Richardson v. Tyson

• Citation: 86 N.W. 250,110 Wis. 572
• Parties: RICHARDSON v. TYSON ET AL.
• Decision Date: 20 May 1901
• Court: United States State Supreme Court of Wisconsin

110 Wis. 572

86 N.W. 250

RICHARDSON

v.TYSON ET AL.

Supreme Court of Wisconsin.

May 20, 1901.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Petition of Hamilton P. Richardson for compensation as guardian ad litem against Virginia C. Tyson and others, minor wards. From an order in favor of petitioner, defendants appeal. Reversed.

Appeal by general guardian from an order of the circuit court of Milwaukee county awarding compensation to Hamilton P. Richardson as guardian ad litem. In 1894 certain real estate vested in Virginia C. Tyson, now Ruggles, for life, with remainder to such of her children as she might appoint by will, and, in default of children, to unascertained beneficiaries, the value of which was, in round numbers, $150,000, had become seriously embarrassed by the failure of the life tenant to keep down taxes, and through the anticipation by her of the rents and profits, so that loss of the entire corpus of the estate was imminent. Her counsel, Mr. T. W. Spence, undertook to find some plan of relief. It first occurred to him that the trusts were invalid, so that Mrs. Tyson in fact held the fee, and he determined upon an application to the court for construction of the trust. He approached the respondent, a young lawyer of not very large practice or experience, but who had won Mr. Spence's confidence for ability, explained the situation to him, and proposed that he become the guardian ad litem for Mrs. Tyson's minor children, exhibiting to him Mr. Spence's own preliminary brief on the question of construction, and stating to him the expectation that they would desire to have the question ultimately passed upon by the supreme court; also explaining that he (Richardson) would be expected to thoroughly investigate and present the law as he found it in protection of the interests of the minors, which, technically at least, were adverse to the attempt to invalidate the trusts; and further explained that, as the estate was very poor, he desired an understanding of the extent of compensation which Mr. Richardson should receive for such services, and stated to him that he thought $250 as entire compensation for the services to be rendered by him in the circuit court, and another $250 in the supreme court, if the question went there, would, in view of the entire situation, be reasonable. To this Mr. Richardson assented, with the thought, unexpressed, as he now states, that such sum was to be paid by the plaintiff Mrs. Tyson, but that he would have a further claim in case he realized or preserved a fund for the minors. In the circuit court Mr. Richardson prepared and presented a very exhaustive brief, which is conceded by all parties to have very perfectly covered the ground, and presented the considerations in support of the trust fully and ably, upon which, as he testifies, he spent substantially two months of time. The trust was declared void by the circuit court. Mr. Richardson was paid by Mr. Spence $250, for which he gave a receipt, acknowledging it to be in full for his services as guardian ad litem in that court. Thereafter Mrs. Tyson, having married, through the medium of her husband, was brought in contact with other counsel than Mr. Spence, who were inclined to rest on the judgment of the circuit court. Mr. Richardson, being convinced that the rights of the minors had suffered by the judgment, persistently urged that the original plan should be carried out, and that those starting the proceedings should take the question to the supreme court. Two years having expired, and they not being inclined to do so, he asked that they waive the requirement of an undertaking, and permit him to appeal on behalf of the minors, urging as a reason therefor that it was a proper case for all costs to be defrayed out of the estate. This request was promptly refused by Mrs. Ruggles' new counsel, with intimations approximating threats that any compensation to him for further protraction of the litigation would be strenuously opposed, in terms which were understood to impugn Mr. Richardson's motives. He, however, did appeal, without undertaking, and was promptly met by a motion on behalf of the plaintiff Mrs. Ruggles to dismiss the appeal, and on behalf of a then appointed general guardian to dismiss him from his place as guardian ad litem. Upon this motion he prepared a brief, and, owing to the assault apparently made upon his motives and compensation, and possibility of error in his views as to the merits, he deemed it proper to submit the situation to older counsel, and did submit it to Mr. James G. Flanders, who concurred in his views as to the rights of the minors, and who, at his employment, adopting his brief, argued the motion to dismiss the appeal and to remove him, in defeating which he was successful. Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015. Thereafter Mr. Richardson wrote a brief, and argued the case on the merits in this court. The brief embodied about 40 pages, and consisted largely of the investigation made in circuit court, elaborated and perfected. He was entirely successful, this court holding the trusts valid, and directing a dismissal of the bill. Tyson v. Tyson, 96 Wis. 59, 71 N. W. 94. We, however, denied motion that all costs be paid out of the estate. Mr. Richardson then presented a petition for an allowance for his services and expenses, to be charged as a lien upon the remainder, which he had conserved. His right to any compensation, and the power of the circuit court to pass upon it, were at once assailed by the general guardian, represented by the same counsel as before. The circuit court denied the petition, whereupon Mr. Richardson appealed to this court, where he was represented by counsel, Mr. Charles E. Monroe. That appeal also was decided in his favor, and the matter remanded, with directions to the circuit court to ascertain and fix his compensation for services and expenses, and to constitute the same a lien upon the remainder, to be foreclosed in the manner indicated. Tyson v. Richardson, 103 Wis. 397, 79 N. W. 439. In the course of Mr. Richardson's investigation of the power of the court to reach this remainder for the purpose of compensating him, he discovered authorities in support of the power of a court of equity, having before it an estate, to bind by its judgment all interests, although some of them were contingent, and their owners not yet ascertained. The principles of these authorities were subsequently made the basis of a further procedure, in which Mr. Richardson did not participate, but which resulted in the accomplishment of Mr. Spence's original plan of disposing of the entire interest in a part of the land, and thereby producing a fund for the discharge of tax liens and the salvage of the balance of the property. Ruggles v. Tyson, 104 Wis. 500, 81 N. W. 367, 48 L. R. A. 809. After the decision in 103 Wis. 397, 79 N. W. 439, a trial was had upon the petition for allowance, in which Mr. Richardson continued to be represented by Mr. Monroe, and in which he was opposed by the general guardian, with counsel. The referee before whom the matter was tried fixed Mr. Richardson's total personal compensation at $3,000, less the $250 already paid him, and allowed him as disbursements $500 for Mr. Flanders' services, and $17.50 for traveling expenses, and also $650 for counsel fees of Mr. Monroe, with interest from July 19, 1897, when the petition for allowance was filed. Both parties moved for modification and change of the decision of the referee, and the circuit court, then presided over by a new judge, before whom Richardson's services had not been rendered, increased the allowance for personal compensation from $3,000 to $5,000, and added $50 to Mr. Monroe's counsel fees, to cover services on that motion,--all of which sums, with interest from the date fixed by the referee, amounted to $7,004.29 at the date of the order, October 30, 1900, which was adjudged to be a lien upon the interests of the remainder-men, and authorized to be foreclosed unless paid within a year. From that order the general guardian of the minors appeals.

