Mccormick v. Elsea

• Citation: 59 S.E. 411,107 Va. 472
• Parties: McCORMICK. v. ELSEA et al.
• Decision Date: 21 November 1907
• Court: Supreme Court of Virginia

59 S.E. 411

107 Va. 472

McCORMICK.

v.ELSEA et al.

Supreme Court of Appeals of Virginia.

Nov. 21. 1907.

1. Wills—Contest—Attorney's Fees — Liability.

Except in rare instances the power of a court to require one party to contribute to the fees of the counsel of another party must be confined to cases where plaintiff, suing in behalf of himself and others of the same class, discovers or creates a fund which inures to the common benefit; but the discretion should never beexercised in a cause where the interests of the party whose funds are sought to be charged are antagonistic to the party for whose benefit the suit is prosecuted.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 891-894.]

2. Same.

Plaintiff, an attorney, was employed by the executor of a will to sue in the name of certain of the heirs, who claimed under the will as sole devisees and legatees, to establish the same; the remaining heirs being made defendants. The will was established, but left only land to the heirs plaintiff represented. This land had been sold by testatrix after executing the will, and no assets came into the executor's hands by virtue of his office; testatrix not having disposed of her personal estate by the will. Held, that plaintiff was not entitled, under his contract with the executor, to a fee out of the assets of the estate which passed to the defendants.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 891-894.]

Appeal from Circuit Court, Clarke County.

Claim by Marshall McCormick against Robert E. Elsea and others, distributees of the estate of Letitia Elsea, deceased, for legal services in establishing the will of decedent. From a decree rejecting the claim, said McCormick appeals. Affirmed.

F. B. Whiting, for appellant.

A. Moore, Jr., for appellees.

WHITTLE, J. This controversy arose out of a suit in equity brought by Mary E. Smallwood (one of nine distributees of the estate of her mother, Letitia Elsea, deceased) and her daughter, Lillian Smallwood, against the administrator and remaining distributees.

The objects of the suit will appear from the material allegations of the bill, which are as follows: That Albert Elsea died intestate in August, 1903, survived by his widow, Letitia Elsea, eight children, and a granddaughter, the child of a deceased son; that the decedent left a valuable estate, real and personal, and that W. W. Smallwood, the husband of Mary E. Smallwood, qualified as his administrator; that shortly after his death W. W. Smallwood, in his own right and as administrator, and the plaintiff, Mary E. Smallwood, brought suit against his widow and distributees for the purpose of administering his estate; that the widow died testate about one month after her husband, survived by the distributees above mentioned; that by her will the testatrix devised a tract of land and bequeathed her entire personal estate to the plaintiff, Mary E. Smallwood, for life, with remainder to her coplaintiff, Lillian Smallwood, in fee; that this real estate had been conveyed to Albert Elsea in trust for his wife, and that after the execution of the will the trustee sold the land, his wife uniting in the conveyance to the purchaser, and deposited the purchase money in bank to his individual credit; that this fund, together with the one-third interest of the wife in the personal estate of her late husband, constituted her estate and passed to the plaintiffs by the provisions of her will; that the administrator of Letitia Elsea had already asserted claim to the purchase price of the land as a debt against the estate of the husband; and that the will had been lost...