Trautz v. Lemp, 32976.

Citation72 S.W.2d 104
Decision Date18 April 1934
Docket NumberNo. 32977.,No. 32982.,No. 32978.,No. 32980.,No. 32976.,No. 32979.,No. 32981.,32976.,32977.,32978.,32979.,32980.,32981.,32982.
PartiesKATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, VELLA MARIE BISBEE. KATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., KATHRYN H. TRAUTZ ET AL., Appellants, ALEXANDER H. HANDLAN ET AL. KATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, KATHRYN H. TRAUTZ ET AL. KATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, EDWARD C. CROW ET AL. KATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, MARIE H. HORNSBY. KATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, MERCANTILE-COMMERCE NATIONAL BANK, Administrators, ET AL. KATHRYN H. TRAUTZ, Plaintiff, v. WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, MERCANTILE-COMMERCE NATIONAL BANK, Administrators, ET AL.
CourtUnited States State Supreme Court of Missouri
72 S.W.2d 104
KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, VELLA MARIE BISBEE. KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., KATHRYN H. TRAUTZ ET AL., Appellants, ALEXANDER H. HANDLAN ET AL. KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, KATHRYN H. TRAUTZ ET AL. KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, EDWARD C. CROW ET AL. KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, MARIE H. HORNSBY. KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, MERCANTILE-COMMERCE NATIONAL BANK, Administrators, ET AL. KATHRYN H. TRAUTZ, Plaintiff,
v.
WILLIAM H. LEMP ET AL., ALEXANDER H. HANDLAN ET AL., Appellants, MERCANTILE-COMMERCE NATIONAL BANK, Administrators, ET AL.
No. 32976.
No. 32977.
No. 32978.
No. 32979.
No. 32980.
No. 32981.
No. 32982.
Supreme Court of Missouri.
Court en Banc, April 18, 1934.

[72 S.W.2d 105]

Appeal from Circuit Court of City of St. Louis. — Hon. Albert D. Nortoni, Judge.

REVERSED AND REMANDED (with directions).

Leahy, Saunders & Walther and Barth & Baron for Barth & Baron, Kathryn H. Trautz and Kathryn Marie Trautz.

(1) All persons whom it is necessary to bring before the court as parties in order to obtain a valid decree in litigation involving construction of a will are entitled to their costs and the expense of the litigation as between attorney and client to be paid out of the estate. The litigation, in such a case, is indispensable to proper administration of the fund, and it should therefore bear the costs of the litigation as part of the expense incident to its administration. St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Noe's Admr. v. Miller's Executors, 31 N.J. Eq. 234; Guerin v. Guerin, 270 Ill. 239, 110 N.E. 407; Ingraham v. Ingraham, 169 Ill. 432; Merrill v. Winchester, 120 Me. 203, 113 Atl. 261; Singer v. Taylor, 91 Kan. 190, 137 Pac. 931; Beer v. Squires, 102 Conn. 503, 129 Atl. 382; Cooke v. Woman's Medical College, 82 N.J. Eq. 179, 87 Atl. 131; Reed v. Creamer, 118 Me. 317, 108 Atl. 82. (2) Allowances should be made to counsel who are responsible for the restoration of the 1550 shares of Handlan-Buck Manufacturing Company stock to the estate. Robinson v. Dundee Land Co., 80 Mo. App. 626; Trustees v. Greenough, 105 U.S. 527, 26 L. Ed. 1157; Central Railroad & Banking Co. v. Pettus, 113 U.S. 122, 28 L. Ed. 915. (a) All work done by the members of the firm of Barth & Baron which contributed to the final result of recovering the 1550 shares of Handlan-Buck Manufacturing Company stock to the estate should be compensated for. Thompson v. Bomar, 258 Fed. 339. (b) The efforts of counsel and their services rendered in attempting to effect settlement and in conducting extensive negotiations for the accomplishment of that purpose should be compensated for. McLean's Estate, 5 Kulp, 170; Smith v. Smith, 36 Ga. 192; Naylor v. Winch, 1 S. & S. 565; Mateer v. Railroad Co., 105 Mo. 354. (3) The time devoted by attorneys to the cause in connection with which allowances are asked, the difficulties of their task, the amount involved in the controversy, whether they have been successful, whether compensation was certain or contingent, whether they have been otherwise compensated than by the allowances they may receive, what compensation generally is allowed for services of similar character and quality are to be considered. Irwin v. Swinney, 45 Fed. (2d) 896.

Jesse W. Barrett for Marie H. Hornsby.

All persons whom it is necessary to bring before the court as parties in order to obtain a valid decree in litigation involving construction of a will are entitled to their costs and the expense of the litigation as between attorney and client, to be paid out of the estate. The litigation, in such a case, is indispensable to proper administration of the fund, and it should therefore bear the costs of the litigation as part of the expense incident to its administration. St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Noe's Admr. v. Miller's Executors, 31 N.J. Eq. 234; Guerin v. Guerin, 270 Ill. 239, 110 N.E. 407; Ingraham v. Ingraham, 169 Ill. 432; Merrill v. Winchester, 120 Me. 203, 113 Atl. 261; Singer v. Taylor, 91 Kan. 190, 137 Pac. 931; Beer v. Squires, 102 Conn. 503, 129 Atl. 382; Cooke v. Woman's Medical College, 82 N.J. Eq. 179, 87 Atl. 131; Reed v. Creamer, 118 Me. 317, 108 Atl. 82. (The citations above are adopted from the brief filed herein by Barth & Baron, appellants.)

