145 S.W.2d 400 | Mo. | 1940
Lead Opinion
These cases involve the question of the allowance of attorneys' fees. They originated in the Probate Court of the City of St. Louis. On appeal to the circuit court an allowance of $60,000 was made in each case, whereupon an appeal was taken to this court. The cases were heard together in the probate court and also in the circuit court. They were argued together in this court. We are writing one opinion in disposing of the two cases, but a separate judgment must be entered in each case for the reason that two separate and distinct estates are concerned. To understand the situation a short history of the origin of these controversies will be necessary even though it has been stated and restated on a number of occasions. See list of cases cited in, In re Franz Estate,
On February 11, 1898, Ehrhardt D. Franz died testate. By his will his property was left to his wife, Sophie Franz, for life, with remainder over to his ten children in equal shares. Included in his estate were two hundred and ten shares of stock in the American Arithomometer Company. Later the Burroughs Adding Machine Company took over the assets of the Arithomometer Company and issued to the shareholders of that company stock in the Burroughs Company. This stock rapidly increased in value and at one time was worth millions. Stock dividends were declared from time to time as the assets of the company increased. On January 30, 1909, Sophie Franz, the life tenant, through a trust agreement, transferred all of her property, including that which she had received by the will of her husband, to G.A. Buder and G.A. Franz, her son, as trustees. The history of this trust estate will be found in the cases of In re Franz Estate,
In the year 1924, Ehrhardt W. Franz, a son, through his attorney, S. Mayner Wallace, filed a suit in the Federal court at St. Louis for the purpose of judicially establishing his interest in the trust estate. In the year 1922, two of the ten children died. They were: Walter G. Franz, who died while a resident of the State of Ohio; and Ernst H. Franz, who died while a resident of the State of California. The probate court appointed the Mississippi Valley Trust Company of St. Louis, Missouri, ancillary administrator for both estates. This administrator, in the month of October, 1924, employed attorneys Pierce and Liberman to establish the rights of these estates in the trust estate. An intervening petition, which had been prepared by attorney Wallace, was filed in the Federal court on behalf of the two estates. The case at that time had been set for trial for the following month. The trial court dismissed the petition on the theory that necessary parties had not been joined in the suit. The Circuit Court of Appeals sustained that ruling but permitted the filing of an amended petition wherein all necessary parties could be joined. [See Franz v. Buder,
Pierce and Liberman did not ask the Federal court to fix their compensation, as did Wallace. Their client, The Mississippi Valley Trust Company, as ancillary administrator, did not have any property belonging to the estate under its control until two years after the death of the life tenant, when the Federal court in July, 1932, ordered the trustees to deliver to the administrator a portion of the property to which the estates were entitled. The administrator in its final settlement in the Ernst H. Franz Estate took credit for $48,000 which it claimed it had paid to Pierce and Liberman for legal services rendered in the litigation in the Federal court. A sum of $12,000 had previously been paid to the attorneys, when the trustees, pursuant to an order of the Federal court, delivered to the administrator a portion of the property belonging to the estate. The Security National Bank of Los Angeles, California, trustee under a trust created by the will of Ernst H. Franz, deceased; Ehrhardt D. Franz and William E. Franz, distributees under the said will, filed exceptions to the item of $48,000 for which the administrator sought credit. A contention was made that the $48,000 had in fact not been paid to the administrator. We need not detail the transaction except to say that the trust company secured itself against loss in case the court should not allow the credit. The probate court sustained the exception to the allowance of the $48,000 on the theory that the estate of Ernst H. Franz had paid more than its share of attorneys' fees to Pierce and Liberman. The Mississippi Valley Trust Company took an appeal to the circuit court, which court allowed the credit in full. The exceptors duly appealed to this court.
In the Walter G. Franz Estate the trustee company filed an application in the probate court seeking the approval of an alleged agreement in the way of a compromise with attorneys Pierce and Liberman for their attorneys' fees, and authority to pay them the sum of $60,000; or in the alternative asking the court to fix the amount to *1157 be paid to Pierce and Liberman as compensation for their labors. The attorneys also filed an application in substance the same as that filed by the administrator. The probate court found that the attorneys' fees were reasonably worth $25,000 for representing both the estates in the Federal court, but allowed only $2884.62 of said sum against the estate of Walter G. Franz. The probate court in a memorandum opinion stated as follows:
"I am sure it would be grossly unjust to charge the whole of these fees against these two estates, when it is made clear beyond debate that the District Court had the jurisdiction to distribute the whole amount allowed, as reasonable, over eight and two-thirds of the interests owning the trust fund. In this court only $2,884.62 of said sum may be charged against the estate of Walter Franz. A like amount would be chargeable against the estate of Ernst Franz were it not for the fact that these attorneys have already been paid, out of the funds of this estate, $12,000 on account of these services."
