183 Ky. 305 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
Harry Crawford, died intestate, on the lOtli day of February, 1911, leaving, surviving him, a daughter, Mollie Black, who was the wife of General E. Black, and ihe mother of an infant son, Harry Crawford Black.
Following the execution of the deeds, on the 30th day of September, 1909, a judgment was rendered, in the proceeding, by Harry Crawford, to adopt the two Irvine children, as his heirs, granting the relief asked.
After the death of Crawford, the lands in Madison county, were divided between Mollie Black and her son, and the two Irvines, and deeds were made, under a judgment of the circuit court, by which the commissioner of the court, conveyed to William Irvine, 281.62 acres of the lands, and to Marcus Irvine, 221.12, acres of the lands. Bettie Irvine was appointed and qualified, as the statutory guardian of William and Marcus Irvine, and as such, had in her hands, a promissory note, for the sum of $8,619.76, of which the interest owned by one of her wards, was, $4,277.40, and the interest owned by the other, was $4,342.36, all of which they received as the heirs, by adoption, of Harry Crawford.
Thereafter, in February, 1915, one Anna Karnes, claiming to be a legitimate daughter of Harry Crawford, instituted suit, in the Clark circuit court, against Mollie Black, Harry Crawford Black, Bettie Irvine, as guardian, and her two wards, William Irvine and Marcus Irvine, and by which, she claimed, that she and Mollie
Bettie Irvine, as the guardian for William and Marcus' Irvine, contracted with two lawyers, J. M. Stevenson, and J. C. Chenault, to represent her as guardian, and to defend the action for her wards. The contract was reduced to writing and signed by the parties, and by its terms, it was agreed, that the lawyers would attend to the preparation of the defense to the case, and to take all necessary legal steps for the protection of the interests of the wards, in the circuit court, and in the event of an adverse judgment, would prosecute an appeal to the Court of Appeals. A retainer of $100.00 was to be paid, and the lawyers were, also, to be paid fees, to be agreed upon by the parties, and if an agreement could not be made, then, the fees, should be fixed by the judge of the court, or the Madison county court. The lawyers were, also, to be paid their actual expenses incurred in the preparation of the action for trial. ,On the 4th day of April, 1916, the action ended, by an agreed judgment of the circuit court, by which the action was dismissed and each party was adjudged to pay the costs created by him. Afterward, a motion was made, by the plaintiff, to set aside the judgment, but, this motion was defeated and overruled. Under its terms, the contract of employment of the attorneys, thus ended. Ball v. Lively, 2 J. J. M. 181. Richardson v. Talbott, 2 Bibb, 382.
This action was brought by Stevenson, against William and Marcus Irvine, and Bettie Irvine, as their guardian, to .recover against the estates of the infants, and to be paid out of their estate, a fee for his services, in defending the suit of Karnes, against them, in the sum of $2,500.00 and $85.00, his actual expenses, in the preparation of the action for trial. John C. Chenault was made a party defendant, and by a cross-petition, set up a claim for his fees, in the same cause, and his actual expenses. The petition described the real estate and personal property owned by each of the infants, and asserted a lien, thereon, to secure the payment of the fee, sued for, and the cross-petition of Chenault, contained similar averments. The guardian, by answer, put in issue the reasonableness of the amounts of the fees sued'for, and denied the accounts for expenses, and thereafter, offered to confess a judgment for $1,250.00 to Stevenson, and a like sum, in favor of the cross-petitioner, Chenault, with certain sums, theretofore paid, to be deducted.
The court, after hearing a large quantity of evidence, fixed the amount of the recovery, in favor of Stevenson, for his services and expenses, at $2,085.00, and in favor of Chenault, the sum of $942.00 for his services and expenses, deducting sums, already paid. It was, further adjudged, that the estate, of each infant, was to pay one-half of the sums for which a recovery was adjudged and that their estates were bound for the payment, and for the purpose of enforcing the payments, that the note, in the hands of the guardian, should be sold, in satisfaction of the judgment, and if from the sale of the note, a sufficient sum to pay the judgment, was not realized, then, a sufficiency of the real estate of the infants to finish satisfaction of the judgments, should be sold. From this judgment, the infants, by their guardian, have appealed to this' court, and seek its reversal, upon three grounds:
(1) The court erred in allowing a separate fee, in favor of each plaintiff, instead of allowing one fee, in favor of both plaintiffs.
(3) The manner directed by the court for the enforcement of the judgment, was oppressive, and erroneous.
The grounds of reversal will be considered in their order.
(a) A guardian, in the defense of a suit against his wards, is not confined to the employment of one attorney, but may engage more than one, or more than one partnership of attorneys, if the character of the litigation, the services to be performed, and the interests in controversy, make reasonably necesary, the. services of more than one attorney to properly safeguard and protect the interests and rights of the wards, and if the guardian pays the attorneys, for their services rendered, out of the estate of the ward, he will be allowed credits for such payments, in a settlement of his accounts as guardian, if it shall appear, that the services, paid for, were actually performed, under contracts, with the guardian, by persons authorized to practice law in the courts and of .recognized skill in the law, and if it shall, further appear, that the services, were reasonably necessary to protect the interest of the infant wards and the sums paid, were not in excess of the reasonable value of the services. Chapline v. Moore, 7 Mon. 150. The credits are allowed, the guardian, because the court should approve, in this particular, when done, what it would have directed to be done, if applied to, beforehand. An infant, however, being unable to contract for himself, it is the duty of the court, to guard his interests, and whether there be one or many lawyers engaged in .representing him, his estate should not be required to pay more for legal services, than the reasonable value of the services, reasonably necessary to protect his estate. Section 2030 Ky. Stats, empowers a guardian to prosecute and defend actions for his ward, and it was held, in Sears v. Collie, 148 Ky. 444; and in Wilhelm v. Hendrick, 167 Ky. 219, that the right and duty of a guardian to prosecute and defend actions for his ward, including the right to employ persons, learned in the law and authorized to practice the profession, to assist him in properly protecting the interests of the ward, and to bind the estate of the ward for the payment of a reasonable fee to the lawyer, for his services. For
(b) The entire estate of both the infants, was put in jeopardy by the suit. If their defense did not prevail, their entire estates, were lost, and the attorneys, would not receive anything for their services. The lands held by the infants and which were involved, in the litigation were from the sum of $21,000.00 to $25,000.00 in value; their personal estate, involved, exceeded $8,000,00. The action was pending about thirteen months. Several able and energetic attorneys, represented the plaintiff, in the action. For the purpose of taking proof, and cross-examining witnesses, and investigating the facts bearing
(c) Section 2031 Ky. Stats. authorizes a guardian to sell the personal estate of his ward, and the court might have properly ordered the guardian to sell the personal estate in her hands and pay the debts due the attorneys, instead of directing its commissioner to do so, but the result would have been the same and the same end would
The attorney has a lien only on property, which his client recovers, in the action. Lytle v. Bach, etc., 29 K. L. R. 424; Thompson v. Thompson, 23 K. L. R. 1535; Forrester v. Howard, 124 Ky. 215; Hatfield v. Richmond, 177 Ky. 383. The attorneys’ fees, however, in the instant case, were a liability for which the infant defendants ’ estates, were bound, and there was no other proper way for the attorneys to subject it to their demands, except by a suit in equity against the guardian and wards, wherein the court in the exercise of its authority, may subject it to the payment of the debts of the ward. Wilhelm v. Plendrick, 167 Ky. 219. This course, was the one, pursued.
The judgment, is therefore, affirmed.