*1 46,313 No. L. (Clyde Deceased.
In re The Estate of Seeger, Margaret Sullivan, Appellants, C. v. Wallace and Glenn J. Deceased, Seeger, Margaret Administrator of The Estate Appellee.) 407)
(490 2dP.
Opinion filed 6, 1971. November George Nellans, Norton, argued the cause and on the brief P. appellants.
for argued Sullivan, Phillipsburg, cause and was on the brief W. C. appellee. argued Hahn, Phillipsburg, cause and on the brief Lowell F. Gayle Seeger, Incompetent. guardian ad Edward litem
The opinion of the court delivered ap- C. This stems from a over the appeal controversy Fatzer, J.: *2 pointment an Margaret Seeger, of administrator for the estate of deceased.
The facts Mar- briefly which are not be stated: dispute may 11, 1970, garet died Seeger Phillips intestate on a resident of April County, Kansas. heir at an incom- She left as her sole and law son, and had petent Gayle Edward of who was Seeger, years age, for a been number Statе Hospital of a resident of the Winfield years brothers, and Training Clyde Center. her two surviving Also were Kansas, L. Smith and Glenn both residents Jennings, of J. sister-in-law, and a Grote—a sister of her deceased husband. Mary Those three persons are the relatives of the living incompe- closest son, death, tent who his sole heirs. upon his constitute 17, 1970, administration, On filed a April Clyde Smith for petition asking Allen L. Ballinger, banker at Jennings, administrator of Ballinger the estate. Neither the Smiths nor were creditors the estate. The was and filed petition prepared by Wal- Sullivan, lace C. the for Phillipsburg, family attorney the de- cedent and her The deceased husband. was set for hearing May 15, 1970. Proper notice of the and place time was hearing duly Winfield, published served at upon incompetent as sole heir of the K. S. A. decedent 59-2209. pursuant 21, 1970, Hahn,
On April on Sullivans Lowell F. petition, an attorney ad litem Phillipsburg, for appointed guardian 14, 1970, son incompetent heir. On May guardian sole ad litem an filed answer in which objected to the appointment of Ballinger administrator and nominated Sullivan to act as ad- ministrator. The answer presented the reasons the objections to the appointment and reasons for the nomination of Sullivan. The reasons largely were based on economy in adminis- tration —Sullivan local attorney and Ballinger living some sixty miles from Phillipsburg. Service of the answer made until the any party day in the follоwing probate court. 15,
On May hearing for the appointment for an admin- istrator held in the probate court of Phillips County, the Hon- orable Martha Kellogg presiding. Others present Clyde were Smith, Sullivan, Hahn, Glenn and Ballinger. There was some dis- cussion, it but does not appear any evidence was introduced. Fol- lowing hearing, Sullivan was appointed and qualified as ad- made findings no written ministrator. There were respect facts disputed court. A detailed statement mоre issues as the specific discussed will be to Sullivan’s appointment are considered. to the Glenn Smith 4, 1970, appealed On June appointing from order of Phillips County,
district court and directed the reappointed administrator. district The heir in appeal ad litem to represent the incompetent litem nominating Sulli- ad of the guardian The answer proceedings. court. in the district renewed as administrator was van court and on July the district trial before on for matter came filed, of law were which 27, 1970, and conclusions fact findings of quote part: “Findings of Fact County, attorney Phillips Kansas, practicing Sullivan is a “W. C. legal years matters many represented and her husband decedent has *3 property and the decedent of extremely owned the familiar with and was counsel, represented Sullivan, along other also affairs. Mr. her business presently appeal Supreme on the is another case which the decеdent Court. County 1970, Judge Phillips appointed May 15, C. “On of W. the Probate give of estate and directed that he bond the Sullivan as administrator said Thirty ($30,000.00) of as such administrator. sum Thousand DoEars The hearing petitioner, Smith, present the of the L. time and the was appointment appointment no of Mr. Sullivan and made to his at time. appeal 4, 1970, by Clyde “An was filed on L. Smith Glenn June J. 16, 1970, held in the District Court. On a de novo was one trial June Gayle Seeger guardian July 6, as of Edward and on Lena East was 1970, request for the of C. filed in the Probate Court W. Margaret Seeger estate.” as administrator of the of Law “Conclusion appointing “The Court finds that the order of the Probate Court W. C. Margaret Seeger, deceased, of proper, Sullivan as administrator the estate of respects; Supreme the in aE and that under decisions of Kansas, the Court of the at litem entitled to select or recommend such administrator represented since he the sole heir thе of decedent.” findings conclusions, with its harmony the court appointed Thereafter, Sullivan as administrator. Clyde Smith and Glenn Smith this appeal. perfected
The appellants eight points for reversal. present They have abandoned their seventh and as the point, eighth point becomes immaterial if the administrator
largely properly appointed, proceed to consider the first six which the points appellants consolidated in argument following their brief for the as-presenting separate issues:
1. Was the court nominee obligated appoint the administrator, named in the as absent a petition finding of incom- petency or unsuitability?
