January 14th to April 22d, the date of his resignation; that they rendered services to the estate under such employment as attorneys by writing letters and otherwise; that such services were beneficial to the estate; that their reasonable value was $ 50, for which amount judgment was given on the first count.
The evidence under the second count tended to prove that the executor, Col. Lonergan, authorized the plaintiffs as real estate agents to procure a purchaser for the lands, etc that they exerted themselves in that behalf and procured a purchaser who was ready and willing and amply able to purchase the same at $ 4,700; that this was more than either the executor or the heirs were asking for the lands; that this bid and the name of the proposed purchaser, G. J. Oliver, were communicated to Col. Lonergan forthwith, which appeared to be entirely satisfactory to him, but was declined in a letter from him to plaintiffs of date April 26th, in which he said in...
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