Roberts v. Vaughn

• Decision Date: 18 March 1920
• Citation: 219 S.W. 1034
• Parties: ROBERTS v. VAUGHN.
• Court: Tennessee Supreme Court

Page 1034

219 S.W. 1034

ROBERTS v. VAUGHN.

Supreme Court of Tennessee.

March 18, 1920.

Certiorari to Court of Civil Appeals.

Contest of the will of Joab Sayers by Robert Sayers, by his next friend, A. B. Vaughn, resisted by T. B. Roberts, executor. From the judgment, the executor appealed to the Court of Civil Appeals, which affirmed, and the executor brings certiorari. Affirmed.

E. M. Hearn, of Franklin, McCorkle & White and W. C. Cherry and McCarley & Stephenson, all of Nashville, for Roberts.

M. H. Meeks and Frank P. Bond, both of Nashville, for Vaughn.

LANSDEN, C. J.

This case originated in the circuit court of Williamson county, and was appealed to the Court of Civil Appeals. A petition for certiorari has been filed to correct the judgment of the latter court, and while many questions are discussed in the case, we think only three need be presented in this opinion.

Joab Sayers died testate in Williamson county, and willed all of his property to his brothers and sisters. He was the father of one child, Robert Sayers, but had been divorced from his wife a few years before his death. He was the owner of a large estate, both real and personal, which amounted to over $50,000. The next friend of the minor child, Robert Sayers, instituted a contest of the will. There were three trials in the circuit court of this case, and the trial resulted in a verdict by the juries against the will and in favor of the infant plaintiff, Robert Sayers. After the verdict in the last trial the circuit judge granted a peremptory instruction and dismissed the suit. An appeal was taken therefrom to the Court of Civil Appeals, which court reversed and remanded the judgment of the circuit court, and directed that court to enter a judgment upon the last verdict of the jury. The case was then brought to this court upon petition for certiorari, and the judgment of the Court of Civil Appeals was modified to the extent of remanding the case for another trial. Upon the remand a compromise was reached between the next friend and the executor, acting for the devisees, and this compromise was fully presented to the circuit judge and approved by him. There is no complaint now at the terms or the manner of the compromise.

A judgment of the court was rendered upon the compromise, and this judgment embraced all of its terms, so that the case, as it comes to us, is an agreed judgment based upon the compromise agreement of the parties. This eliminates all questions which could be made upon the authority of the next friend to bind the infant by an agreement to the compromise. The compromise provided that the next friend should be reimbursed his actual expenses paid out of pocket, and in addition it provided that he was to be paid for his personal services. It also provided for paying counsel for the infant out of the infant's part of the estate. It is reasonably clear that counsel can be paid out of the proceeds of the real estate only, the personal estate being consumed in other charges, which were agreed to and made the judgment of the circuit court.

The circuit court referred the case to the clerk of his court, to report, among other things, what would be a reasonable fee for the next friend and the counsel for the infant employed by the next friend.

The question, made by proper assignment of error, as to whether the next friend is entitled to compensation for his personal services, is remarkably free of previous adjudication. There seems to be no doubt in the authorities but what the next friend is entitled to be reimbursed expenses actually paid. 14 R. C. L. 288, 289.

