Hardy v. Richards

60 So. 643 | Miss. | 1912

Reed, J.,

delivered the opinion of the court.

The question for our decision in this case is whether the chancellor erred in allowing a fee of eight hundred dollars to solicitors for complainant, to be paid out of the proceeds of the sale of property in partition proceeding, and charging it against the interests of both parties.

Dr. Cornelius Hardy died on December 13, 1908, leaving a will in which he devised a large part of his estate ■ to Thomas W. Hardy, appellant herein, to be held in trust for the support of his widow, Mrs. Sallie Bibb Hardy, during her life; she being at the time confined in the asylum for the insane at Meridiaji. On April 8, 1909, Mrs. Hardy was brought before a jury in Lowndes county and duly adjudged to be insane, and on the same day the appellee, the chancery clerk of that county, was appointed and qualified as her guardian, and still on the same day he, as guardian, filed a renunciation of the will, and on the next day the chancery court by decree confirmed the renunciation made by the guardian. On April 16, 1909, a decree was entered authorizing an appeal to the supreme court from the decree confirming the renunciation by the guardian to settle the principles of law.

On April 17th the original bill for partition was filed by the appellee as guardian against appellant, praying for partition in kind of the personal property of the estate of Dr. Cornelius Hardy, and a sale for partition of the real estate. Appellant was summoned to appear at the October term, 1909, of the court, and on October 2, 1909, he filed a demurrer to the bill. The appeal was prosecuted, and this court rendered its decision on January 30, 1911,. sustaining the action of the chancery court in confirming the renunciation of the will. See case of Hardy v. Richards, 98 Miss. 625, 54 South. 76, 35 L. R. A. (N. S.) 1210. The demurrer was not disposed of until final decision in this court. The partition suit remained pending in the chancery court until after this court had rendered its decision; then the demurrer was withdrawn, and an answer and cross-hill filed by appellant. In the cross-bill appellant described a lot belonging to the estate of Dr. Hardy, which was omitted in the original bill, and which should have been included, so that all of the real estate owned by the parties could be partitioned. He also gave a list of personal property still in his hands as executor and unsold, and asked for partition of the personal property between himself and Mrs. Hardy.

The appellee, complainant in the court below, answered the'cross-bill, and therein claimed that two notes, for one thousand dollars each, which appellant had stated in his answer and cross-bill that he could not collect, be charged against appellant’s interest in the estate. The record shows that the land was duly sold for division of the proceeds, and the personal property divided among the parties, and that the court continued for further hearing the question regarding the disposition of the two notes for one thousand dollars each.

It will be seen that at the time of the filing of the bill for partition there was pending upon appeal to the supreme court a proceeding to settle the right of the renunciation of a will by the guardian of a‘widow who was ■non compos mentis, and that this case was being actively contested, and that, unless this court should sustain the finding of the chancellor, Mrs. Hardy would not own in fee a share of the estate, and her guardian could not successfully maintain the suit filed’ for partition. We find in the brief of counsel for appellee the statement, in referring to the case which was appealed, that all action in the suit for partition “was postponed until the hearing and determination by the supreme court of the contest between the parties.” It will also be noted that appellant, even after it was necessary to withdraw his demurrer because of the decision by this court sustaining the chancellor, filed pleadings which appear to have been necessary, and in which he brought in for sale certain real estate which had been omitted in the original bill for partition, and in which he contests appellee’s claim to have certain notes charged against him, which contest, it appears, had not been finally decided when the fee was allowed in this case. It seems, therefore, that there was a real controversy between the parties in this suit, and that it was proper for the appellant to be represented by counsel.

Section 3542 of the Code of 1906 provides that, in cases of partition or sale of property for division of proceeds, the court may allow a reasonable solicitor’s fee to the solicitor of complainant, to be taxed as a common charge on all interests, and to be paid out of the proceeds in case of a sale. But it is well settled that such fee should not be allowed where there is a real controversy between the parties, and where there is a propriety in a defendant being represented by counsel of his own. In the case of Hoffman v. Smith, 61 Miss. 544, Chief Justice Campbell very clearly states the law relative to the allowance of solicitor’s fee in cases like the present one. In delivering the opinion, he said: “It should be exercised with caution, and be confined as nearly as possible to the class of cases for which it was designed; i. e., those in which there is no contest between the parties to the suit, and, therefore, no necessity for the defendants to have counsel of their own. If there is controversy between the parties, and propriety in the defendants being represented in the cause by their own counsel, they should not be required to contribute to pay the counsel of their adversary, and who antagonized their interest in the suit. To allow a fee to the solicitor of the complainant in such a state of case is an abuse of the discretion conferred by the statute.” He also stated in the opinion that, where “the defendant required a solicitor from the exigency of his cause and employed one, he should not he required to pay his adversary.”

This announcement of the rule hy Judge Campbell has been approved in the cases of Neblett v. Neblett, 70 Miss. 572, 12 South. 598, Walker v. Williams, 84 Miss. 392, 36 South. 450, and Bowles v. Wood, 90 Miss. 742, 44 South. 169. The burden of paying a portion of the fee in this case should not have been placed upon appellant.

Reversed and remanded.