Peterson v. Ustrud

• Decision Date: 19 February 1931
• Docket Number: 7001
• Parties: OSMOND PETERSON, Succeeding Administrator of the Estate of Christoffer Peterson, Deceased, Appellant, v. E. C. USTRUD, Administrator of the Estate of Christoffer Peterson, Deceased, Respondent.
• Court: South Dakota Supreme Court

58 S.D. 76

234 N.W. 923

OSMOND PETERSON, Succeeding Administrator of the Estate of Christoffer Peterson, Deceased, Appellant, v. E. C. USTRUD, Administrator of the Estate of Christoffer Peterson, Deceased,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. W. N. Skinner, Judge

#7001—Reversed

Lewis W. Bicknell, Webster, SD

Attorney for Appellant.

Mark W. Sheafe, Jr., Watertown, SD

Attorney for Respondent.

Opinion filed Feb 19, 1931

MISER, C.

After the death of Christoffer Peterson, his brother, Osmond Peterson, who now appears as administrator of his estate and as appellant herein, filed a petition for letters of administration on the estate on behalf of himself and his brothers and sisters. Curtis Peterson, the illegitimate son of Christoffer Peterson, also petitioned for letters of administration. An agreement was made between Curtis Peterson and Mark W. Sheafe, Jr., whereby Sheafe was to act as the attorney for Curtis Peterson in establishing his right to inherit. The fees agreed upon were to be contingent. It was further agreed, “in consideration of said contingent fees, that second party (Sheafe) shall completely probate the estate of the said (Christoffer Peterson) deceased, in county court.” At the request of Curtis Peterson and his attorney, Sheafe, the respondent Ustrud joined in the petition of Curtis Peterson. On hearing, the county court denied the petition of Osmond Peterson, the brother, granted the petition of Curtis Peterson, the illegitimate son, and on his nomination, appointed respondent Ustrud administrator of the estate. An appeal was taken to the circuit court. In this proceeding Curtis claimed that he was legitimated in accordance with the provisions of section 211, RC 1919. However, the circuit court found that Christoffer Peterson never publicly acknowledged claimant; that having a home and a family he never received him into the same as his own child; and that he never treated him as though he were his own legitimate child, recognized him in any way, furnished any support, wrote to him, spoke to him, or in any way acted as though he knew said claimant existed. The circuit court concluded therefrom that Curtis Peterson was not legitimated nor adopted nor entitled to inherit, and ordered the county court to vacate the judgment by which Ustrud was appointed administrator. No appeal was taken from that order or decree of the circuit court, and thereafter the county court removed Ustrud as administrator and required him to file his final account as such.

In this final account Ustrud claimed allowance for a substantial amount paid to Sheafe as attorney’s fees. The new administrator, Osmond Peterson, objected to those items, on the grounds, among others, that Sheafe at all times appeared in said matter pursuant to employment by Curtis Peterson on a contingent basis and that Sheafe was entitled to no compensation for his services other than upon the terms of his contract with Curtis Peterson. The county court overruled these objections and allowed the attorney’s fees. On appeal, the circuit court affirmed the order of the county court. From the judgment of affirmance and from the order denying a new trial this appeal is taken.

The agreement between Sheafe and Curtis Peterson was in force throughout the entire time that Sheafe was rendering service in connection with the estate and antedated the employment of Sheafe by Ustrud by over 60 days. The attorney’s fees allowed to Sheafe by the county court and approved by the circuit court were $750. Under the contingent fee contract, Sheafe would have received a fee ranging from $10,000 to $20,000. Sheafe was already bound by contract with Curtis Peterson to perform the services for which Ustrud paid him. The question, however, is whether Ustrud, who was appointed administrator at the request of Curtis Peterson, is entitled to be credited with attorney’s fees paid to Sheafe:

Section 3363, RC 1919, is in part as follows:

“He [the executor or administrator] shall be allowed all necessary expenses in the care, management and settlement of the estate.”

In Besancon v. Wegner, it was held that an administratrix was entitled to reimbursement out of the assets of the estate for all reasonable expenses of administration thereof, including reasonable attorney’s fees for legal services necessarily rendered at her request. See also McGowan v. Milner, 195 Ala. 44, 70 So. 175; First Nat. Bank v. Watters, 201 Ala. 670, 79 So. 242, 244; In re Coleman, 106 SC 534, 91 S.E. 861; 24 CJ 48, 97, 100; In re Springer’s Estate, 79 Mont. 256, 255 P. 1058; Estate of Byrne, 122 Cal. 260, 54 P. 957, 1015; 11 Cal. Jur....