2. Did the district court err in the at- appointing petitioner’s torney as administrator because anof conflict of alleged interest?
With the respect to first the question, appellants rely heavily K. S. A. 59-705 which reads: person dying “Administration granted the estate of intestаte shall be persons mentioned, competent one or more of the hereinafter suitable discharge trust, following and in the order: “(1) spouse surviving kin, both, may The or next of or de- as court termine, person persons any or some or selected them or them. (2) incompetent persons unsuitable, accept, If all such are or or do not may creditors, granted administration be to one more of the or to a nominee or nominees thereof. (3) Whenever the court is for determines it the best interests persons therein, may granted estate all interested administration any person, other whether interested the estate or not.” contend that since there was no appellants surviving spouse
and the son was kin had the incompetent, they were next of right to control is under the statute. The point not well taken. “Next ldn” means those who inherit from decedent under law of descent and distribution. Although has had oсcasion to interpret phrase used in statute, particular did so in a it case involving the Wrongful Death Sill, 300, Statute. In Ellis v. P. 2d third paragraph syllabus reads: *4 “. . . ‘Next of ldn’ means those who inherit from a decedent the under
law of and descents distributions.” The appellants would no doubt be of kin next of the incompetent however, nephew, they son—their are not the next of kin of the decedent. The statute does not the recognize next of ldn of the next of kin of the deceased in the selection of an administrator. The only person recognized the by statute is the son incompetent —the at surviving heir law and the next ldn. Being of incompetent, a guardian ad litem was properly appointed to represent him. The ad litem then guardian stood in the position of the incompetent
155 in In re son of Estate question disposed and next of kin. This was Paronto, this 85, There, had 2d 302. court under Kan. P. of consideration here the except facts similar to what have very child, kin of incapable next of a and therefore three-year-old a it selecting nominee as the was said: opinion administrator. 59-705, Supp., provides “G. S. 1945 that letters administration of shall be granted persons they competent classes, providing of certain are suitable discharge provides order shall be the trust. section also in what The given preference. surviving spouse.’ designated is There In the first class ‘the surviving spouse Next in that nо a widow. here since Mrs. Paronto was boy. three-year-old a class is named of ldn.’ of kin ‘the next The next here was demonstrated, however, Obviously appointed. that he could not have be We the duty guardian him. ad Had it was the of court to name a litem the some guardian pleading selected this court done the have filed would wished, compliance person in on behalf of the minor and next of kin whom he then had statute, appointed. probate have court would with the The n the any duty power persons as to such to exercise discretion its whether however, incompetent necessary, were or unsuitable. It have been any finding on and not made the court without be based evidence 94.) whatever, (l.c. the . .” evidence as was case here. . bar, case ad litem was In the reasons, select Sullivan valid by proper did based pleading kin. the behalf of next of When incompetent discharge cоmpetent determined Sullivan was suitable West, trust, the re Estate his required appointment. (In statute abuse of discretion 483, 2d There was no 195 P. 616.) be sustained. the court and contention cannot appellants’ of Sullivan next appellants contend at the time he employed administrator was because improper Smith to obtain the petitioner Clyde of the his nominee named in petition, acceptance appoint- interest. our They ment constituted a conflict of direct attention to EC 5-15 of the Code Professional Responsibility, approved in No. reads: this court Rule which principle by lawyer requested representation or to “If a undertake continue is weigh differing interests, carefully having potentially multiple he must clients impaired loyalty may if he possibility judgment divided be or his against employment. accepts all doubts He should resolve or continues the represent litigation lawyer propriety representation. should A never interests; differing multiple and there are few situations in which clients with litigation multiple poten- representing clients justified he would differing tially . . .” interests *5 156
Our attention is also directed to DR 5-101 of the Code of Pro- (A) 501, fessional in the court Rule No. which responsibility, adopted by reads: “Except disclosure, lawyer with the consent of his client full shall after accept employment judgment professional if the on behalf exercise his business, reasonably may financial, his client will be or be affected own
