State v. Smith

• Decision Date: 07 July 1961
• Docket Number: No. 38247,38247
• Parties: STATE of Minnesota ex rel. SEIFERT, JOHNSON & HAND, Appellants, v. Ole E. SMITH, as executor, and Peggy Jane Smith, as executrix of the Estate of John E. Esser, deceased, et al., Respondents.
• Court: Minnesota Supreme Court

Page 159

110 N.W.2d 159

260 Minn. 405

STATE of Minnesota ex rel. SEIFERT, JOHNSON & HAND Appellants, v. Ole E. SMITH, as executor, and Peggy Jane Smith, as executrix of the Estate of John E. Esser deceased, et al., Respondents.

No. 38247.

Supreme Court of Minnesota.

July 7, 1961.

Syllabus by the Court

Since the relationship of attorney and client is a confidential one, it must of necessity be based on mutual acceptance and mutual trust. Forcing such relationship upon the client against his will would not be conducive to an atmosphere of reciprocal confidence. An executor should, therefore, not be forced against his will to employ an attorney who is not acceptable to him, or upon whose judgment he does not wish to depend or whose advice he does not feel he can follow with confidence.

Seifert, Johnson & Hand, Leo J. Seifert, Fairmont, for appellants.

John S. Ruenitz, Windom, for respondent.

NELSON, Justice.

This is an appeal from an order of the Cottonwood County District Court denying relators' motion for amended findings or for a new trial. It involves the interpretation of a paragraph of the last will of John E. Esser, decedent, which reads as follows:

'Sixth: I direct that my executor and executrix employ Seifert, Johnson & Hand, Fairmont, Minnesota, as attorneys in the probating of this estate.'

The probate court refused to direct the executor and executrix to comply with this provision, and relators brought certiorari in the district court, claiming that where testator in his will directs that the executor must employ a certain lawyer in the probating of his estate such direction is mandatory. The court below held that such a provision is merely directory. The sole question therefore presented in this court is whether an executor is required to follow a specific direction of the testator that he employ named attorneys in probating the estate where the evidence shows said attorneys are competent, qualified, and willing to act.

The facts surrounding the preparation and execution of the will are not in dispute. Relators state them as follows:

Decedent died on November 19, 1959, at the age of 76 years, leaving a last will and testament which was executed by him on April 7, 1958. This will was admitted to probate on April 4, 1960.

The will was drawn by Leo J. Seifert of the firm of Seifert, Johnson & Hand, Fairmont, Minnesota. Seifert had been acquainted with decedent for about three or four years prior to the time the will was drawn, and decedent had come to his office three or four times to talk to Seifert about making a will. At the time of making the will and at previous times decedent told Seifert that some people in Windom thought that he was crazy. He said also that he did not care so much for the husband of his daughter Lorayne O'Neill and that he wanted to protect her from him. He named Ole E. Smith and his wife Peggy Jane Smith, to be executor and executrix. He advised Seifert that he didn't want anybody to change this will and that he did not want any other lawyer except Seifert or his firm to probate his estate and represent the executor and executrix. Seifert advised him that if he wanted Seifert or his firm to handle the legal end of the estate he would have to give directions to that effect in the will. The paragraph so directing has been set out above.

Respondents assert that the foregoing statement of facts largely reflects the transactions surrounding the execution of the will and includes evidence excluded by the probate court. The record is not clear as to what specific evidence was excluded by the probate court, and in any event respondents have argued on the basis of the facts as stated here.

Relators cite the following cases as controlling: Rivet v. Battistella, 167 La. 766, 120 So. 289; In re Estate of Crosby, 218 Minn. 149, 15 N.W.2d 501; Estate of Ogg, 262 Wis. 181, 54 N.W.2d 175.

The Rivet case is the only one cited which holds that a designation of an attorney in the will is binding and entirely within the rights of the testator. This rule, however, is supported in Louisiana by statutory law of long standing, namely, Acts of La.1902, Act No. 45 (now La.Rev.Stat.1950, 6:322(6)), which provided:

'* * * banks may be appointed * * * executor * * *. Further, * * * the designation in any will of an attorney to the succession, or the selection of an attorney by the surviving spouse, or heirs shall be binding upon such bank.'

