Papin v. Papin, 55866

Decision Date10 January 1972
Docket NumberNo. 2,No. 55866,55866,2
Citation475 S.W.2d 73
PartiesPierre L. PAPIN, Jr. et al., Appellants, and St. Louis Union Trust Company, Appellant, v. Allen Cottrell Ashley PAPIN et al., Respondents
CourtMissouri Supreme Court

Isaac C. Orr, Laura Andreas, St. Louis, for appellants, Pierre L. Papin, Jr., Gerard A. Papin, and Nicholas B. Papin.

R. H. McRoberts, R. H. McRoberts, Jr., St. Louis, for appellant, St. Louis Union Trust Co.

Orville Richardson, St. Louis, for respondents.

STOCKARD, Commissioner.

This is an appeal from the judgment of the Circuit Court of St. Louis City allowing attorneys' fees to respondents in the amount of $17,500. The notice of appeal was filed prior to September 11, 1970, the effective date of § 477.040, V.A.M.S., which was also prior to the effective date of the current provisions of Art. V, § 3, Constitution of Missouri, V.A.M.S. Appellate jurisdiction is in this court. Art. V, § 31 Constitution of Missouri.

A detailed statement of the facts giving rise to this litigation is set forth in Papin v. Papin, Mo., 445 S.W.2d 350, but a summary thereof is essential to an understanding of the issues here presented.

Harry E. Papin, Sr. created two trusts wherein it was provided that after his death the income was to be paid to his widow during her lifetime and then to his two sons, Pierre and Harry, Jr. At the death of a son, one half of the corpus of the trust estates was to be paid to his 'descendants,' if any, and if none then to the descendants of the grantor.

Pierre Papin died in 1964, and one half of the corpus of each trust was divided between his three sons, Pierre, Jr., Gerard, and Nicholas. Harry Papin, Jr. and Grace Papin, his wife, had no children. But, on June 18, 1964, by decree of the Circuit Court of the City of St. Louis they adopted Allen Cottrell Ashley, then age 22, who was a nephew of Grace Papin. Harry Papin, Jr. died on July 15, 1964. Thereafter, Allen Cottrell Papin made demand on St. Louis Union Trust Company, the trustee, for disposition to him of the corpus of the trusts of which Harry E. Papin, Jr. had been the life tenant.

Suit was filed by Pierre, Gerard and Nicholas Papin in which they sought a construction of the trust agreements and instructions to the trustee as to the proper distribution of the trust estates. They also sought to have the adoption of Allen Cottrell Papin set aside as having been made by reason of undue influence, coercion, and fraud. The trial court held that Allen Cottrell Papin was not a 'descendant' of Harry Papin, Jr. to qualify him to receive that share of the corpus of the trusts of which Harry Papin, Jr. was life tenant. The count in which the adoption was challenged was dismissed by the trial court, and the plaintiffs did not appeal from that judgment. Allen Cottrell Papin appealed from that part of the judgment adverse to him, and the judgment of the trial court was affirmed. Papin v. Papin, Mo., 445 S.W.2d 350.

In plaintiffs' petition and in the answer of the trustee in the suit above referred to, an allowance for attorneys' fees was requested. At the conclusion of the trial the court made an allowance to the trustee for attorneys' fees for services 'through the dates of the hearing of this case,' and in its judgment the trial court retained jurisdiction 'for the purpose of determining the issues related to an allowance (to named counsel) as attorneys for plaintiffs in connection with the institution and prosecution of this action, including the fixing of the amount of such allowance, said amount to be paid out of the corpus of the trust.' The effect of this was to order a separate trial on all issues except those retained, Civil Rule 66.02, V.A.M.R., and to constitute the judgment entered thereon a separate judgment for purposes of appeal. Civil Rule 82.06, V.A.M.R. Defendants made no request for the allowance of attorneys' fees in their pleadings or by motion to the court. Upon affirmance by this court of the judgment of the trial court that Allen Cottrell Papin was not entitled to the corpus of the trusts of which his adoptive father was life tenant, the mandate, in its material parts, provided that 'the judgment * * * by the said Circuit Court of the City of St. Louis be in all things affirmed and stand in full force and effect, * * *.'

After the mandate of this court was received by the trial court, the defendants, other than the trustee, requested and obtained permission to amend their answer to ask for attorneys' fees and expenses, and after a hearing the trial court allowed them attorneys' fees in the amount of $17,500 and expenses in the amount of $1,148.75 to be paid from the corpus of the trusts. This is an appeal from the judgment making that allowance.

Appellants first contend that in the circumstances of this case the trial court had no jurisdiction to permit respondents 'to amend their answer to include a request for allowance of attorneys' fees,' and also that the mandate of this court is controlling and it provided no basis for the trial court to make an allowance for attorneys' fees to respondents. Assuming this contention to be correct as to the allowance of attorneys' fees, it would also apply to the allowance of $1,148.75 for expenses. However, we note that appellants' contention on this appeal is limited to the allowance of attorneys' fees.

We are of the opinion that the trial court was without authority to award attorney fees under the circumstances of this case.

The judgment of the trial court, in its parts material to the issues now being considered, was that (1) the trustee should pay the undistributed income and corpus of each trust to plaintiffs in equal shares; (2) the count challenging the adoption was dismissed; (3) the trustee was allowed counsel fees to be paid from the trust estates; and (4) 'the Court will retain jurisdiction of this cause for the purpose of determining the issues related to an allowance to Isaac C. Orr, Henry B. Pflager and Laura Andreas for compensation for their services as attorneys for plaintiffs in connection with the institution and prosecution tof this action, including the fixing of the amount of such allowance, said amount to be paid out of the corpus of the trust.' The mandate of this court was that 'the judgment aforesaid, in form aforesaid, by the said Circuit Court of the City of St. Louis rendered, be in all things affirmed, and stand in full force and effect, and that the said respondents (plaintiffs) recover against appellants (defendants) their costs and charges herein expended and have therefor execution.'

Where the case is decided on appeal on its merits and no issue after rescript is raised on the record, the only function of the trial court is to enter a final decree in implicit accordance with the mandate of the appellate court.' 5B C.J.S. Appeal and Error § 1978, p. 616. In this case the trial court needed only to file the mandate; no further decree by it was required because the direction of the mandate was that the judgment previously entered by the trial court 'be in all things affirmed and stand in full force and effect.' By reason of that judgment, the trial court had the 'power and duty to enforce it, by execution or otherwise, as it finally stands or should stand, without variation; and where the judgment in the lower court definitely determines the rights of the parties, and it is affirmed, any...

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