The facts of this case show beyond doubt that the infant secured a valuable estate by the services of the next friend. This was a necessity, and the infant is liable for all necessaries. McIsaac v. Adams, 190 Mass. 117, 79 N. E. 654, 112 Am. St. Rep. 321; 5 Ann. Cas. 729. Owens et al. v. Gunther, 75 Ark. 37, 86 S. W. 851, 5 Ann. Cas. 130; Wheaton v. East, 5 Yerg. 61, 26 Am. Dec. 251; White v. Flora, 2 Tenn. (2 Overt.) 426, Scott v. Buchanan, 11 Humph. 471. But whether the next friend is entitled to compensation for personal services is not free from doubt. Any one who is willing to be bound for costs can become next friend of an infant to procure any right in the court which the infant has. Stephenson v. Stephenson, 3 Hayw. 123; Miles v. Kaigler, 10 Yerg. 10, 30 Am. Dec. 425; Benton v. Pope, 5 Humph. 393. This was provided by the statute of Westminster that in certain cases the infant might sue by next friend, but now by common practice any person may sue as next friend by giving bond for cost, although the court in its discretion may dismiss the suit, or appoint another next friend, if it deems the one suing to be an improper person. Green v. Harrison, 3 Sneed, 132. The next friend has full power to act for the purpose of securing the infant's rights, and may do all things that are necessary to this end. He may appoint counsel for the infant, although the infant is incapable of employing one for himself. Green v. Harrison, 3 Sneed, 132. His power as next friend is strictly limited to the performance of the precise duty imposed upon him by law. He is expected to represent the infant, see that the witnesses are present at the trial of the infant's case, and to do all other things which are necessary to the infant's success. In such cases we see no reason why he should not have compensation for personal services performed within the powers granted him by law. The court, however, should closely peruse the case, and especially the services claimed, and be convinced by clear and satisfactory proof that the services have been rendered for which compensation is asked, and that these services fall within the general powers granted by the law to a next friend. The next friend's account for personal services against the infant should be scrutinized closely. He is always under the control of the court, and can be removed from his office by the court whenever it is deemed to be to the interest of the infant that such be done. In this case, Mr. Vaughn rendered unexceptionable services to the infant, and prosecuted the suit to secure the infant's rights with great vigor and alertness. We think the amount allowed him is reasonable and well earned.

A question is made that a new trial should have been granted in order to allow the next friend to more fully prove that he made a contract with one of the counsel for the amount of his services, and upon a contingent basis. The trial judge refused to grant a new trial for this reason, and the Court of Civil Appeals affirmed the trial judge. We think there was no error in this action. The next friend cannot contract with counsel for the amount of his fees so as to bind the minor. Cole v. Superior Court, 63 Cal. 86, 49 Am. Rep. 78. It is immaterial if the next friend did make a contract for the amount of counsel fees. Such fees must be allowed by the court after an investigation of their value. See the note of 97 Am. St. Rep. 1002. The attorney in such cases has been likened to an attorney appointed by the court to defend a criminal, and his rights are subject to the subsequent action of the court in fixing his compensation. Cole v. Superior Court, supra; Richardson v. Tyson, 110 Wis. 572, 86 N. W. 250, 84 Am. St. Rep. 937.

It is said by appellant that the circuit court was without jurisdiction to refer the case to the clerk for the purpose of fixing the amount of counsel fees, among other things. The argument is, in substance, that the will contest in the circuit court presented the single question of will or no will, and the court could not refer the case to the clerk for the purpose of ascertaining the facts and adjudicating rights upon the matters of compromise, such as fees of counsel, and allowance for services of the next friend, and the like. It is said that these are matters of administration which belong to the county court, and not to the circuit court, and no agreement of the parties could confer jurisdiction upon the court to determine these issues. It is a court of law without jurisdiction of such matters of administration, and its decree based upon the agreement of the parties is void. The Court of Civil Appeals was of opinion that jurisdiction of these matters was conferred upon the circuit court by sections 6063 and 6074 of Shannon's Annotated Code. Said sections being as follows:

"The circuit courts of this state are courts of general jurisdiction, and the judges thereof shall administer right and justice according to law, in all cases where the jurisdiction is not conferred upon another tribunal."

"Any suit of an equitable nature, brought in the circuit court where objection has not been taken by demurrer to the jurisdiction, may be transferred to the chancery court of the county or district, or heard and determined by the circuit court upon the principles of a court of equity, with power to order and take all proper accounts, and otherwise to perform the functions of a chancery court."

The circuit court is a court of general jurisdiction, and, among other things, it has jurisdiction to try an issue of devisavit vel non. Such was the nature of this case, and the will was transmitted by the county court to the circuit court for the trial of this issue. After three trials, and an appeal to the Court of Civil Appeals, and a petition for certiorari to this court, the case was remanded for another trial. The circuit court plainly had jurisdiction to do this. The parties effected a compromise of the issue, which provided, among other things, that a verdict should be entered, setting up the will, and also that a certain division of the estate should be made between the contestants and the contestees. Because the contestant was an infant he could not bind himself by the compromise at all, unless it was to his advantage. Therefore, it was necessary to submit the compromise to the circuit judge, and have his approval on...