Appeal of Mumma, No. 58

No. 58 | Pa. | Jun 28, 1889

Opinion,

Mr. Chief Justice Paxson :

We can only consider in this case the questions affecting the parties who have entered an appeal. Said parties are David Mumma, whose claim to retain one half the fund collected from the different life policies was disallowed by the court below, and the administrator of Patrick Evers, the deceased pauper, whose commissions have been reduced, as well as the amount expended for counsel fees. The heirs of Patrick Evers have not appealed, hence the relative rights of said heirs and the overseers of the poor of the borough of Mifflintown are not before us. We are, therefore, spared the discussion of this interesting subject.

The main question is whether Mr. Mumma was entitled to retain one half the sum collected by him. It appears from the report of the auditor that Patrick Evers, the decedent, was, at the time of his death, and had been for several years prior thereto, a pauper and a charge upon the borough of Mifflintown. It further appeared that during his life he was induced by certain parties to take out life policies in certain speculative insurance companies. These persons paid all expenses, took assignments of the policies, maintained them, and after his death drew money thereon, and kept it as their own. After the decisions of this court in other cases that such insurances enure to the benefit of the estate of the assured, an agreement was made between the heirs of said Patrick Evers and David .Mumma, of Harrisburg, that said Mumma was to raise up an administration upon the estate, ascertain what policies existed on his life, who held them, to whom money had been paid thereon; collect by suit or otherwise the money so paid by the insurance companies to the policy holders; bear all expenses and pay all charges out of his own pocket, if no money was obtained; and if any money was recovered the said Mumma was to receive as his compensation one half of the gross amount so obtained. In pursuance of this agreement letters of administration were taken out upon the estate, and the administrator ratified the agreement before made by the heirs. Mr. Mumma succeeded in collecting the sum of $1,031, one half of which he paid to the administrator, and retained the other half under the agreement as his compensation.

Up to this time no one had knowledge of a claim on the part of the overseers of the poor for the maintenance of the pauper. ■The overseers made no effort to collect this money from the parties who had received it, and the auditor distinctly finds that had there been no such agreement with Mr. Mumma there would have been no estate to distribute. The auditor further finds, and in this he is sustained by the evidence, that 50 per cent was the usual charge of attorneys for this class of cases. It must not be overlooked that the fee was contingent; no recovery, no compensation, and the expenses to be borne by the attorney. When we look at the character and amount of the claims, we are not prepared to say that the charge was unreasonable or the agreement ultra vires. We are not discussing a question of professional ethics, but an agreement as to professional compensation. The said agreement was not necessarily invalid because made by the heirs. Prima facie they had a right to make it, subject to the rights of creditors. But the latter having made no move toward collecting the money, they cannot wholly repudiate the agreement made by the heirs in good faith by moans of which the money was received. They would have a right to object if it was unreasonable and in fraud of their rights. Neither appears to be the fact in this case, and we think it was error to surcharge the accountant with any portion of the money retained by Mr. Mumma.

The auditor reduced the accountant’s claim for compensation from $100 to $75. In this he was sustained by the court below, and we think they were both right. This question does not require discussion.

The auditor allowed a fee of $150 to counsel for professional services. This the court reduced to $100. The auditor found as a fact that the charge was not excessive for the services rendered. The learned judge does not give a satisfactory reason for reversing him upon this point. He does not say that the amount was excessive or that it was not fully earned. That the estate when collected belonged to tbe overseers of the poor, and that they were not bound by an agreement to which they were not a party, is aside from the ease. The administrator had a right to collect this money and to administer the estate. Creditors are bound, as well as heirs and distributees, for expenses incident and necessary to the conduct of the business ; they can only be heard to object that such charges are excessive, and this has not been shown in this case. We are of opinion that the fee of $150 to counsel should have been allowed.

The decree is reversed at the costs of the appellees, and it is ordered that distribution be made in accordance with this opinion.