Thirlwell's Adm'r v. Campbell

• Decision Date: 19 April 1874
• Citation: 74 Ky. 163
• Parties: Thirlwell's adm'r, & c. v. Campbell, guardian, & c.
• Court: Kentucky Court of Appeals

74 Ky. 163

Thirlwell's adm'r, & c. v. Campbell, guardian, & c.

Court of Appeals of Kentucky.

April 19, 1874

APPEAL FROM LOUISVILLE CHANCERY COURT.

THOMAS B. FAIRLEIGH, THOMAS SPEED, For Appellants,

CITED

Act of March 1, 1860, Myers's Supp. 107.

MUIR BIJUR & DAVIE, For Appellee,

CITED

Daniell's Chancery Pl. and Pr., chap. 31.

Adams's Equity, page 261.

Revised Statutes, Myers's Supp. 107.

Acts 1867-68, page 25.

Story's Equity, sections 477, 493.

6 Allen, 164, Frost v. Belmont.

2 Daniell's Ch'y Pl. and Pr., p. 1434, n. 4, pp. 1438 1439.

1 Keen 358, Stanton v. Hatfield.

5 DeG M. and G. 556.

3 Beavan, 9, Sutton v. Doggett.

OPINION

COFER JUDGE:

This suit was originally brought by Colin Campbell, statutory guardian of Charles and Robert Campbell, against his wards and the other heirs of C. C. Thirlwell, deceased, seeking a sale, under chapter 86 of the Revised Statutes, of several parcels of real estate situated in the city of Louisville, which had descended to them from said Thirlwell, and also seeking to surcharge a settlement made by Thirlwell's administrator with the County Court of Jefferson County.

It appears that all parties concerned desired a sale of the real estate, and that T.C. Thirlwell, Mrs. Thompson, and the representatives of William Thirlwell, each owning one eighth of the entire estate, were represented by their own attorneys, while the wards of the plaintiff were directly represented by the attorneys who brought the suit, and that the other parties in interest had no attorney specially employed.

The plaintiff's wards and T.C. Thirlwell desired to surcharge the settlement made by the administrator, but the others seem to have been either indifferent to that matter or opposed to it.

It appears that the real estate had been rented out by the widow of the intestate, to whom no dower had been assigned until after the suit was commenced, when, on motion of the plaintiff, and through the exertions of his counsel, a special receiver was appointed, who was ordered to take charge of the property and collect the rents. This seems to have been without the consent of any of the heirs except the plaintiff's wards, and against the wish of some of them.

A judgment was finally obtained and the real estate was sold for between $25,000 and $26,000; the settlement of the administrator was surcharged, and an account in his favor, which had been allowed as a credit in the county court settlement, was reduced between $2,400 and $2,500, and some $400 realized from rents.

After the main purposes of the action had been accomplished the plaintiff gave notice of a motion for an allowance to pay the fee of his counsel, and after considerable proof had been taken as to the amount of services performed by them, and the value thereof, the court made an allowance for that purpose of $1,250, to be paid out of the general fund, and to this allowance the defendants, except the plaintiff's wards, excepted, and have brought the case here on appeal, and insist that the court erred in allowing the fee to be paid out of the common fund, or, if it did not, that the allowance is too large.

It appears from the evidence that although Mrs. Thompson, T.C. Thirlwell, and the representatives of William Thirlwell were each represented by an attorney, the attorneys for the plaintiff did the greater part of the labor in preparing the cause for a judgment to sell the real estate, and that they did very much the largest part of the labor in that branch of the case seeking to surcharge the settlement of the administrator.

It is insisted, however, that as appellee, as guardian of a part of the heirs, commenced the suit, he is entitled to have the fees of his attorneys paid out of the common fund, notwithstanding the fact that a part of the distributees and heirs were represented by other attorneys, and the further fact, as to the settlement and rent branches of the case, that what was done was done either without their consent or against their known wishes.

The act of March 1, 1860 (Myers's Supplement, p. 107), provides " That where suits are brought for the settlement of estates or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, and it shall be made to appear that one or more of the legatees, devisees, or distributees, or parties in interest, have prosecuted and carried on the suit for the benefit of others interested with themselves, and have been at trouble and expense in conducting the same, it shall be the duty of the court to allow such person or persons reasonable compensation for such trouble, and for necessary expenses in addition to the fees and cost now by law taxable in the bill of costs; said allowance to be paid out of the funds recovered before...