Sluggett v. Phillips

• Decision Date: 07 March 1944
• Docket Number: No. 26531.,26531.
• Citation: 178 S.W.2d 458
• Parties: SLUGGETT v. PHILLIPS.
• Court: Missouri Court of Appeals

178 S.W.2d 458

SLUGGETT v. PHILLIPS.

No. 26531.

St. Louis Court of Appeals. Missouri.

March 7, 1944.

As Modified on Denial of Rehearing March 24, 1944.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Proceeding by John T. Sluggett, Jr., against Maurice P. Phillips, guardian ad litem of Betty Jean Pfiffner, a minor, for the allowance of attorney's fees out of the estate of the minor. Upon trial anew in the circuit court, after plaintiff's petition was denied in the probate court, there was a judgment in favor of plaintiff for $500, and defendant appeals.

Reversed and remanded for another trial.

See also 178 S.W.2d 457.

Maurice P. Phillips, of St. Louis, for appellant.

Edward J. Houlihan, of St. Louis, for respondent.

SUTTON, Commissioner.

This action originated in the probate court upon petition of the plaintiff for the allowance of attorney's fees out of the estate of Betty Jean Pfiffner, a minor. The estate is in the hands of Margaret Morgan as guardian of the person and estate of said minor. The probate court denied the petition, and plaintiff appealed to the circuit court. In the circuit court Maurice P. Phillips was appointed guardian ad litem to represent said minor in said action.

Upon the trial anew in the circuit court there was a judgment in favor of plaintiff for five hundred dollars, and defendant appeals.

Marguerite Pfiffner, a widow, died in St. Louis on July 3, 1937. At the time of her death she resided at 7707 Vermont Avenue, in said city, with her two daughters, Margaret, aged twenty-one, and Betty Jean, aged four. On July 18, 1937, Margaret Pfiffner was appointed administratrix of her mother's estate, which consisted chiefly of thirty-five pieces of real estate in St. Louis and St. Louis County. There was no mortgage or deed of trust, or other lien on the decedent's residence at 7707 Vermont Avenue except taxes amounting to about $250. There was a suit pending, filed by Mary Agnes Byrnes, involving a claim to all of decedent's real estate.

In the course of the administration of the estate of Marguerite Pfiffner in the Probate Court of the City of St. Louis a fifth-class claim in the amount of $3,600 was filed and allowed. Margaret Pfiffner upon her mother's death continued to reside with her sister, Betty Jean, at 7707 Vermont Avenue for some time. Margaret and Betty Jean were the only heirs of Marguerite Pfiffner.

In September, 1938, the probate court, on petition of the fifth-class creditor above mentioned, directed the administratrix to take charge of all the real estate belonging to the decedent's estate. Thereafter the said creditor filed a motion in the probate court to have the administratrix removed. In November, 1937, Margaret Pfiffner married Lester Morgan. After their marriage they moved with Betty Jean Pfiffner into 620 Koeln Street, one of the properties belonging to decedent's estate. In September, 1937, Margaret Pfiffner had with her sister moved from the homestead at 7707 Vermont Avenue across the street to 7706 Vermont Avenue, also one of the properties belonging to the decedent's estate. At this latter address Margaret Pfiffner and Betty Jean Pfiffner resided with Mr. and Mrs. Thomas Morgan, parents of Lester Morgan.

Respondent's petition for the allowance of attorney's fees was filed and presented to the court on March 16, 1942. He asked for the allowance of $1,000 for services rendered to the guardian from the date of the appointment of the guardian to the date of the filing of the petition.

Margaret Morgan was appointed guardian of Betty Jean Pfiffner on March 25, 1940. She was then still the administratrix of the estate of her mother, Marguerite Pfiffner. Subsequent to her appointment as guardian of Betty Jean Pfiffner respondent was her sole counsel and legal adviser as guardian of Betty Jean Pfiffner. She had previously been represented by another attorney who advised her in relation to her duties as administratrix. After her appointment as Betty Jean's guardian respondent was the only adviser she had in her capacity as administratrix or in her individual capacity.

