McDonald v. Pearson

• Decision Date: 09 February 1897
• Citation: 21 So. 534,114 Ala. 630
• Parties: MCDONALD ET AL. v. PEARSON.
• Court: Alabama Supreme Court

21 So. 534

114 Ala. 630

MCDONALD ET AL. v. PEARSON.

Supreme Court of Alabama

February 9, 1897

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Bill by T. C. McDonald and others against R. H. Pearson. A demurrer to the bill was sustained, and complainants appeal. Affirmed.

The complainants, who are the appellants here exhibited their original bill, in the nature of a bill of review, in the city court of Birmingham, against the appellee, whereby they sought to impeach and have set aside a decree of the city court rendered in favor of appellee. The facts averred in the bill were substantially stated as follows: The decree sought to be impeached was rendered in a cause in the city court, of McDonald v. McDonald, which was a suit brought by some of the complainants in this suit against W. J. McDonald, Sr. trustee under the will of Cynthia A. McDonald. That suit is described in the present bill as a suit against the trustee for an accounting and settlement of the administration of the trust estate. The proceedings are not fully or substantially set out in the bill, but its purposes and general character appear in the report of the case of McDonald v McDonald, 92 Ala. 537, 9 So. 195. A decree has been rendered in said cause directing the sum of $750 to be paid to appellee for attorney's fees "for services in said cause, and other services rendered by him to said W. J McDonald in and about the property,"-the trust estate. It is alleged in the bill that this decree was rendered by consent of complainants, acting through T. C. McDonald. Section 7 of the bill as amended thus states the circumstances of the rendition of the decree: "(7) And complainants further aver and charge that said consent obtained from T. C. McDonald, who was acting for himself and for the complainants, to allow said Pearson the sum of $750 was procured by the fraud and fraudulent representations of said R. H. Pearson in this, and under the following circumstances, to wit: [Then follows a recital of facts in reference to the consent decree in McDonald v. McDonald alluded to above.] Appellee was approached by T. C. McDonald with a view of obtaining from him his consent not to resist the entering up of such consent decree. Whereupon *** the said R. H. Pearson and the said T. C. McDonald, in the presence of A. O. Lane, who was solicitor of some of the complainants, including T. C. McDonald, had a conference in which the matter was discussed, and in which an agreement *** was arrived at, *** said Pearson being then the attorney of the trustee, and these complainants being beneficiaries of the trust under the will. Complainants charge and aver that *** then and there the said R. H. Pearson claimed and insisted, as a condition to his nonresistance, that he was to be paid for his services in the pending cause as well as what was due him for back services to the trustee, and he *** stated and represented to T. C. McDonald that W. J. McDonald Sr., as trustee, owed him over $1,000 for fees, and that he claimed and wanted it in the settlement. He also represented and stated that he had never been paid anything for services rendered for the estate, not even for writing the will of Cynthia A. McDonald. *** Whereupon, upon the said T. C. McDonald stating, in substance, that if said Pearson had been so tardy he ought to be barred by the statute of limitations, the said Pearson represented and stated, in substance, that while he had collected very little, yet he had collected enough to keep it from being barred, as he had collected small items from time to time, which had prevented it from being barred, which said representations and statements of said R. H. Pearson, as to the indebtedness of the trustee to him, and as to having collected nothing, or only small amounts, and as to having been paid nothing for writing will, were untrue, and the said R. H. Pearson had no reasonable grounds for believing that such statements were true, and the said T. C. McDonald, for himself and for complainants, relying upon the truth of such statements made by said R. H. Pearson, consented to allow him the sum of $750." It was further averred in the amended bill that on "the 22d day of June, 1891, a petition was filed in said cause in the name of W. J. McDonald, Sr., trustee, by R. H. Pearson, attorney, signed by the said R. H. Pearson, attorney, in his own handwriting, stating, among other things, in substance, that R. H. Pearson was entitled to be paid for legal services out of the trust estate, and that it be referred to the register *** to ascertain a reasonable and proper amount to be allowed said Pearson for his services in aid of the trustee and in aid of the estate." It is then alleged that, at the time the said petition was filed, T. C. McDonald, representing complainants, had already had