100 Mo. App. 655 | Mo. Ct. App. | 1903
This is a proceeding by a bill in equity to require the defendants to interplead for a certain sum of money alleged to be due from plaintiff to one or the other of defendants. The court sustained the bill and ordered that plaintiff deposit the sum in court and that defendants interplead therefor, and tha.1; plaintiff have its costs and $100 attorney fee out of the fund. Defendants Broadwell and Stewart appeal.
It appears from plaintiff \s petition that plaintiff issued its beneficiary certificate to one Dr. "Wood, payable at his death to his wife, the defendant Ida Wood, for $2,000. That afterwards said Wood procured plaintiff to change such beneficiary, cancel said certificate and issue a new one, for the same sum, with his sisters Broadwell and Stewart, the other defendants, as beneficiaries. That Dr. Wood died and proofs of death were duly made by the latter defendants. That defendant Ida claims the fund, and threatens suit, on the ground that the other defendant by undue influence and persuasion prevailed upon Dr. Wood to make the change of beneficiary and that he was mentally incapacitated to transact business when he procured the change to be made.
6. The defendants Broadwell and Stewart have filed an elaborate brief endeavoring to show and demonstrate that they are entitled to the money due from the plaintiff society and that the claim of Ida B. Wood, widow aforesaid, is ill founded and without legal support. All that may be true, and yet not affect the question of plaintiff’s right to have the interpleas filed and the contest made in court at which time and place all that has been said here as to the merits of the respective claims will receive a hearing and due consideration.
7. The court allowed to the interpleader its costs including $100 as attorneys ’ fees, all to be paid out of the fund. We think the court acted within the rule in making such allowance. That rule is that when the plaintiff in the interplea has acted in good faith and has grounds upon which to base his call for the interposition of a court of equity requiring,the adverse claimants to interplead, he is entitled to his costs out of the fund in his hands or which he may pay into court. And these costs may include an attorney’s fee. Louisiana Lottery v. Clark, 16 Fed. 20. The reason of the rule in allowing an attorney’s fee in cases of like nature will be found discussed in Trustees v. Greenough, 105 U. S. 527.
8. Objection is made in this ease by defendants Broadwell and Stewart on the ground that their claim to the fund is the valid claim. That the claim of Ida Wood is wholly without merit and that they are entitled to the whole fund without depletion by costs which they had no part in making necessary. The reply to this is that where the plaintiff in the interplea is the disinterested holder of the fund, he is entitled to the pro<
Upon the whole record we entertain no doubt but that the judgment should be affirmed.