182 Iowa 23 | Iowa | 1916
— On the 24th day of May, 1909, Nancy B. McIntosh, now deceased, executed her last will. Appellee Brown, an attorney, drew that will. These two signed a paper dated May 24, 1909, as folloAvs:
“Indianola, Iowa, May 24, 1909.
“It is hereby understood and agreed that O. C. Brown Avill accept the appointment as executor-of my last wil 1 this day made and that he is to have and accept fwe per cent of my estate as full compensation for all services he shall render or perform as such executor, and shall act as his OAvn attorney therein and his compensation shall also be in full of all his services as such attorney, and this employment to be binding on my estate, my heirs and devisees.
“N. B. McIntosh,
“O. C. Brown.
“Witness to Signatures
“W. G-. Stanley.
“J. N. Weldin.”
On the 25th day of June, 1909, these fwo made HiefolIoAving writing:
*25 “This memo rand mu of agreement is Lu witness that Whereas, O. C. Brown has rendered me-valuable assistance in the management of my farm during the past seven years, and has attended to renting the same for me, and has attended to making the repairs on the same and collecting the rents from year to year, and has advised me during said time in all business affairs only a part of which he has been paid for, and whereas, it is necessary that I retain him in my employ as my attorney and legal adviser in my affairs and in the management of my farm as heretofore, and whereas, I have executed my last will and have appointed said O. C. Brown my executor therein, now therefore, in settlement for his said services and in consideration for said future services and also in consideration of h'is acting as said executor of my last will, I hereby promise and agree for myself, my heirs and executor that he shall have five per cent of all property of which I may die seized, the same to be paid to him in cash, six month's after the date of my death, and the said O. C. Brown is not to charge any additional amount as commission as such executor’s services.
“Signed June 25, 1909. Nancy B. McIntosh.
“Accepted June 25th, 3909. O. C. Brown.”
The claim sustained by the trial court rests on this last writing. Allowance was made to appellee according to said last writing, and is appealed from.
The appellants present a number of assignments attacking the validity and enforceability of the writing, and urge there was such conduct on part of appellee that he should recover neither under the writing nór at all.
IV.. Because, according to 18 Cyc., page 1157, “a personal representative may agree with the persons interested in the settlement of the estate as to the compensation he shall ■receive, and he is bound by an agreement to accept a less sum than the statutory compensation; while, on the other hand, he may enforce an agreement allowing him a sum in excess of that allowed by statute,” it is argued decedent may not so agree in her lifetime, and thereby bind her estate. The estate may be so bound if it be done by will. 18 Cyc. 1143. Why may it not be effected by contract? The owner of property may give it away, and, if the donor be competent, and there be no fraud or coercion, the heirs may not complain. Much less have they the right to insist that the property must come to them free from contract obligations of the owner, and without check on the method and expense of administration. We hold that contract, as well as will, may, as to heirs, direct who shall be executor, what he shall be paid, and that the estate shall pay him.
“This is to certify that the notes held by me against A. L. Butler shall be null and void after my death, and non-collectible.”
The case went off on the point that the only consideration for the claimed promise was that Butler would pay interest until the death of his father. Another defense was that it was an advancement to the son. It is said the absence of promise words is significant and may probably be controlling, “unless something in the context or circumstances shows a mental attitude differing from the expressions used.” It is significant the Templeton case holds that, though a document may be merely testamentary, is revoked, and is, therefore, ineffectual as a will, “still it does not exclude the possibility that the parties in fact
VII. There is evidence that Brown and decedent Were on friendly terms, that there was some fraternal relation, and that their dealings for many years had established Brown in the confidence of decedent. It is urged the court erred in holding that the relation of attorney and client had terminated when the contract in suit was entered into. All said is not very material, no matter how true. The court did find that the relation of attorney and client no longer existed. The only effect of a subsisting relation of attorney and client is to put claimant to the proof of fair dealing. The relation found by the court — principal and agent — does as much, and plaintiff concedes he has such burden.
Upon these premises it is urged that as, throughout the litigation, plaintiff has stood upon his claim as originally filed, and has challenged the defenders to join issue to litigate the sufficiency thereof, and as they have accepted the challenge and, acted thereon, plaintiff is estopped to now materially alter or shift his position or mend his hold. The opinion in the McIntosh case holds just this, and no more: Proceedings .to establish claims are at law; though proceedings in probate have distinct attributes of their own, they are had in the same court, the law court; that, for self-evident reasons of comity and orderly procedure, one
Akin is testimony that interveners went through the papers Brown turned over to them, but found no statement •of what decedent owed Brown, and no itemized bills; that, when Brockett came to see Brown, and he asked him to open his books and show his charges, he didn’t do it, and said some were not on the books; that decedent used to come into the office and talk to him a great deal for which he did not charge; and he said nothing as to what the contract was for, or what money he had paid decedent or been paid by her.
There is a further claim' that there was an affirmative
2.
There is a contention that Brown urged the selling of the farm repeatedly, and assigned as a reason that such sale would give him something to show “for the $1,250.” This is not very intelligible, and has the appearance of being a mere makeweight, an attempt to give color to a theory of concealment in some way. Brown fully denies having made such a request, and says the only talk of selling was on ■ suggestion by some of the interveners, after learning how much there was to pay, that it might be well to sell some 80 acres of the farm, and that he concurred in this suggestion.
3.
Something is claimed for the alleged fact that Brown refused to take his books before a named judge, in order, to see what should be done, it being said that, if he did so, he would be paid without further trouble. We fail to see how it is material to this controversy whether this did or did not occur. Moreover, the court could well find that this proposal was made in the course of a quarrel caused by the belief of Brown that he was being charged with actual fraud; that it was suggested to him it was disagreeable for a lawyer to have a lawsuit with his client,
IX. Appellant says that, in the. circumstances, it was the duty of BroAvn to tell his client just what a disinterested attorney should have told her, had she sought his advice on making this contract with Brown, and had he met this standard, he would have told decedent certain things enumerated by appellant’s argument. Appellee responds that, as to compensation, attorney and client deal at arm’s length, and this is so after the relation has ceased, and the attorney need hot show, as a. condition to enforcing such contract, that it is fair or reasonable, citing Shirk v. Neible, (Ind.) 83 Am. St. 150, and cases in the note to same on page 159; Dockery v. McLellan, (Wis.) 67 N. W. 733.
We may assume the duty is that which the appellant claims, but it. does not folloAV that Avhat is therefore to be communicated must be brought home to the client by Avords spoken by the lawyer giving such information in those very terms. It suffices that the trial court could find, and found from the eAddence, that all which is essential was known to the client. The testimony is undisputed that Mrs. McIntosh had more than average intelligence, understanding and positiveness. It appears the value of her estate Avas discussed with her, and a computation made of what the proposed fee would be on a five per cent basis; that she initiated the negotiations and urged them, and discussed them with others in advance; said that such an arrangement was desirable, and she intended to seek one; that she gave reasons resting on her own convenience and advan
It would be idle, if not impossible, to reproduce all the testimony in this.opinion. Tt suffices to say that, in substance, decedent was fully cognizant of all that is material in Avhat appellants insist she should have been informed; and that, this being so, it matters little Avhether she got this knowledge by the Avords that Brown spoke, in some other way, or by a combination of the two sources of information; The essential thing is that, under the rules under which orders at law are given appellate review, we may not here interfere Avith. the finding of the trial court that this is a valid contract.
2
The judgment must be — Affirmed.