Rollin B. Mallory, for appellant.

Charles C. Monroe, for respondent.

DODGE, J. (after stating the facts).

Many of the underlying principles upon which rest the rights of the claimant here, as also the limitations of those rights, are already decided, not only as the law of the state, but as the irrevocably adjudicated law of this case, in Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015, and Tyson v. Richardson, 103 Wis. 397, 79 N. W. 439. As most fundamental among these must be borne in mind that the infant is always the ward of every court wherein his rights or property are brought in jeopardy, and is entitled to most jealous care that no injustice be done him. The guardian ad litem is appointed merely to aid and enable the court to perform that duty of protection. Cole v. Superior Court, 63 Cal. 86, 89, 49 Am. Rep. 78. By circuit court rule 9, he must be an officer of that court, and that official character both supports him in the performance of his duties and limits his rights and conduct. His duties are of the highest character, especially when, as now, he is an attorney at law, owing not only fidelity and wisdom, but also the duty of investigation of the legal rights of his ward, and advocacy thereof. The performance of his important functions has already won for this claimant commendation from this court, and it is at the express wish of all of its members that the writer of this opinion reasserts approval of the loyalty to the wards' interests, the fearlessness and courage against severe opposition and at the sacrifice of personal comfort, and the distinguished industry and professional learning and ability which have characterized Mr. Richardson's performance of those official duties resulting from his appointment as guardian ad litem down to the time of presentation of his formal demand for compensation...