Miller v. Tracy

• Decision Date: 07 November 1893
• Parties: MILLER ET AL. v. TRACY.
• Court: Wisconsin Supreme Court

86 Wis. 330

56 N.W. 866

MILLER ET AL.

v.TRACY.

Supreme Court of Wisconsin.

Nov. 7, 1893.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Benjamin K. Miller, George H. Noyes, Benjamin K. Miller, Jr., and George P. Miller against George Tracy for compensation for services as attorneys. Judgment for plaintiffs. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover the sum of $552.02 for services rendered and disbursements made in successfully defending against a claim of about $11,000 against the estate of the defendant's intestate, William Swale, deceased, and the defendant appeals from a judgment rendered against him for the entire demand. Plaintiffs, the successors in interest of Finches, Lynde & Miller, who rendered the services and made the disbursements, claim that said firm had been employed by the defendant as administrator of Swale's estate to defend against the said claim filed against it, and the defendant denied this, and claimed that they had been employed for that purpose by the First National Bank, a creditor of the same estate for about $1,000. The referee found, in substance, among other things, that the First National Bank of Milwaukee was a creditor of said estate to the amount of about $1,000, and that the firm of Finches, Lynde & Miller were the regular attorneys of the said bank; that the defendant called at the office of said firm, and had a conversation with one of its members, which resulted in said firm assuming charge of the contest of the said claim for said estate; that the defendant did not, at the time of said conversation, nor at any other time, consciously and intentionally retain said firm to act as his attorneys in relation thereto, but at the time he believed that said firm was assuming charge of said contest as the attorneys for said bank, and the member of said firm with whom he had the conversation believed that he was retaining said firm as his attorneys in the matter; that there was not at any time any meeting of the minds of the defendant and said firm, or any one of them, upon the question of such employment, and said firm, believing in good faith that they had been retained by the defendant as such administrator, to contest said claim, proceeded with the contest, and, after trial in the superior court, succeeded in defeating it, saving to said estate for the beneficiaries thereof the sum of about $11,000 or $12,000; that said firm never had any knowledge or information that the defendant believed that they had been acting as the attorneys of the bank, or as the creditors of the estate, until after the services had been rendered, and said claim defeated, and they had sent their bill therefor to the defendant; that said firm was not retained by the First National Bank; that the defendant during all the time believed in good faith that said firm was acting as attorneys of the First National Bank, and not as his attorneys, and that said firm rendered the services and made the disbursements in the belief that they had been retained by the defendant, as such administrator; that the result of the contest was that the administrator of Swale's estate was enabled to and did pay in full all of the legitimate claims against said estate, and that he has still in his hands funds sufficient to pay the plaintiffs' claim. The circuit court confirmed the report, and gave judgment accordingly. Exceptions were taken to the finding by the defendant, but none were taken on the part of the plaintiffs.

Sylvester & Scheiber, for appellant.

Miller, Noyes & Miller, E. S. Mack, and F. A. Geiger, for respondents.

PINNEY, J., (after stating the facts).

1. The finding of the referee as to the facts is as favorable to the defendant, we think, as he could reasonably have expected, and, so far as his exceptions are concerned, it is so fully sustained by the evidence that no particular discussion of facts is required, except to say that upon the question whether the plaintiffs' assignors were employed by the bank the testimony is somewhat conflicting; but the referee, who saw and heard the witnesses testify, found against the defendant on this point, and the circuit court confirmed the finding. We think that there is a decided preponderance of evidence in support of the finding. As to the plaintiffs, the finding must be regarded in all respects as a verity, they having failed to take any exceptions to it. To take advantage of an erroneous finding in order to sustain a judgment in favor of the respondent he must have excepted to such finding, and he cannot for that purpose take advantage of exceptions reserved by the appellant. Rev. St. §§ 2870, 2875, 3070; Maxwell v. Hartmann, 50 Wis. 660, 8 N. W. Rep. 103;Witt v. Trustees, etc., 55 Wis. 376, 13 N. W. Rep. 261;Jones v. Jones, 64 Wis. 307, 25 N. W. Rep. 218;Hoey v. Pierron, 67 Wis. 267, 30 N. W. Rep. 692;Cramer v. Hanaford, 53 Wis. 85, 10 N. W. Rep. 15.

2. The legal title or ownership of the personal estate of the intestate, Swale, vested in the defendant as his administrator on his appointment and qualification, and he held this property as the trustee and representative of all persons interested therein, whether as creditors or distributees, for the purposes of proper and legal administration of it according to the priorities and rights of the parties in interest, and a valid title to the personal estate of the decedent could be acquired only through such administration. Schouler, Ex'rs, § 239; Estate of Kirkendall, 43 Wis. 179; Murphy v. Hanrahan, 50 Wis. 485, 490, 7 N. W. Rep. 436;Melms v. Pfister, 59 Wis. 192, 18 N. W. Rep. 255. The duty of collecting, protecting, and caring for the estate was devolved on the administrator by reason of his trust ownership. And it was his duty “to defend the estate against claims which he honestly, or upon reasonable grounds,...