181 Mo. App. 267 | Mo. Ct. App. | 1914
Lead Opinion
This is a suit by John L. Zeidler for commissions claimed by him as administrator of the estate of Theresia Lutz deceased. The probate court allowed him $6845.45. The estate appealed to the circuit court where the claim was disallowed. The administrator appealed.
On August 5, 1909, Theresia Lutz died leaving a will in which J. G.' Schneider was named as executor. Mrs. Lutz was a widow and left one child, a son, Henry Lutz. The will created a spendthrift trust in favor of this son and made Schneider, the executor, trustee thereof with many delicate and discretionary powers of large extent and wide range.
At the time of testatrix’ death Mr. Schneider was in Europe on a vacation. The executor named in the will being absent, Henry Lutz filed a renunciation of his'right to administer and the probate court on August 21, 1909, appointed the appellant, John L. Zeidler, temporary administrator to act in accordance with the statute until the return of the executor, Mr. Schneider. The latter returned about the middle of September, 1909, and, on the 17th of that month, filed his application in the probate court asking that the estate be turned over to him in accordance with the will which made him executor without bond.
Schneider was demanding that the estate be turned over to him as executor of the will. Mr. Pike, as attorney for Henry Lutz, suggested to Mr. Schneider that no one ought to exercise the delicate and large discretionary powers contained in the will especially when the beneficiary of the trust created therein was dissatisfied therewith; that it would be much safer for him, Schneider, and better for all parties, if Schneider would administer the estate and the trust contained in the will as a trustee, appointed by and under the guidance and direction of the circuit court as a court of equity. Henry Lutz, the beneficiary in the trust, and the other devisees under the will were willing that Schneider should act if under the control of a court of equity, and Schneider realized that he would be in a much safer situation,if he had the protection of such a court.
Thereupon it was proposed that if Schneider would not be made executor but would administer the estate through a court of equity, the appointment of Mr. Schneider as trustee would be recommended to the circuit court and the estate would be forthwith delivered to Schneider as such trustee and he would not lose any commissions on account of not acting as executor since they would be allowed to him by the circuit court the same as -they would be by the probate court if he were appointed executor. The understanding was that if this arrangement was made, the entire estate,
In addition to being a warm friend of Henry Lutz and apparently desirous of doing whatever would promote his welfare, Mr. Zeidler was in this position: He was ónly temporary administrator. If the arrangement proposed to be made was not entered into he would be immediately displaced by the executor named in the will, and he, Zeidler would, in any event, receive compensation only for his services as temporary administrator. He, therefore, assented to the arrangement after a full discussion and understanding of it. Mr. Schneider, however, would not proceed to carry out his part of the arrangement until a written agreement was entered into by Zeidler binding him to the arrangement. Zeidler signed the written agreement demanded of him and simultaneously therewith Schneider withdrew, or dropped, his demand to be made executor and was appointed trustee by the circuit court, all of these being simultaneous but different parts of one and the same agreement or understanding. The entire estate was thereupon turned over to Schneider, Trustee, except $3000'; and the probate court made an order confirming the appointment of Zeidler as permanent administrator. The estate was turned over to Schneider, Trustee, “upon the express condition that so much of the estate shall be refunded if required in the future to pay any indebtedness that may hereafter
The agreement signed-by Zeidler above referred to is as follows :
“In the Probate Court ,qf Buchanan County, Missouri.
“In the matter of the estate of Theresia Lutz.
“Mr. J. GL Schneider having declined to act as executor and trustee under the will of said Theresia Lutz and renounce the same, I have been appointed administrator of said estate, and propose to make an immediate distribution of the estate to a trustee to be appointed by the Buchanan Circuit Court; and the parties having agreed it is expected that said J. Gr. Schneider will be appointed trustee by said circuit court. Heretofore the undersigned had been acting as temporary administrator of the estate of said Theresia Lutz by appointment of the probate court of said county. As the estate has been only temporarily in my hands and will be turned over to the charge of said trustee, and will be burdened by the expense of administration through other proceedings, and as but little service and responsibility will remain with me except to formally close the administration, I agree to take as my full compensation as temporary and permanent administrator such reasonable allowance as may be made by the probate court for services in the capacity of
Jno. L. Zeid-i¿e.r.. ’ ’
In dne course of time the circuit court, in the matter of the trust estate, allowed Schneider the commissions he would have been entitled to had he administered the estate as executor in the probate court, the circuit court order reciting that, by reason of certain proceedings had in the circuit and probate courts, administration was had without the usual expense incident thereto and the said Schneider did not receive the fees he would have been entitled to if he had administered as executor and, ‘ ‘ it further appearing that at the time said Schneider declined to act as executor as aforesaid it was agreed between a number of the-interested parties that they would recommend and agree to an allowance by this court in his favor of the usual compensation allowed by law to administrators or executors without prejudice to compensation as-trustee under his appointment by this court. ’ ’
This suit is by Zeidler for commissions as permanent administrator on the entire personal estate of the deceased. The amount allowed by the probate court was five per cent of said personal estate. The appellant is not claiming in this action for services rendered as temporary administrator. He expressly disclaimed any such claim at the trial.
