193 Ky. 297 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
In settlement of proceedings contesting the will of Mrs. Mary E. Stovall, in which her heirs were contestants and her husband, W. H. Stovall, was contestee, it was mutually agreed in writing by the parties that a judgment be entered setting aside the will and that the husband he paid, in lieu of all his interest in his wife’s estate, the sum of $1,725.00. Prior to that time a suit had been filed in the Monroe circuit court to settle the estate of Mrs. Stovall and to sell her land and divide the proceeds and
On April 8, 1919, the master commissioner paid to appellants, Oliver and Dixon, attorneys representing W. H. Stovall, the sum of $696.22, which she and they calculated was the balance of the amount due him, other claims having been paid to his creditors under orders of the court, and the record shows by the statements of the commissioner that the attorneys agreed at the time to refund any part of that check, if upon final settlement amistake was discovered. Two days after issuing the check the commissioner discovered that she had paid the attorneys $507.70 more than was due their client under the compromise agreement, other payments for his benefit having been made prior thereto under orders of the court, which reduced the balance due him to $188.52.
On April 11, 1919, three days after the check was given, the personal representative of the decedent, who was plaintiff in the suit to settle her estate, entered motion for a rule against the attorneys and their client, ~W. H. Stovall, to show cause why they should not return the overpayment into court to be distributed in that suit. The rule was issued returnable to, the next term of court, when the parties appeared and each of them filed a separate response, which the court adjudged insufficient and also, “that the respondents, T. B. Dixon, A. J. Oliver and W. H. Stovall, within sixty days pay into court the said sum of five hundred and seven and 70/100 ($507.70) dollars and the -cost of this proceeding as to them. ’ ’ That order was not complied with and at the December, 1919,, term of the court a special term was called- for January 12,1920, “for the-purpose of making such orders herein as may be necessary relative to having said Oliver, Dixon, and Stovall pay said funds into this court.” The record discloses that the special term was called in order -that
The only ground urged against the propriety of the judgment is that the court was without jurisdiction to proceed against appellants by rule or otherwise, because, as they contend, they were not parties to the litigation in which the rule issued, and that the overpayment by the master commissioner to them was not done by any order of court and was made before any judgment of distribution, and that it was therefore a mistake of the master commissioner against whom alone the court or any of the parties to the suit might proceed to collect the amount. In other words, it is contended that the master commissioner is primarily liable to the estate for the amount of the overpayment, and that if she was required to pay it only then could she proceed against appellants to recoup the amount from them if the facts authorized it.
We do not so understand the law. In the case of Burdine v. White’s Admrx., 173 Ky. 158, and on a second appeal of the same case, reported in 188 Ky. 10, we held that uncollected sale bonds taken by the master commissioner constituted a fund in the hands of the court which ordered the sale, and the property represented thereby was in custodia legis, and by analogy uncollected assets in the hands of the personal representative, after the filing of the settlement suit, clearly come within the some category. Attorneys are officers of the court and should not be allowed without direction of the court to collect or appropriate, through mistake or otherwise, any part of the funds in the custody of the court for distribution any more so than a litigant in the suit, or the commissioner of the court, and if they should do so without an -order of court directing it, we perceive no reason why they
It might be said in passing that respondents did not object to the rule, nor did they question the right of the court to issue it, by moving to quash or-otherwise; but whether such failure was a waiver of the question or not, we need not determine, since we are convinced that the power of the court to enforce its order for the restitution of the money and -to require respondents to return it, under the facts presented, clearly existed. The fact that the distributees might also proceed against the master commissioner and her sureties will not operate to defeat the remedy by rule against the attorneys to whom the money was wrongfully paid and who likewise wrongfully
Nothing herein said is intended to impugn or reflect upon the motives of appellants, since they appear to have acted in good faith, but for the reasons given we perceive no error in the judgment and it is affirmed.