Carter, Jones & Turney for Mercantile-Commerce National Bank in St. Louis and C.A. Tilles, administrators pendente lite of the estate of Eugene W. Handlan, deceased.

All necessary parties to litigation involving the construction of a trust instrument are entitled to have their expenses, including reasonable attorneys' fees, charged upon the trust fund. St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Noe's Admr. v. Miller's Executors, 31 N.J. Eq. 234; Guerin v. Guerin, 270 Ill. 239, 110 N.E. 407; Ingraham v. Ingraham, 169 Ill. 432; Merrill v. Winchester, 120 Me. 203, 113 Atl. 261; Singer v. Taylor, 91 Kan. 190, 137 Pac. 931; Beer v. Squires, 102 Conn. 503, 129 Atl. 382; Cooke v. Woman's Medical College, 82 N.J. Eq. 179, 87 Atl. 131; Reed v. Creamer, 118 Me. 317, 108 Atl. 82; Thompson, Construction of Wills, sec. 624, p. 802. (The citations above, with the exception of Thompson, Construction of Wills, are adopted from the brief of Barth & Baron, appellants.)

Taylor, Chasnoff & Willson and James V. Frank for Alexander H. Handlan and Edward R. Handlan individually and as executors of the estate of and trustees under the will of A.H. Handlan, deceased.

(1) For the services rendered the estate in the recovery of the stock there should be a payment of but one fee by the estate, irrespective of the fact that more than one firm of attorneys were instrumental in procuring the result obtained. There is no justification for a charge greater than the reasonable and fair value of the services of one firm of lawyers. Irwin v. Swinney, 45 Fed. (2d) 890. (2) In determining a reasonable and fair charge to be imposed upon the estate for legal services rendered in recovering the stock the court should consider (1) the value of the stock recovered to the estate; (2) the accessibility of the facts pertaining to the claim gift and the labor involved in developing and presenting those facts; (3) the relative simplicity or complexity of the questions of law involved, and (4) whether the payment of any fee at all was contingent wholly upon the outcome of the case. (3) The award of $55,800 to the attorneys responsible for the recovery of the stock is grossly excessive and should not be permitted to stand. (4) Counsel are not entitled to an allowance of attorneys fees based upon their alleged services to the estate in attacking the will for violation of the rule against perpetuities, because they raised the question only by adversary proceedings, which, if successful, would have resulted in the destruction of the trust. Hobbs v. McLean, 29 L. Ed. 946; Sandusky v. Sandusky, 265 Mo. 219; Hartnett v. Langan, 222 S.W. 403, 282 Mo. 471; Drake v. Crane, 66 Mo. App. 499; Lewis v. Gaillard, 70 Fla. 172, 69 So. 797; Kimball v. Atlantic States Life Ins. Co., 223 Fed. 463; In re Estate of Soulard, 141 Mo. 642; Gillespie v. Piles, 178 Fed. 886, 44 L.R.A. (N.S.) 1; Abert v. Taylor, 37 S.W. 676; Railroad v. Brown, 29 Atl. 524; West v. Rector, St. James, 83 N.J. Eq. 324; Ford v. Gilbert, 75 Pac. 158; Whitney v. Jersey Shore, 266 Pac. 737; Dunlop v. McGhee, 124 S.E. 199. (5) Throughout the entire litigation there was no "bringing the estate into court" under circumstances which would authorize the allowance of any attorneys' fees therefor. (6) There is no basis in equity for an allowance of attorneys' fees to be paid by the estate for efforts on behalf of counsel for individual beneficiaries or parties spent in fruitless negotiations looking toward a settlement of the controversy.

Edward C. Crow, Jones, Hocker, Sullivan & Gladney and Frank Y. Gladney pro se.

(1) The plaintiffs in that suit neglected and failed to bring necessary parties defendant and after five years of dormancy the suit was abandoned. Had it been brought to trial in the condition it was in in 1927, the court would have dismissed it for want of necessary parties. Parke v. Smith, 211 S.W. 62; Harper v. Hudgins, 211 S.W. 65; St. Louis, etc., v. McAllister, 302 Mo. 161; Stevens v. Smith, 126 Fed. 706; Strout v. Chesley, 132 Atl. 213; Mortimer v. Bastone, 148 N.E. 317. (2) Appellants and their attorneys are disentitled to object to the claim for services by Edward C. Crow and Jones, Hocker, Sullivan & Gladney on the ground that such claim is "shockingly excessive" and calculated to subject "courts and lawyers to severe criticism." The attorneys for the appellants throughout the litigation have represented the Handlans individually and the trust estate; they have represented the estate and three individuals with interests antagonistic to the trust estate. This violates the settled law of the land. McDonald v. Wagner, 5 Mo. App. 56; Beam Co. v. Bakewell, 224 Mo. 226; Rochester v. Gonterman, 49 S.W. (2d) 71; State ex rel. v. Mueller, 51 S.W. (2d) 8; State ex rel. v. Holtcamp, 51 S.W. (2d) 13; Smith v. Jordon, 77 Conn. 473; Gordan v. Green, 113 Mass. 260; Bryant v. McIntosh, 3 Cal. App. 95; Marcom v. Wyatt, 117 N.C. 129; Arrington v. Arrington, 116 N.C. 170; Strong v. B.L. & I. Union, 55 N.E. 676; People v. Hanson, 125 N.E. 269; Murray v. Lizotte, 31 R.I. 527. (3) Apart from an ethical lecture put forth by lawyers who have throughout appeared both against and for the trust estate, there is no real resistance to the claim of these respondents for compensation for services in connection with the 1550 shares. The amount, measured by...

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