77 Neb. 674 | Neb. | 1906
On the 14tb day of January, 1902, Christian C. Rapp departed this life in Donglas county, Nebraska, leaving a last will and testament, in which he nominated L. E. Roberts as executor, and by the terms of the will provided that, ' after the payment of his debts, the residue of his estate should be devoted to the erection of a suitable monument over the grave of his parents. When the will was offered' for probate by the proponent, a contest was filed against it, and, pending the probate proceedings, Roberts was appointed and qualified as special administrator of the estate. He thereupon employed the claimant in this cause of action, Charles S. Elgutter, a practicing attorney at the bar of Douglas county, to defend the contest of the will and to perform other services for him as special administrator of the estate. At the trial of the contest in the county court, judgment was rendered in favor of the proponent, and the will was admitted to probate. This judgment was appealed from by the contestants, but the appeal was dismissed on motion of the proponent in the district court. After the will was finally admitted to probate, Roberts qualified as executor and proceeded with the administration of his trust. Mr. Elgutter filed his claim in the county court for legal services rendered in behalf of the special administrator and in the defense of the contest of the will, all in the sum of $500. The executor contested this claim, alleging that, before rendering any services in the contest of the will, Mr. Elgutter had agreed to try the case for $50 in the county court and $50 additional compensation if the case was appealed to the. district court. It was agreed between the parties that the extra services rendered for the special administrator were of the reasonable value of $50, and, on a hearing of the claim in the county court, judgment was rendered for $150 in favor of the claimant. To reverse this judgment the claimant appealed to the district court, where, on a trial to the court and jury, a verdict was returned in
As before stated, the reasonable value of the extra services rendered for the special administrator was agreed upon, so that the only question at issue here is as. to the allowance for services rendered in the will contest. The testimony of the executor tends to show that Mr. Elgutter agreed to defend the will for the specified sum of $50 in the county court, and $50 in the district court. His testimony is corroborated in this particular by the evidence of the clerk of the probate court, Mr. Sunblad, who was present when the contract was made. He also testified, however, that Mr. Elgutter said: “It didn’t make much difference what arrangements they might make, that the court would fix the fee anyhow.” Mr. Elgutter admitted that he may have named $50 in each of the courts as the probable fee, but that this was merely a matter of opinion, without knowledge of the full extent of 'the services to be rendered, and that what he intended to offer was to render the services for such sum as the court would find to be reasonable and just. We are satisfied, from an examination of the testimony, that the trial judge was fully justified in finding, as a matter of fact, that the conversation had at the time of the employment led the executor to believe that the sum intended to be charged for the services was $50 in each of the courts, and no more.
The claimant practically concedes that the evidence is sufficient to support the findings of fact in this branch of the case, but he contends that, because the contract with Roberts was not binding upon the estate, it could not and should not be held to have bound the claimant; and that, as the trial court in his special finding held that, aside
There is a further contention in the brief of the claimant that, because a motion for a new trial was granted after the first trial of the cause in the district court, and because one of the grounds of the motion was the refusal of an instruction practically directing a verdict for the plaintiff for the reasonable value of the services rendered as shown by the testimony, the action of the trial judge sustaining this motion was binding as the law of the case on the judge who subsequently tried the cause. This contention is wholly unavailing in any view of the case, and especially in view of the- fact that numerous reasons were alleged in the motion for a new trial, and there is nothing in the judgment granting it which shows the reason of the judge for doing so.
Finding no reversible error in the record, we recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.