Sprinkle v. Fleming's Estate

• Decision Date: 04 April 1922
• Docket Number: No. 16990.,16990.
• Parties: SPRINKLE V. FLEMING'S ESTATE.
• Court: Missouri Court of Appeals

239 S.W. 899

209 Mo. App. 405

SPRINKLE

V.

FLEMING'S ESTATE.

No. 16990.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Petition by Thomas H. Sprinkle against the Estate of Alfred W. Fleming for allowance of attorney's fees. From judgment of the circuit court for defendant on appeal from the probate court, the plaintiff appeals. Affirmed.

Thomas H. Sprinkle, of St. Louis, for appellant.

John B. Reno and Irvin V. Barth, both of St. Louis, for respondent.

NIPPER, C.

This is an appeal from a judgment rendered in the circuit court against plaintiff and in favor of defendant, arising on the petition filed by plaintiff asking that the probate court fix the fee for services rendered by plaintiff in the above estate. The case was originally filed in the probate court. Upon a trial before the court judgment was rendered for defendant, from which plaintiff appeals. Upon request, the court made a finding of facts. We here set out so much thereof as we deem necessary:

"Upon the request of the petitioner that the court make a finding of the facts herein separate from the conclusions of law, the court finds the facts herein to be as follows:

"The Trust Company of St. Louis County, in April, 1906, became curator of the estate of said Alfred W. Fleming, a minor, by appointment of the probate court of St. Louis county, and remained such curator until September 2, 1913, when said Fleming became 21 years of age. During that time the curator made annual settlements of its account, and on September 3, 1913, filed its final settlement in said court returnable to the November term, 1913, thereof, and caused notice thereof to be served upon said Fleming. At said term, on December 30, 1913, said Fleming filed exceptions to said final settlement and to the other settlements of said curator, which exceptions are in evidence in this cause by printed copy marked Exhibit A, and are the exceptions on file in Case No. 29688 in this court, in the matter of the estate of Alfred W. Fleming, a minor, and are here referred to and made a part of this finding of facts.

"The petitioner herein has for 23 years been a licensed attorney at law of the city and county of St. Louis and state of Missouri, and was in April, 1906, employed by the said trust company as such curator, through its president, to advise and represent it as such curator as its attorney in its administration of said estate, and thereafter performed professional services as such attorney for said curator up to the time when said ward became of age, including therewith assisting in the preparation and filing of said final settlement, and received full compensation for all of the same to said time. "Upon the filing of said exceptions to the final settlement, the said trust company, by its president acting for it, employed and directed the petitioner as attorney for the said company as curator to defend against the said exceptions, and the petitioner thereupon proceed to make such defense, and in doing so performed the services itemized and specified in the itemized statement attached to the petition herein, on and between January 20, 1914, and December 2, 1916.

"While the said exceptions were pending in the probate court and being there heard rind considered from time to time, the said Fleming, on February 22, 1914, filed a motion in said court for an order of partial distribution of said estate, which was overruled on March 23, 1914; and thereupon, on April 14, 1914, he applied to the Supreme Court of Missouri for a writ of mandamus to require such order of partial distribution, and upon the same a peremptory writ was ordered by said Supreme Court December 19, 1914, and a motion for rehearing thereon was overruled December 31, 1914.

"Under the same employment and direction as aforesaid by the said trust company as curator through its president, the petitioner appeared for said curator in defense of said mandamus proceeding, and performed services for said curator in such defense from the 18th day of April, 1914, to December 30, 1914, and thereafter, from January 2, 1915, to May 24, 1917, performed services for said curator in relation to the making of such partial distribution in the probate court, and from December 8, to December 30, 1916, and from January 7, to May 24 1917, performed further services for said curator in the matter of defending against said exceptions to settlements, arguing upon the same and preparing brief and reply brief thereon and in preparing report to comply with an order of the probate court upon such exceptions, and in preparing for the court an order or decree upon said exceptions.

"All of said services performed by the petitioner after the filing of said final settlement were continuous, without other contract; employment, or direction than as aforesaid.

"In the performance of all of said services there was associated with the petitioner Thomas Skinker, Esq., a lawyer of longer practice and experience, who was general counsel of said trust company, and who consulted with the petitioner and also prepared briefs upon the question involved in making such defenses against exceptions and mandamus proceedings.

"On December 2, 1916, the petitioner requested payment of said trust company for or on account of his said services, and further requested the said company as curator to apply to the probate court for an allowance to him of fees for said services to that time, both of which requests were refused by said company.

"The petitioner thereupon prepared his original petition...