the conference with appellee spoken of above and detailed in section 7, and had, upon said representations of appellee, agreed that appellee be allowed the sum of $750 "out of the said trust estate, and that a consent decree be taken for that amount, and said petition was filed in pursuance of that understanding, and for the purpose of having that amount decreed, in accordance with their agreement and understanding, made after and based upon" the said representation. It also averred that, after the petition was filed, a reference was had to the register on June 25th, and said T. C. McDonald "appeared before the register and deposed concerning the matters referred to the register in said decree of June 25, 1891," the matter so referred being, among other things, the ascertainment of claims of creditors. "His testimony as to the charges and claims of creditors, so far as the attorney's fees are concerned, was as follows: 'The following are just and proper charges of claims of creditors that should be paid out of the rents: *** Fee of Lane & White, attorneys for complainants in this cause [McDonald v. McDonald], *** $500. Fees of John M. Martin, *** $75. Fees of R. H. Pearson for services in this cause, and other services rendered by him to W. J. McDonald, Sr., in and about the property named in bill of complaint, $750."' The register made his report, and on the 27th day of June, 1891, the court entered a decree whereby W. J. McDonald, Sr., was removed as trustee, and T. C. McDonald and another of complainants were appointed as trustees; "and among other things it was further decreed that said [trustees] out of the rents *** were authorized and directed to pay R. H. Pearson *** $750." It is averred that, at the time the decree was rendered, W. J. McDonald, Sr., was non compos mentis, a guardian ad litem had been appointed for him, and it was known that his death was a matter of only a short time; and that, when T. C. McDonald gave his testimony before the register as aforesaid, he had no knowledge of the Status of appellee's claim against the trust estate, "except from statements and representations of R. H. Pearson, which he relied upon, and which he then believed to be true; and said testimony was given pro forma, as carrying out the agreement which the parties had reached as aforesaid." The amended bill further averred that, at the time of the "said consent" that said sum be "allowed the said W. J. McDonald, Sr., as attorney fees due said R. H. Pearson, they had no means of knowing, and did not know, how much was really due said R. H. Pearson for such services and attorney fees"; the said W. J. McDonald's papers "and accounts not being under the control of your orators and oratrice, and they having no means or opportunities of knowing how much, if any,-except from the representation of said R. H. Pearson,-was due him," except for services in the then pending case. They allege that, until after the death of W. J. McDonald, Sr., "his papers were in the custody of his wife, who was hostile to complainants, or some of them, and who would not allow complainants access to them." The bill as amended then proceeds to state that, after the death of W. J. McDonald, Sr., complainants came into possession of his papers, and "have discovered the fact that said R. H. Pearson *** had made out on the 16th day of January, 1885, his bill against the said W. J. McDonald, which was settled by note on the 4th day of June, 1888,"-a copy of the account being attached as Exhibit A to the bill; "and upon coming into possession of the papers of the said W. J. McDonald, trustee, complainants found two receipts, which the said R. H. Pearson had given to the said W. J. McDonald, in his own handwriting, showing that he had been paid $300 on said note" of June 4, 1888, and $50 on account of attorney's fees. Copies of the receipts are made Exhibits B and C. It will be observed that the $50 receipt, Exhibit C, is given to W. J. McDonald in his individual capacity, and the bill does not allege that the payment was by him as trustee. The bill does not negative the idea that Pearson had rendered services to the trustee after January, 1885, or after June, 1888, when the note was given. After finding these receipts, and some time after the decree was rendered, and after $600 was paid under it, T. C. McDonald called on appellee, and, without stating that the receipts had been found, asked appellee to furnish him with a statement of his fees, "so he could show the children the amount he had paid off with $750," and appellee furnished him with a statement, a copy of which is attached to the bill as Exhibit D. The prayer of the bill as amended is that the decree requiring $750 to be paid to appellee "be vacated and held for naught," and that the latter be required to refund and pay over to complainants the said sum, "or, if that may not be, that he be required to refund the amount received over and above the amount he was entitled to,"...