Louisiana has a similar statutory provision that a designation in a trust instrument of an attorney 'to handle legal matters for the trust' shall be binding on the trustee and beneficiary. La.Rev.Stat.1950, 9:2212. The Rivet case is cited in Succession of Pope, 230 La. 1049, 1056, 89 So.2d 894, 897. as holding:

'* * * while the executors are not required to use the services of the attorney, the estate is liable to him for a reasonable fee.'

Such rule finds no support by statute or court decisions in this state.

In re Estate of Crosby, supra, did not deal with the issue in this case. There the testator named one James W. Hunt executor and also requested (218 Minn. 151, 15 N.W.2d 503) 'that the said James W. Hunt * * * designate some person to act as executor * * * in the case of his own death or disability.' The will further provided (218 Minn. 152, 15 N.W.2d 503).

'If the said James W. Hunt shall make no such designation, or if the person so chosen by him shall not act, I desire that The First and American National Bank of Duluth shall be appointed by the proper court as such executor * * * to succeed the same James W. Hunt.'

Hunt did not qualify as executor but instead formally relinquished his right to act requesting (218 Minn. 152, 15 N.W.2d 504) 'that the Court appoint the First and American National Bank of Duluth as the executor of said will in compliance with the provision of said will naming said bank as executor in my stead in case of my disability to act as such.' The case therefore, concerns itself with the interpretation of that clause in the will and the determination of the 'suitability' of a person to act as executor of a will, and this court held that to be a question committed to the sound and discerning judgment of the appointing court, to be exercised in favor of the testator's choice if he appears to have the qualities necessary to discharge the trust with fidelity, prudence, and promptness, having regard for the special conditions of each estate and those interested in it as creditors, legatees, and next of kin. As was stated in the Crosby case, the right of a particular person to act as executor of a will is, under our statute, dependent upon his being 'named' as such in the will, assuming, of course, that he is qualified and suitable. A testator may delegate the naming of an executor to a third person. See, 21 Am.Jur., Executors and Administrators, §§ 56, 57.

Minn.St. 525.25 provides in part:

'* * * If any executor named in the will is found by the court to be suitable and competent to discharge the trust, he shall be appointed.'

The only reference in the Crosby case to retaining an attorney for the estate is found in the closing paragraphs of the opinion which read as follows (218 Minn. 157, 15 N.W.2d 506):

"Unsuitability,' to quote from the trial court's memorandum, 'is claimed to arise out of (1) the unfriendly relations between the Crosby sons, who are beneficiaries, and Mr. Hunt, whom the bank had indicated it would retain as its attorney, if appointed, and (2) the fact that the administration of the estate has been largely completed by the special administrator, whom the beneficiaries seek to have appointed administrator with the will annexed.'

'The trial court gave careful consideration to the claim so urged and properly recognized both contentions as having 'some, but not controlling, force.' It also expressed its opinion that, 'If I felt that it were a matter of discretion, unaffected by the testator's wishes, I would appoint the Northern National Bank as administrator with the will annexed.' However, it reached the conclusion that the First and American National Bank was not 'unsuitable,' and accordingly appointed that bank. That conclusion, based on adequate evidence, cannot be disturbed here.'

While relators put some stress on Estate of Ogg, supra, in support of their contentions, that case is clearly distinguishable and when considered with Estate of Braasch, 274 Wis. 569, 80 N.W.2d 759, it becomes quite clear that the Ogg case furnishes no rule beyond the special situation there involved. In the Ogg case the will named no executor although a bank was named as trustee of trusts created by the will. The will declared it to be the testator's 'express desire' that the executor and trustee employ a certain lawyer, explaining that the lawyer had an intimate knowledge of testator's affairs and wishes. The bank was appointed administrator with the will annexed. Testator's next of kin asserted her right under Wis.St. 310.25 to name the attorney for the estate, there being a corporate administrator. The administrator petitioned for instructions stating that it was willing to retain either the attorney named in the will or the attorney named by the next of kin. The court decided that the administrator should be instructed to retain the attorney named in the will, giving considerable weight to the following facts: (1) The will expressed sound reasons for naming the particular attorney; (2) the will did not name an executor; (3) the administrator was willing to employ the attorney named in the will. In the Ogg case the conflict was between the wishes of the testator expressed in the will and the wishes of the next of kin who had certain rights under the statute, which was applicable only where a firm or corporation was administrator or executor and, by its terms, inapplicable when good cause was shown to the contrary. In the Braasch case the Wisconsin court said (274 Wis. 571, 80 N.W.2d 760):

'Unlike the Ogg...