Respondent testified that at the time of the appointment of the guardian the minor's property consisted of an undivided one-half interest in thirteen pieces of real estate in St. Louis and in St. Louis County; that during the lifetime of Marguerite Pfiffner a suit had been filed by Mary Agnes Byrnes against Marguerite Pfiffner involving the title to all of her real estate, it being charged that she held the real estate merely as a straw party; that this suit had been revived against Margaret Morgan as administratrix; that the attorney then representing the administratrix obtained the dismissal of this suit for failure of Mary Agnes Byrnes to give security for the costs; that respondent had consulted with the attorney of Mary Agnes Byrnes with a view to having that suit dismissed and removed as a cloud on the title to the real estate; that Frances Byrnes held a note against Marguerite Pfiffner, which was allowed against her estate as a fifth-class claim; that Frances Byrnes was the mother of Marguerite Pfiffner; that all of the pieces of real estate belonging to the estate of Marguerite Pfiffner were encumbered by deeds of trust except the homestead at 7707 Vermont Avenue; that the court records show that at the time of Marguerite Pfiffner's death she owned thirty-five pieces of real estate in St. Louis and St. Louis County, and that at the time of the appointment of the guardian there were about thirteen pieces of real estate remaining, the rest having been sold under foreclosures of deeds of trust; that it was his opinion after investigation that the minor's interest in the remaining pieces of real estate would be lost by foreclosure, and that the only solution would be to get the Maryland Casualty Company, surety on the administratrix' bond, to advance money to pay the allowed claim against the decedent's estate; that this would remove this claim as a cloud on the title, so that, by refinancing, the remaining real estate could be saved from foreclosure; that he learned that Margaret Morgan had $600 on hand which she would pay in behalf of the administratrix; that he made a trip to Baltimore and interviewed the officers of the Maryland Casualty Company and got them to agree to make a loan of $3,000 to be secured by deeds of trust on all the properties, executed by Margaret Morgan individually and her husband and by Margaret Morgan as guardian of the minor; that he prepared and presented to the probate court an application for an order permitting him to borrow $3,000 and secure the same by deeds of trust on the minor's interest in the real estate, and having procured an order of the probate court to that effect prepared the note and deeds of trust; that he prepared two deeds of trust because part of the property was located in the City of St. Louis and part in St. Louis County; that upon the execution of these papers the Maryland Casualty Company advanced $3,000 to the administratrix, and that she paid that $3,000 together with $600 to discharge the fifth-class claim of Frances Byrnes; that in order to pay the $3,000 back to the Maryland Casualty Company it became necessary to sell the piece of property at 7707 Vermont Avenue; that he prepared and presented in the probate court an application for authority to sell said piece of real estate at private sale; that the property was sold and the sale was approved by the probate court; that the deed thereto was executed by Margaret Morgan as guardian of the minor and also in her individual capacity; that the proceeds of the sale were used to pay off the deed of trust for $3,000 given as before stated, and that the deed of trust was satisfied of record; that thereupon Margaret Morgan as administratrix made her final settlement showing nothing in the estate for distribution; that the settlement was approved and the administratrix was discharged; that he went with Margaret Morgan to the probate court when she filed her final settlement; that he examined the settlement and advised her respecting the inclusion of certain items in the settlement, but that he was not representing her as administratrix, but was only representing her as guardian of the minor; that Margaret Morgan paid him $100 individually and $100 out of the decedent's estate, and that he charged $100 against the estate of the minor, for his services and expenses in obtaining the loan of $3,000; that he had received nothing from the estate of the minor for his services; that subsequent to the making of the final settlement he continued to represent Margaret Morgan as guardian of the minor; that he advised and aided her in the renewal of deeds of trust on the real properties and in the sale thereof, preparing the necessary papers and obtaining the orders of the probate court necessary to these ends; that all the properties were finally sold except four pieces which remained unsold and belonged to the minor's estate at the time he filed his petition for the allowance of attorney's fees in the probate court; that these remaining pieces were all encumbered by deeds of trust; that the application for the removal of Margaret Morgan as administratrix was withdrawn when...