180 Ky. 786 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming in part and reversing in part.
In the month, of December, 1914, Martlia J. Girty, a resident of Campbell county, died leaving a will by which she bequeathed to her sons, Louis Girty and George Girty, and her daughter, Katherine Hewling, $5.00 each, and to her daughter, Jennie Jenkins, the remainder of her estate, after payment of her debts. The nominated executor died before the testatrix, and Thomas M. Lett was appointed and qualified as administrator with the will annexed. Thereafter the administrator brought this suit against Louis Girty to recover the sum of $160.00 with interest at 3 per cent from Sept. 20, 1901, subject to a credit of $5.00 as of August 22nd, 1902, and $5.00 as of Nov. 22, 1908. Louis Girty interposed a counterclaim of $1,625.00 with interest from Dec. 20, 1914, and recovered a judgment for that amount, subject to the aforesaid indebtedness to the estate. Thereafter Louis Girty brought this suit against the administrator, Jennie Jenkins, George Girty and Katherine Hewling for a settlement of the estate. In this action Jennie Jenkins filed her answer and cross-petition whereby she sought
When Martha J. Girty was about 82 years of age she moved to the home of Mrs. Jenkins. She said to Mrs, Jenkins, “Jennie, take good care of me, and when I die I will give you all that I have got.” To this arrangement Mrs. Jenkins assented. The testatrix continued to live at the home of Mrs. Jenkins until her death, ten or eleven years later, at the age of 92.- During that time Mrs. Jenkins continued to take care of her mother, and during the last few years of her mother’s life she was .compelled to change her mother’s clothes and bed clothing very frequently because of her mother’s inability to control her kidneys and bowels. At the time Mrs. Jenkins made the contract to take care of her mother, she knew that her mother had on deposit something over $2,000.00, and did not know that Louis Girty had any claim against his mother until after her death. The instructions authorized a recovery by Mrs. Jenkins if the jury believed from the evidence that the labor and services performed by her for her mother were rendered by her with the intention and expectation on her part and the expectation and agreement on the part of Martha Girty, that she should be paid therefor. By another instruction the jury were told that if they believed from the evidence that Jennie Jenkins agreed to accept in full settlement of the services and articles provided, if any, the provision made by Martha Girty in her will, they .should find for the administrator, unless they further found that at the time such agreement, if any, was made, Jennie Jenkins was not aware that the debts of Martha
The next question concerns the propriety of the allowance of $250.00 made to the attorney for the administrator. It appears that the attorney resisted both in the county court- and the circuit court, a motion to remove the administrator. He also brought the suit against Louis Girty for $160.00, in which Girty succeeded in recovering a judgment on his counter-claim. While he .filed an answer for the administrator in this action, he
Complaint is also made of tbe refusal of tbe chancellor to '.allow tbe attorneys for Louis Girty a fee payable out of tbe estate. Before bringing tbe settlement suit, Louis Girty bad recovered a judgment against the administrator. Tbe real purpose of tbe settlement suit was to collect this claim. "While it is true that be contested tbe claim of Mrs. Jenkins and has succeeded in defeating that .claim, tbe services thus rendered by bis attorneys were alone for bis benefit and not for tbe benefit of tbe estate as such. Under these circumstances we conclude that bis attorneys, were not entitled to a fee payable out of tbe estate. Daugherty v. Cummins, 59 S. W. 551, 20 Ky. Law Rep. 1948; Hall v. Metcalfe, 114 Ky. 886, 72 S. W. 18.
Wherefore tbe judgment refusing Louis Girtv’s attorneys a fee payable out of tbe estate is "affirmed, and tbe judgment in favor of- Jennie Jenkins and John T. Hodge is reversed for proceedings consistent with this opinion.