[1] From the judgment of the probate court Pierce and Liberman appealed to the circuit court. The circuit court allowed the full amount asked, that is $60,000. From that judgment beneficiaries under the will of Walter G. Franz appealed to this court. In a memorandum opinion the circuit court held that the probate court was in error in holding that the other remainder interests were liable for contribution, because the Federal court had denied contribution on the application of Ehrhardt W. Franz who was the principal plaintiff and who was represented by Wallace. The Circuit Court of Appeals, however, had held that the other interests in remainder were liable for contribution and directed the district court to determine the amount. [Wallace v. Fiske,
[2] The fixing of attorneys' fees in this case was merely incidental and ancillary to the main litigation pending in the federal court. That court so treated the question. See Mississippi Valley Trust Co. v. Franz,
"This litigation has resulted in declaring the rights of these parties to this trust fund, and all of the purposes of the litigation will be served when that trust fund is paid over by the trustees to the proper parties and the trustees released. There can be no doubt that the federal court can and will protect the trustees, the heirs, and the Mississippi Valley Trust Company, as administrator, in the payment to it of the portion of the trust fund due the estate of Walter G. Franz. Also the federal court can and should provide for and see paid to the Mississippi Valley Trust Company a proper allowance and compensation for its participation in this litigation as administrator. The above will fully serve all the purposes of this action and protect all parties in every way connected with this litigation."
In the case of Wallace v. Fiske,
"However, all the children and lineal heirs of Ehrhardt D. Franz were before the court in the original equity cause to which this proceeding is ancillary. This is in no proper sense a separate and distinct suit. While the respective remainder interests are in some respects distinct and separate, nevertheless the entire fund was brought into the District Court from the outset, and the chancellor was clothed with power to make such orders incidental to its administration as equity and good conscience demanded. Awards of counsel fees and costs, where justified, are such incidents."
This court, under the above rulings, could order the parties to apply to the federal court to settle their differences even though the probate court had concurrent jurisdiction to try the question of the amount of attorneys' fees to be assessed against the two estates. However, the probate court decided the case on the merits. It was tried de novo in the circuit court. The abstract of the record in each case, as filed in this court, contains over six hundred pages. Much time and labor have been spent in these cases on part of the courts as wall as the attorneys. We have therefore reached the conclusion that in the interest of all parties concerned we will decide the case on the merits and will take into consideration the rulings of the federal courts as found in the cases above cited. Disposing of the case on the merits may save the expense of further litigation.
[3] Appellants in both cases briefed at length the question of the validity of the probate court's appointment of the Mississippi Valley Trust Company as ancillary administrator. The contentions made by the parties with reference thereto were fully answered by the federal court in the case of Mississippi Valley Trust Co. v. Franz,
[4] In the Walter G. Franz Estate, case number 36034, appellants assert that Pierce and Liberman were strangers to the record and therefore had no right to appeal from the judgment of the probate court. The administrator had filed a petition in the probate court asking an adjudication of the question of attorneys' fees. Pierce and Liberman also filed a petition in substance the same as that filed by the administrator. The petitions were treated as seeking the same relief, and as far as we can learn from the record were heard together. The ruling of the probate court was in effect a ruling on both petitions even though they were not mentioned in the judgment. The question could have been litigated if the petition of Pierce and Liberman had been the only one filed. In such a case they would have been the only parties plaintiff and there would not have been any question of their right to an appeal from an adverse judgment of the court. The mere fact that the administrator also filed a petition asking the same relief did not change the situation. We rule that under the statute, Section 284, R.S. Mo. 1929, Mo. Stat. Ann., page 177, Pierce and Liberman had the right to appeal. That section concludes with the following words:
"And the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration."
[5] On the merits of the case our comments and conclusions are: Attorneys Pierce and Liberman had the opportunity to apply to the Federal court for relief. In that court their clients, against whom they now seek a judgment could have had the benefit of litigating the question of contribution from the other interests in remainder. Since the attorneys did not see fit to apply to the Federal court, but for reasons best known to themselves applied to the State court for redress, it would be manifestly unfair to assess against the estates they represented more than the share which those estates should bear. It must be remembered, however, that these two estates did in fact derive a great benefit through the litigation in the Federal courts. In the finding of facts, made by the Federal court on March 30, 1940, when the court made an order allowing an additional fee of about $66,000 to Wallace, the court found that each one-tenth interest had been saved inheritance taxes, Federal and State, and administrative expenses in the sum of approximately $295,000. See In re Franz *1161
Estate,
Addendum
The foregoing opinion by WESTHUES, C., in Division Two, is adopted as the opinion of the Court en Banc. Tipton, Clark,Hays, Gantt, JJ., and Leedy, C.J., concur; Douglas andEllison, JJ., concur in result.