| Ark. | Apr 8, 1918
(after stating the facts).
Appellees contend that the probate court had no authority to appoint a guardian under section 3824 of Kirby’s Digest which provides “that every guardian or curator .shall continue in office, unless discharged according to law, until the ward shall arrive at full age or if ia female until her marriage, if that event shall first happen; and when .any guardian or 'curator shall be entitled to his discharge according to law, he shall make a just and true exhibit of the account between himself and ward for the purpose of a final settlement of his guardianship accounts, et cetera.” This act was .approved April 22, 1873. This particular section of the .statute relates, to the final settlement of guardians ¡and curators who are discharged by the marriage of their infant female wards and does not expressly prohibit the appointment of guardians and curators for married infants. But if the existing guardianship or curatorship of such infants terminates ipso facto with their marriage it would .seem 'by necessary implication at least that no guardian or curator could be appointed under the statute for a married infant female.
The above statute is merely declaratory of the common law. At common law the guardianship of a female minor ceased at her marriage for the reason that a continuation of guardianship would be incompatible with the marital rights of the husband.
The rule that the marriage of the female ward terminates the guardianship “evidently arose,” ©ays Ruling Case Law, “from the fact that the marital obligations of either a husband or wife ¡are inconsistent with, and in their nature superior to, the guardian’s right to control of the person; and that at the ■common law the wife 'by marriage conferred on the husband the entire control, and nearly the entire beneficial interest, in her property.” 12 R. C. L. p. 1117, sec. 19. See also Mendes v. Mendes, 1st Ves. Sr. pp. 89-91; Porch v. Fries, 3rd C. E. Greene, N. J. Eq. pp. 204-207.
As the husband at the common law took the control over the person and the property of his wife the necessity for the continuation of the guardianship after marriage of the female minor ceased. Hence the rule.
But the Act of April 28, 1873, sec. 5207, Kirby’s Digest, ,and article 9, sec. 7, of the Constitution of 1874, give to a married woman the entire management and control over her real and personal property and the right to dispose of, and to own 'and enjoy the income from such property the same as if she were a feme sole. To effectuate the purpose of these provisions for the protection of the rights of married women in their separate property it becomes necessary in the case of ,a married female minor that a curator of her estate be 'appointed. Our married woman’s act of 1873 is modeled after a statute passed in 1848 in New York which provides “that the real and personal property of any female who may hereafter marry, and which she 'shall own at the time of her marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, ■and ¡shall continue her sole and separate property, as if she were a single female.”
In the Matter of Herbeck, 16 App. Pr. Rep. (N. S.) pp. 214-217, the Surrogate, construing this statute, said: “If the common law on this ¡subject still prevails, not-with standing the act of 1848, then does it not follow as a necessary corollary, that the husband may recover and take to his own use her legacy or distributive share, and other choses in action, arid thus defeat the very design of that act ? Thus all the safeguards the law and the courts have erected so carefully to protect the estate of infants, would be at once beaten down. ’ ’
To sustain these -allegations appellees rely entirely upon the testimony' of Y. Gr. Richardson who assumed to act as the representative and spokesman of his wife. He testified, “my wife employed the additional -attorneys other than Mr. Seawel because I realized that Mr. Pace was incompetent, or at least I couldn’t get him to give the time necessary for a case the magnitude this one was. He didn’t give it the attention, for when I would -call him up or write him he would state he would not be up here at a certain time. I put constant pressure upon him from the time the case started until it was over to act -and act quickly when the occasion presented itself. It develops in Ms 'deposition that he thought we did not have a strong oase, and I think there could not have been a better case in the country of undue influence and incapacity. I paid the other attorneys the following amounts: Sam Casey $5,000; Dene Coleman $1,000; Sam Moore $1,000; Earl Casey $500; Henry Bickers $500 and W. K. Ruddell $350. These (attorneys were employed because Mr. Pace was not giving the case the attention he should. I do not think that Mr. Pace was in Batesville more than ten days during the entire time he represented my wife. I do not think Mr. Seawel was. here over (six days or seven days in all. * * * All the attorneys as to the method of procedure acted on my suggestion. As to preparing the law of the case ¡and taking care of the law in it, Mr. Seawel and Mr. Sam Casey took care of that. I want to add to that statement that Mr. Pace didn’t proceed'in the probate court as I wished him to. Mr. Seawel appeared in the U. S. Court and prepared the (answer in the U. S. Court and looked after the law end of the case, together with Mr. Casey. All the papers that were filed in the case I f.bjuk were prepared in skeleton form in Little Rock and ■sent to Mr. Casey here who perfected and filed them here. I know it was generally understood that Mr. Seawel and Mr. Casey were looking after the law end of the case. ’ ’