property, personal interests.” The question was also in State v. passed Leigh, 549, 289 774, P. 2d wherein it was said: “. . . long firmly The inviolate rule in has been established both Canons opinions by judicial attorneys Professional Ethics and cannot represent conflicting discharge interests or duties. undertake to inconsistent attorney When an has once been received of a retained and the confidence client, he cannot the services of those enter whose interests are adverse to that employment closely his client or take matters related to of his so those as, effect, 552.) part (1. client or former client thereof. be a . . .” c. See, also, State v. Young, 196 P. 2d Kan. 256. course, disclosure,
Of with the consent after a of the client full an attorney is not so restricted in a such as we here. situation have most, At circumstances, under the interests only potеntially differing ad litem had nominated existed. The guardian opposi- tion to the of the nominee well petitioner. petitioner might if his appointment desired Sullivans nominee was to be op- posed by the guardian ad litem. We must examine the record con- fully see if the informed situation and petitioner of his either attorney sented to the direct or im- appointment matter was plied fully consent. The covered evidence before the district court. the probate judge,
Martha testified: Kellogg, Martha, you “Q. day, 15th, I ask if recall the was it will hadwe June Margaret Seeger hearing on the Estate for the of administrator your court? Honor, picldish, “Mr. Nellans: Your I be don’t want to but I think it was May 15. say thought going “A. I I it was than earlier that. “Q. you Do an recall was made to the of Mr. Ballinger by guardian litem, ad Lowell Hahn? “A. Yes. “Q. And, my name, ad Sullivan, that the litem submitted W. C.
as nominee to administrator?
“A. That is correct.
“Q. happened thereon, you And then what from can recall? *6 you discussion, you would whether I asked Well, some had “A. after we you if it was you would being said accept job administrator as everybody to be satisfied you But wanted right the Smith brothers. all with objected time, nobody but the whole conversation and I don’t remember appointed having you time. at the to got an ad- time, to have say “Q. ‘We Smith at that Did ministrator?’ Yes, he did. “A. “Q. That’s all.”
She further testified: Martha, you, that I impression, weren’t You were under the “Mb. Hahn: incompetent being on the object Ballinger, but did to Mr. not on the basis
bаsis of suitable? day. Yes, you I think mentioned that that “A. having disagreement Mr. Sullivan “Q. objection, to no And there was no why you and did time, ahead particular went at that and that’s way you it the did? objection. right, “A. no That’s there was journal “Q. controversy you go to ahead and make There was no real entry as I recall? right.” “A. That’s
Mr. Sullivan testified: "Q. Sullivan, petition you Mr. did for Mr. Smith? file the prepared and filed it. I with him “A. it and came over to the Courthouse oc- “Q. you testimony to Courtroom as what And have heard here in the hearing? curred at the “A. I did. you any objections serv- “Q. you to if had Did ask the Smith brothers ing as administrator? as administrator if I serve “A. When the Court asked me boys, Ballinger, Estate, her, Margaret Seeger explained and the Mr. I them, petition want to Clyde, I wouldn’t Glenn that I had filed the right them; around I turned unless it all with serve as administrator was and asked them. to them they say? “Q. did What I don’t got Clyde said, ‘Well, an administrator’ to have “A. we have anything. Glenn said believe anything? say “Q. Did Mr. nothing. Ballinger said Mr. “A. lettеrs issued event, objection and the Court any no raised “Q. there was you, she? didn’t Ime. issued letters to Court raised. The no “A. There was Ballinger going from the down the walk boys and Mr. the Smith talked my perfectly lovely. They satisfied everything were Courthouse appointment.” Kinter,
Mr. Leon as a hired who the decedent employed hand farm, operate testified: “Q. you can, you Peg. near as as relate the conversation between Just object you object I will to' it betweеn and —I will to it “Mr. Nellans: a matter of form. I don’t think can relate conversation like this. “The Court: Overruled. “A. making just said about out a about I told will. She talked that. Just go will, regardless her go make a to Wallace Sullivan and out a make will of who it hurts. “Q. say, anything? What else did she “A. stopped then, it, kind of all of we said that several but Just always just times. I go had her told to make out her will. “Q. say anything estate, Did she it or about who she wanted to handle her anything?
