McIntosh v. Brown

• Decision Date: 15 February 1913
• Citation: 139 N.W. 926,159 Iowa 41
• Parties: MCINTOSH ET AL. v. BROWN.
• Court: Iowa Supreme Court

159 Iowa 41

139 N.W. 926

MCINTOSH ET AL.

v.BROWN.

Supreme Court of Iowa.

Feb. 15, 1913.

Appeal from District Court, Warren County; Lorin N. Hayes, Judge.

From an order denying a temporary writ of injunction, the plaintiff appeals. Affirmed.O. M. Brockett, of Des Moines, for appellants.

Berry & Watson, of Indianola, for appellee.

LADD, J.

The plaintiffs are the sole residuary legatees and devisees under the will of Nancy B. McIntosh, deceased, admitted to probate August 13, 1910, and the defendant is the executor of the estate left by her. Prior to her death a contract was entered into by decedent and defendant in words following: “This memorandum of agreement is to witness that whereas, O. C. Brown has rendered me valuable assistance in the management of my farm during the past seven years, and has attended to renting the same for me, and has attended to making the repairs on the same and collecting the rents from year to year, and has advised me during said time in all business affairs only a part of which he has been paid for, and whereas, it is necessary that I retain him in my employ as my attorney and legal adviser in my affairs and in the management of my farm as heretofore, and whereas, I have executed my last will and have appointed said O. C. Brown my executor therein, now therefore, in settlement for his said services and in consideration for said future services and also in consideration of his acting as said executor of my last will, I hereby promise and agree for myself, my heirs and executor that he shall have five per cent. of all property of which I may die seized, the same to be paid to him in cash, six months after the date of my death, and the said O. C. Brown is not to charge any additional amount as commission as such executor's services. Signed June 25, 1909. Nancy B. McIntosh. O. C. Brown.”

On September 5, 1911, defendant filed his claim for $1,250 as owing him under this agreement, and on the same day E. B. Dowell was appointed special administrator to act thereon. Service of notice that this claim would come on for hearing and determination September 18, 1911, was acknowledged by the special administrator on the following day, and November 6, 1911, this action was begun, alleging facts as recited, that the stipulated compensation is greatly in excess of the reasonable value of services rendered deceased and fees to which defendant would be entitled as administrator, that he concealed said contract from plaintiffs until same was filed, thereby obviating objections to his appointment which they would have interposed, and that said contract is inequitable and voidable, if not absolutely void, for that it was concealed as stated, was procured of decedent when relationship of attorney and client existed, stipulates for compensation other than that prescribed by law, and for compensation which is grossly excessive. It is alleged, further, that prosecution of the claim would delay the settlement of the estate which but for it is ready for settlement, that its prosecution at law would entail great expense, and that plaintiffs have no plain, speedy, and adequate remedy at law. Plaintiffs prayed that defendant be temporarily restrained from prosecuting his claim in the probate court, and, on final hearing, the contract be canceled and for other equitable relief. The court...