Howell v. Myer

Oct 15, 1913
Versions:63 So. 233
105 Miss. 771
OooK, J.,

delivered the opinion of the court.

Mrs. Dоra Howell, executrix of the estate of T. S. Howell, ‍‌​‌​​​‌​‌​​​​‌‌​‌‌‌​‌‌‌​​​​​‌​‌​‌‌‌​​‌​‌‌​​​‌​‌​‍deceased, filed her petition in the chancery court of *775Jones county against Mrs. Alice L. Myer, administra-trix of the estate of J. P. Myer, deсeased, alleging that the said J. P. Myer departed this life in 1907, leaving a large estate, and his widow, the appellee, was appointed administratrix of his estate, and proceeded with the administration thereof; that immediately after the death of said Myer, T. S. Howell, deceased, who was an attorney at law, was summoned into consnltation with reference to said estate; that thе estate was one of unusually large proportion consisting of assets and liabilities scattered -over large areas of country, to the sum of several hundred thousand dollars, and its administratiоn was burdened with serious and complicated difficulties; that the said T. S. Howell, deceased, proceeded as solicitor for said administratrix with diligence, caution, good judgment and considerable skill to the handling of all the manifold legal affairs thereof, and so continued up to the time of the death of said Howell, in 1910. The petition then alleges that there was a contract ‍‌​‌​​​‌​‌​​​​‌‌​‌‌‌​‌‌‌​​​​​‌​‌​‌‌‌​​‌​‌‌​​​‌​‌​‍between the ad-ministratrix of J. P. Myer, deceased, and the said Howell, as to his fee and the amount therеof, which was fixed at five thousand dollars for the services to be rendered by him in the winding up of said estаte and the discharge of said administratrix. It is further alleged that upon this contract the administratrix had paid to Solicitor Howell the sum of twenty-five hundred dollars previous .to his death, and that he had in the mеantime rendered service to the estate which was fairly worth four thousand dollars. It is further allegеd that the administratrix could secure the services of a solicitor to render all other serviсes in the winding up of the estate, which had not -been done by the said Howell, for the sum of one thousand dollars, and thus, in all events, the estate would not be required to pay more than the original amоunt of five thousand dollars which the administratrix had ■ con-, tracted to pay Solicitor Howell. The рrayer of .the petition is that the administratrix of the estate of J. P. *776Myer, deceased, be direсted by tbe court' to pay to the executrix of the estate of Howell, deceased, the sum of one thousand five hundred dollars in settlement of the amount which it is alleged was due him by reason of his services ‍‌​‌​​​‌​‌​​​​‌‌​‌‌‌​‌‌‌​​​​​‌​‌​‌‌‌​​‌​‌‌​​​‌​‌​‍.rendered under the contract, as above stated. The executrix demurred to this petition, on the ground that the facts set out in the said petition do not entitle petitioner to any relief, which demurrer was sustained by the court.

We think that the action of the chancellor was correct in sustaining the demurrer, as the debt claimed was not a claim against the estate. This cоurt has held in a number of cases that: “Ordinarily, debts contracted by executors and administrators are obligatory ‍‌​‌​​​‌​‌​​​​‌‌​‌‌‌​‌‌‌​​​​​‌​‌​‌‌‌​​‌​‌‌​​​‌​‌​‍only as personal obligations, and cannot primarily bind the estates committed tо them, except in cases specially authorized by statute. This has been repeatedly held true of attorney’s fees due for professional services in the management of estatеs.” See Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 54 Miss. 467; Hines v. Potts, 56 Miss. 346; Parham v. Stith, 56 Miss. 465; Stern v. Hampton, 73 Miss. 555, 19 South. 300.

This court has also decided that a party to a special contract cаnnot recover ‍‌​‌​​​‌​‌​​​​‌‌​‌‌‌​‌‌‌​​​​​‌​‌​‌‌‌​​‌​‌‌​​​‌​‌​‍on a special contract, because he had not performеd it, nor upon the quantum meruit, because of the existence of the special contract. Timberlake v. Thayer, 71 Miss. 279, 14 South. 446, 24 L. R. A. 231.

But it is insisted that Judge Howell was prevented by death from performing his contract to wind up the estate, and for this reason the administratrix should be directed to pay him the value of his services performed before his death. We think, under this court’s former decisions, this position is not maintainаble. While an act of God will excuse the performance of a duty created by law, it will not excuse a duty created by contract. Harmon v. Fleming, 25 Miss. 135; Mitchell v. Hancock County, 91 Miss. 414, 45 South. 571, 15 L. R. A. (N. S.) *777833, 124 Am. St. Rep. 706. See, also, Walton v. Hollis, 16 South. 260.

Affirmed.

ON SUGGESTION OE EBEOE.

This case was decided at a former day of this term аnd affirmed, the court giving two reasons for affirmance, to wit: First, the debt sued on was not the debt of the еstate of decedent; second, the debt sought to be recovered was based on an entire contract, and petitioner could not recover on the contract, because he had not performed it, nor upon the quantum meruit, because of the existence of the contract.

The latter reason is sharply challenged by the suggestion of error on file. In the original briefs filed in this case the numerous eases decided by the Ameriсan courts differentiating this case from the cases heretofore decided by this court, and followed in the present case, were not cited by counsel. Inasmuch as the affirmance must stаnd on the first ground, without committing the court to a different view than the one heretofore expressed on the second ground, wet have decided to withdraw all part of the opinion referring to the entire contract feature of the case.