“A. Yes. *7 “Q. say? What did she “A. Wallace Sullivan. “Q. She said she wanted to her estate? Wallace Sullivan handle Absolutely.” “A. court, Smith testified that in the before the hearing probate had nominee, he not been and think informed had no reason to Ballinger, would not be appointed administrator. testified He direct examination as follows: Well, suggested “A. Mr. Hahn be the ad- that Wallace Sullivan should
ministrator. “Q. say Hahn, you referring You Mr. are Hahn Lowell here? right. “A. That’s “Q. suggested He that Mr. Sullivan should be administrator? the “A. Yes. “Q. And, you being did consent to Mr. Sullivan the administrator? No, “A. I didn’t. “Q. Ballinger being Did Mr. consent to administrator? Mr. the No, “A. didn’t. he “Q. you right you Did Mr. Sullivan ad- ask if all if he were it was with ministrator? Ballinger anything say “A. He if had pres- asked he said the time. ent “Q. you anything say Did have time? at that it, approve way. just “A. I didn’t either I was kind of shocked. “Q. approve you today? Do of his administrator No, approve “A. I don’t of it.” He testified on cross-examination: further office, Probate Court’s after Hahn Mr. nominated me “Mr. Sullivan: my administrator, do, or submitted name to be what did thе Court did what Kellogg Martha do? Did ask me if she I would serve? Yes, did. “A. she say? did I What “Q. you “A. You said 'would. petition you filed this say I had Is all Did I I said? “Q. say boys, right you I that? I didn’t wanted it to be all “A. I don’t that. remember got you ‘Well, an administrator? say, to have And didn’t we “Q. yes No, you or no.” “A. and I never said if satisfied asked we were being appointed, your “The objection Mr. Court: What’s to Mr. Sullivan Smith? somebody “A. I just felt like it a little bit better if we had out (Jennings, Kansas) there to be closer to us. Why, “The property (Phillips County)? Court: isn’t the all here down Yes, “A. (Ballinger) qualified just anybody but he as well as else.” Considering court, the record the before district are opinion Sullivan did not sides in change controversy. He acted nomination of the ad litem had the who statutory preference nomination, after the found him to be competent trust, and suitable for the and then only after court, he Smith brothers that explained Ballinger, them, had filed the for administration petition would not serve as it all with them.” right administrator “unless was When consent, Sullivan asked Smith brothers for no made, “[w]ell, and Clyde got said we have to have an adminis- following trator.” As walked from courthouse hearing, satisfaction with Sulli- expressed brothers vans appointment.
It would the facts stated conclude the appel- be difficult under *8 It would be taking place. of what fully apprised lants were not at give did not con- implied least to hold difficult equally is consent defined in 15A Implied appointment. to Sullivan’s sent Consent, 576, S., as follows: p. C. J. actions, facts, by signs, or or inaction or is manifested “That which given. consent has been It
silence, an inference arises from which disposition permit has person of conduct shown to his line exists where * raising thing person without thereto.” to do a certain another court, Smith testified that when asked if he In the district satisfied, say did or no. Sullivan and the yes he not asked if he had any objection testified that when to Sullivan judge “well, administrator, he replied, got have bеing administrator.” not consent may an appellants have 160 court, an and then
appointment of administrator in the probate object district court. appeal
The record has been and other claimed errors carefully examined considered. find appellants justify We no error which would a reversal of decision. The is affirmed. judgment J., dissenting. gives majority opinion
Fromme, service to Code but lip Responsibility permits our of Professional a viоlation of one of the basic guiding every rules lawyer integrity — 438, and loyalty to his client. 35 Kan. Haverty Haverty, v. (See 364, 1, Pac. and v. 380.) New 119 Pac. There is no profession which so beset the of him many temptations path who is to loyalty. serve strict There integrity pitfalls are every to be avoided if the name of the bar step integrity good lawyer of administration of the law are A must upheld. exercise well as prudence self-denial as moral if he is courage to maintain the ethical standards high expected lawyers. Lund, 168,
The Utah court in Smoot v.