In regard to the compromise Richardson testified in substance that Pace sent for him to come to Little Rock to talk compromise. He didn’t want to (compromise; had not instructed Pace to work up the compromise, and he did it of his own accord. He thought that if the suit had gone ahead that his wife would have gotten iall the property, as Mrs. Erwin was a cousin of Major Erwin and their marriage was therefore illegal. Further as to the compromise he stated that Páce after seeing Moore, Smith & Moore, attorneys for Mrs. Erwin, reported that they offered to give one-half of the ©state provided that witness’ wife would pay one-half of the fees of Mrs. Erwin’s attorneys. After some discussion witness said he thought his wife would be willing to compromise if she could get half of the estate and Mrs. Erwin, pay her ovni attorney’© fees. Pace went to ©ee Moore, Smith & Moore and upon returning stated that Mrs. Erwin offered to give witness’ wife half of the estate and each one pay her own attorney’© fee©. Witness told Pace “in view of ¡all the facts in the case and feeling that he wasn’t capable of handling the case, 'and feeling that I couldn’t afford to discharge him at that time, my wife submitted, or I for her, and she was to get half of the estate and pay her own ¡attorney’© fees and Mrs. Erwin pay her,own attorney's fees.”
Witness goes into detail showing the reason why, in witness’ opinion, Pace after his employment had not taken the steps which witness thought he should have taken and were necessary to be taken in order to properly protect Mrs. Richardson’© estate ¡and to recover for her that to which in witness’ opinion ishe was entitled. In the Course of his testimony as showing the opinion of the witness as to the services rendered by Pace witness ©ays: “His (Pace’s) whole attitude from the start was to grab what he could ¡and get out with the least trouble.”
The testimony is too long to quote further, but the above presents its salient features.
Pace testified that after he was employed he had frequent conferences with Richardson who acted as the agent of his wife and who “was very active in the prosecution of the matter from the beginning to the end and was very efficient.” In this connection Pace likewise generously conceded that the attorneys who had been employed by Richardson rendered him valuable assistance. He says, “I want to add further that out of my fee I employed Mr. Seawel, and that not only was I present but he was presrent ¡at every material step in the trial, and that .after he was employed nothing was done without full consultation between himself and myself in connection with it, and that while we had valuable assistance from the attorneys who represented Mr. Richardson in Ralesvilie, their work was only cumulative of what we did. I want to ©ay that I appreciated the value of their support and their assistance iand that Mr. Richardson was a very active and satisfactory client during the litigation. ’ ’
Pace further testified denying that there was any reason for the employment of other counsel on account of any neglect on his part to perform his contract. He denied that he had been reproached by Mr. Richardson for any neglect of duty. On the contrary he says, ‘ ‘ that Richardson never during the entire litigation or at any time afterwards until he filed his answer made any complaint to me that I had neglected his business in any way or had neglected to. do my whole duty in connection with this case.”
Pace’s testimony shows that soon after he was employed, Richardson who was then living in Little Rock, expressed a desire to move back to Batesville. Pace encouraged the idea in order that Richardson might be on the ground to discover what testimony he might be able to find that would tend to show that Erwin did not have mental capacity to make the will or that undue influence was exercised over him by Mrs. Erwin and others in procuring the will in her favor to be executed. Richardson desired certain steps to be taken, such as appointing a guardian for Major Erwin 'and other steps looking to the conservation of the estate which witness did not deem advisable unless absolutely essential to avoid losing a substantial part of the estate. But there was no intimation by Richardson that he was dissatisfied with Pace’s conduct in this particular. Pace detailed the steps that were taken by him and Seawel after the death of Major Erwin in the performance of his contract.
