Little v. Knox , 96 Ala. 179 ( 1892 )

THORINGTON, J.

The bill shows tbe appellee tobe an aged widow wbo, when but recently bereaved of ber husband, employed appellant as an attorney at law to take charge of her husband’s estate by representing her as administratrix, and also as sole distributee. She committed the entire management of the business to her attorney, acted implicitly on his advice, and being without experience in business matters, looked entirely to him for the protection of her interests and for the settlement of all the affairs of the estate. Facts are averred showing an abuse of her confidence by appellant, dealings by him with the assets belonging to the estate, or in which it was interested, to his own advantage and to the damage of the estate, and the retention by him of funds of the estate to an unreasonable amount under a claim of compensation for his services.' The bill seeks a discovery of assets alleged to have been collected by appellant, also to set aside a purchase made by bim of property belonging to appellee or in which she was interested, and for an account. Appellant demurred to the bill, the demurrer was overruled by the Chancery Court, and an appeal was taken by appellant to this court.

This cause is not before us on its merits but simply upon the averments of the bill which, on demurrer, we are bound to take as true. The case so made is one which, aside from all moral or ethical considerations, fixes upon appellant duties and obligations in the discharge of which the law requires the utmost good faith and to which it attaches the highest measure of responsibility. According to the decisions of this court, attorney and client sustain to each other the “severe relation of trustee and cestui que trust, and their dealings together are subject to the same intendments and imputations as those which obtain between other trustees and their beneficiaries.” — Yonge v. Hooper, 73 Ala. 119. The bill in this cause does not, in haec verba, charge appellant with fraud and imposition, but they arise by irresistible conclusion from the facts and circumstances which are set forth with much particularity, and what is necessarily im-pled in a statute, pleading, contract or other instrument of writing, is as much a part thereof as that which is expressed. 3 Otto, 619. Furthermore, property in which appellant’s cestui que trust was interested is averred to have been purchased by him from her while his fiduciary relation subsisted, and at a price 'far less than its alleged value, for which he gave his note without interest and without security, and which note remains unpaid. In the absence of explanation, the intendent of law is that a conveyance or transfer of property made by tbe beneficiary to tbe trustee was obtained by undue influence, and tbe burthen rests on tbe trustee to repel sucb imputation. — Yonge v. Hooper, supra; Ware v. Russell, 70 Ala. 174; Calloway v. Gilmer, 36 Ala. 354.

It would not be very clear tbat tbe transaction in regard to tbe McPherson stock of goods properly bad a place in tbe bill but for tbe fact tbat appellant treated tbe stock of goods as being tbe property of appellee, or as property in which she was interested, by making bis note for tbe purchase-money payable to ber and delivering tbe same to ber. Furthermore, looking to tbe averments of tbe bill alone this, and all tbe other transactions complained of are so related and interwoven tbat it is not practicable, on demurrer, to draw tbe line of demarcation between them or to say tbat appellee has no interest in any one of them.

Her rights as distributee of ber husband’s estate, as surety for tbe guardian of tbe minor, and as creditor of tbe minor have by tbe advice and acts of appellant himself become so intermingled and sustain sucb a relation to tbe property mentioned in tbe bill and to appellant’s liability tbat a full and complete account can only be bad in one suit in equity.

"We find no error in the decree of tbe Chancery Court overruling tbe demurrer, and it is accordingly affirmed.

Affirmed.