• Passing, and without deciding, the question whether there was an administration by Zeidler upon the-whole estate so as to entitle him to commissions on the full amount thereof had he not signed an agreement to. take only the compensation due him as temporary administrator, we proceed to take up the question of the-effect of such agreement. Before doing so, however, it may be well to say that, in our opinion, it is not material whether the case before us is of an equitable-nature or not. As originally commenced, it was cer
The agreement is not a bargain for an office, and is, therefore, not void as being contrary to public policy. There was no deal for an office about it. Schneider, under the law, was entitled to be executor and trustee. It was safer, and better for all concerned that he perform his duties under the direction of a court of equity, and he preferred to act in that way. Zeidler was already lawfully in the office of temporary administrator, and all that he did, with reference to the estate, was done as temporary administrator, since he turned the estate over as such. The retaining of $3000 and continuing as permanent administrator was a mere formal matter to close the estate at the end of the statutory period so as to give the estate the benefit of the bar as to debts thereafter. So that the agreement had nothing to do with securing an office or retaining one. It was merely an agreement of an administrator not to charge anything more than for the services he had already rendered. This does not render the agreement void. “A contract made by administrator subsequently to his appointment and having no connection therewith by which he agrees to divide his future compensation with another person is not illegal.” [Greer v. Nutt, 54 Mo. App. 4; May v. Moore, 99 Mo. App. 27.] But even if the continuing of Zeidler in office as permanent administrator was an administration upon said estate so as to entitle him to the full commissions thereon had he not signed the agreement, yet, as the object and purpose of the agreement was hot to secure or retain an office, but only to place the administration of the trust fund in the forum where all parties interested desired it to be, we cannot see how the agreement can be declared to be a trafficking in an office. At most, it constitutes a mere renunciation by Zeidler in favor of Schneider of such com
There is no merit in the contention that the agree-° ment was without consideration. There were three parties to the contract, Schneider, who was entitled to be executor and trustee, Zeidler who was temporary administrator, and the devisees under the will. Zeidler, in reality, gave up no fees to which he could enforce a demand. Schneider got none to which he would not have been entitled, and he and the heirs were interested in getting the estate into the sure and safe charge of a court of equity. Zeidler as a friend of Lutz was interested- in having this carried out, and acting upon this agreement the estate was transferred to the circuit court and Schneider there proceeded to disburse the legacies and to administer the estate and has been paid therefor. Zeidler was relieved from the burden and care of managing so great an estate, and the proper investment of the funds at long periods was secured and preserved better than if the estate had remained in process of administration.
Even if the agreement had been invalid as an enforeible contract, still the question would be, is plaintiff in a position to claim its invalidity since he was a party to it. Under it he turned over the estate to Schneider in the circuit court. He is now seeking to have that court pay back to him enough funds to pay his full commission notwithstanding his agreement not to charge them. In other words, he is seeking relief against a past transaction growing out of a contract which he says is illegal. “The-court has no more regard for the man seeking to recover what he has voluntarily laid out in furtherance -of an unlawful project than it has for one who seeks to enforce an unlawful contract.” [Ward v. Hadley, 178 Mo. l. c. 140.] This may be true whether this be a proceeding at law or in equity since the fund out of which plaintiff must o-b
But we do not think it was an illegal contract. Whether the payment of the legacies and other debts due by the estate by Schneider as trustee in the circuit court should have been done by an administrator or executor in the probate court is not material in this case. Plaintiff is not the one to complain of that, especially as his act made that procedure possible. Nor was the contract an illegal trafficking in an office. The judgment is affirmed.
Rehearing
ON MOTION FOR REHEARING.
It is suggested in a motion for rehearing that, if a rehearing is not granted, at least the opinion should be modified so as to remand the case to the circuit court with directions to ascertain and determine the amount due appellant as temporary administrator, instead of merely affirming the judgment of the circuit court which allowed the administrator nothing. The defense of respondent was that appellant was not entitled to any fees as permanent administrator because he had agreed to accept in lieu thereof only the amount due him as temporary administrator. This concedes that he is entitled to something, whatever that may be, as temporary administrator.
At first blush it would look as if appellant, having stated at the trial that he was not claiming for services rendered as temporary administrator, when respondent wanted to go into that matter, ought to be precluded from now asserting that he should be allowed a sum for such services. But the case came up from the probate court not upon a case precisely set out upon a petition filed by the administrator. It came up on the matter of the final settlement of the estate. The question before the probate court was what shall be allowed Mr. Zeidler, for his services. The probate court
Dissenting Opinion
DISSENTING OPINION ON MOTION FOR REHEARING.
On the trial in the circuit court plaintiff’s counsel was asked directly whether he made any claim as temporary administrator. He answered that he did not and insisted that if he was not entitled to recover the five per cent as permanent administrator he was not entitled to anything. On it being suggested that it might be proper to allow him (qucmtum meruit) as temporary administrator, he disclaimed any right to it and refused to allow the trial court to include that issue with the others. Defendant’s counsel then said to him: “Then it is not necessary to go into it at all,’’ and he answered “No sir; not at all.’’ With that understanding “both parties rested their case.” He should not be allowed to change position here. It is not necessary to say whether he would have a right to