He had the will under which Mrs. Erwin claimed produced in the probate court. He filed exceptions to the probate of the will. While these issues as to the probate of the will were pending Mrs. Erwin filed the deeds and instrument conveying to her virtually all Major Erwin’s property. Mrs. Erwin was then living in Tennessee. Pace 'and Seawel filed a bill in the chancery court to set aside these instruments. That case was transferred to the Federal court. The defendant in the Federal court filed :an answer and counter-claim, asking that her title to the property be quieted and that she be allowed to retain possession of same until the end of the litigation. Before the case was transferred to the Federal -court, however, Pace and Seawel had procured the ¡appointment of an administrator of the estate of Major Erwin. They had also made application to the chancery court and had procured an order appointing the administrator .receiver of the estate. After the case was pending in the Federal ■court they made application before that court for the administrator to be appointed receiver by that court to take charge of the property. They had a citation issued from the probate court directed -against -certain parties to discover whether there were other assets- -of the estate that had not been delivered up by Mrs-. Erwin to the administrator. The contest over the probate of the will was heard and the probate court refused to probate the will and Mrs. Erwin appealed.
While these proceedings were pending in the several courts Pace approached Mr. Smith of the firm of Moore, Smith & Mo-ore, attorneys for Mrs. Erwin, in order to effect a compromise. He states the matter was choroughly discussed with Richardson and the reasonableness of the contention of the parties on the other side was dwelt upon. They had discovered in their investigation that under the terms of the will made in 1907 Mrs. Richardson, the beneficiary of that will, would not get possession of the property directly. It was bequeathed to a trustee to hold in trust and out of the rents and profits the beneficiary was to be educated and at the age of twenty-five years he was to turn over to her one-fourth of the personal property and each year thereafter one-fourth until she had received all the property of the estate.
The terms of this will were unsatisfactory to Richardson and his wife and there was also some evidence to •show that even at that time Major Erwin had no mental capacity to make a will. So that, even if they had succeeded in setting aside the will under which Mrs. Erwin claimed, it was not certain that the will of 1907 would not have also gone down. Furthermore they had learned that prior to the will of 1907 Major Erwin had made another will in which his grand-daughter,.while still an infant and living with her mother in Memphis, was practically disinherited. They had found no evidence to show that Major Erwin at the time he made this the first will (in 1902) disinheriting his grand-daughter was of unsound mind. They had discovered that there were witnesses, present at the time the will in favor of Mrs. Erwin was made, who would have testified that Major Erwin was of ¡sound mind and fully understood what he was doing, realizing that he was giving all the property to his wife and disinheriting his gnand-daughter. Other witnesses, who were not present at the time the will was made but who were intimately associated with him, would have 'stated that while he was we'ak in body there was never ¡a time when he did not have ¡sufficient mind to know what he was doing ánd to know the relationship and the deserts of those whose names were mentioned in the will.
Pace concludes his testimony concerning the reasons inducing him to propose, ¡and to agree upon, the compromise, ¡as follows: “After reviewing all of the testimony that would bear upon the mental condition of Major Erwin at the time he made the last will we were not ¡satisfied that we had such .a case, even though it might be submitted to ia jury, that we could win it there or that it would be affirmed in the Supreme Court on appeal. In addition to this fact there was the further fact that the validity of the will was pending in the State court, and the question ■as to the validity of the deed, and the instrument conveying the personal property, made some four or five months after the time that the will was made, was pending in the Federal court, and to recover anything for our client it was necessary for us to set aside the deed and the conveyance of the personal property in the Federal court.