13 Utah 2d
sponsible (p. 172.) therefor.” The Connecticut court in Grievance v. Rottner, Committee 59, Conn. 203 A. 2d had this to say: “. . . engages When a client lawyer given piece services of a in a that, business he is entitled to feel finally until that disposed business is of in manner, some loyalty he has the undivided of the one whom looks as his champion. If, advocate and case, his as in this he is sued and home attorney, attached his own representing who is matter, him in another all feeling loyalty necessarily destroyed, is profession exposed and the is to the charge that it money.” (p. is interested 65.)
In the present case when W. C. Sullivan undertook to Allen L. Ballinger appointed administrator of the estate of Margaret deceased, Seeger, he did so as attorney for Clyde and Glenn Smith. The relationship between lawyer and client attached whеn the work was begun and it continued thereafter until the lawyer-client rela- *9 and Glenn tionship Clyde terminated. C. Sullivan owed W. Smith clients strict to them as but to integrity loyalty, only their cause. no less Clyde expect and Glenn Smith had right this. than
The record before and Glenn clearly Clyde this court shows that 15, 1970, attended court that their choice May believing of administrator, Allen and that appointed L. Ballinger, W. C. Sullivan with would contend strict integrity loyalty that cause. They appointment knew about nothing prior Lowell F. Hahn as the communications guardian ad litem of prior between their On the attorney day and the ad litem. while in hearing other open attorney court first learned the in court (Mr. and their Hahn) attorney to the objected seemed to agree with It is small wonder under these circum- him. client, words, said, “Well, stances that a loss for got Glenn, client, to have an administrator.” said The other When he nothing. Clyde was as a consented to Mr. asked witness if it, answered, Sullivan “I didn’t either approve way. I was just kind of shocked.”
Under the circumstances W. Sullivan was not a foregoing C. suitable person to lawyer- trust. He was bound discharge client of Mr. relationship to contend the appointment Strosnider, his clients had less. re right expect no (See 480, 2d 1058 The representation.) P. as to dual guardian ad litem had The court right. no prior could not erase the of interest and self-interest personal conflict which C.W. his clients could do this. Only hаd.
The is consent which the uses to decision majority justify of the reasons for superficial disregard found to exist total which by implication rule Consent disqualifies attorney. should not be in cases kind. The recognized integrity of this name of the be thus good bar and of the courts cannot maintained eyes Full disclosure public. required disci- rule is not a client plinary made when and his cause is abandoned notice, open during hearing, without advance “I wouldn’t serve as saying, want tо administrator unless it was all them.” right require
Full disclosure should that the alternatives available be with the client. In this adjournment case explored the hearing should have been clients requested. should have been advised *10 if case prosecute attorney
of their hire another right to that Mr. Sullivan advised so have been they They desired. should to contend duty of his was not because suitable as administrator re- could Mr. for the forced case be unsuitability. The clients should in no move otherwise, consent, an explanation into or without implied Sullivan proposed exact interests which Mr. conflicting nature the possible had a to know understand They right embrace. client-attorney conflicting effect interest them. relationship existing between previously in this There was no full of interest W. C. Sullivan disclosure in the There was no consent his clients for him to engage case. interest as administrator. Therefore he was unsuitable conflicting appointed regardless reason of the interest to be conflicting litem, urged by whether ad Wahl, sole heir else. Wilson v. anyone (See 804.) P. 2d judgment W. C. Sullivan should appointing be reversed and
the case remanded. J.,
Schroeder, joins foregoing dissent.