“Taking the whole situation into consideration, we felt, after consulting with Mr. Richardson and Mr. Yin-son, the guardian, the other parties interested, that it was well to compromise the case. ’ ’
His testimony shows that after the .agreement to compromise was reached, one of the ¡steps taken in order to effectuate it was a suit instituted in the chancery court by Mrs. Richardson against Yinson, her guardian, in which all the facts in connection with the case were set up in the complaint, and the chancery court was called upon to determine whether or not such settlement was for the best interests of the minor, ¡and, if ¡so, to instruct the guardian to m!ake settlement. There was also a petition filed in the probate court by the guardian setting forth all the facts in connection with the matter and ¡asking of the probate' court authority to- make the settlement.
It was determined by both chancery and probate courts that the settlement was for the best interest of the minor. The final consummation of the ¡settlement was had through the Federal court and a final division of the property was obtained ¡about the first of June, 1915. The division as finally effected by agreement was ¡amicable.
Pace and other witnesses testified to facts tending to prove that the value of the real and personal estate received by Mrs. Richardson in the division was worth at least $135,000.
Yinison, the guardian, testified: “Taking into consideration all the facts in the case, I thought the compromise was for the b.est interests of the minor.” He also testified that Richardson never at any time had complained that Pace had neglected the litigation' in ¡any w!ay.
The testimony of T. M. Seawel corroborates, in all material particulars the testimony of Pace. His testimony shows that every legal proceeding was instituted which he and Pace considered necessary for the protection of the interest of Mrs. Richardson and that they spent :a great deal of their time in connection with the litigation and did not neglect the same at any time. He says also that Richardson did not criticise Pace as to the manner of conducting the litigation and that he never heard him complain of any neglect until this suit and his answer were filed. In regard to the compromise he states, “it was my view that the will of 1902 was valid .and would govern the disposition of his property at his death in the event the wills of 1907 and 1913 and the deeds executed about that time were set aside. The will of 1902 disinherited Mrs. Richardson as I understood it.” After reviewing the difficulties that confronted them in the litigation and the obstacles that they would have had to overcome if they succeeded at all he states: “I will state now that I lam firmly of the opinion that the settlement that was brought about in that case was by far the best settlement that I ever participated in in any case, and, as stated, it was much better than I believed could be had in the case.”
We conclude, therefore, that the iappellees have wholly failed to sustain the allegations of their answer, “that Pace had breached his contract by neglect and refusing to look after and care for the interests of Willie A. Richardson in the estate of her grandfather. ’ ’
The testimony of Richardson to this effect is clearly against the preponderance of the evidence. While he w!as greatly interested in the litigation we lare not disposed to attribute his testimony to any selfish purposes of his own or to any desire on his part to do injustice to the one who had rendered him and his wife such valuable services. His own testimony shows that he was >a. young iand inexperienced attorney and without the knowledge necesisiary to enable him to testify concerning the extent and value of the services that were rendered his wife. For he,says, “I had not been practicing law but a short time, and I did not know the legal phases of the case.” His testimony should be viewed in the light of this statement.
The testimony clearly shows thlat the proceeding instituted on behalf of Mrs. Richardson to recover an interest .in her grandfather’s estate had brought her into deep ■and dangerous waters of litigation. To make for her any landing, much less the highly propitious one she attained, the faithful services of an experienced, able and skillful pilot were indispensable. These she had, according to the proof, and for these she must pay according to the contract.
The decree ¡dismissing the complaint of ¡appellant for $686.55 without prejudice was correct and is affirmed. This claim was for money borrowed by Richardson from PaJce and did not come within the contract sued upon and was not germane to the issues raised and the relief prayed for. Pace has no lien for this.
The decree dismissing the complaint of the ¡appellant ■as to the amount sued for on the contract is reversed and the cause will be remanded with directions to enter a decree in the sum of $12,500 with 6 per cent, interest from the date of ¡settlement between Mrs. Richardson and Mrs. Erwin (June 12,1915), and declaring the same ¡a lien upon the property received by Mrs. Richardson as the result of the compromise of the litigation instituted by the appellant in her behalf, and for other proceedings according to law and not inconsistent with this opinion.