Morrison v. Burnett , 56 Ill. App. 129 ( 1894 )

Hr. Presiding Justice Wald

delivered the opinion of the Court.

The specific ground of negligence relied on by the plaintiff was that the order of the County Court made upon the petition of the plaintiff and his brother Hoses and their sister Charity, was so drawn as to amount to an adjudication that by the distribution of the sum of $3,500 therein ordered among them, the petitioners were equalized with their four brothers in the distribution of the estate up to that time.

It was claimed that as a matter of fact that sum so distributed would not make them even with the other brothers and that the court did not so decide, but merely ordered that said sum, being all that was then available for distribution, should be divided between the petitioners so as to make them even with each other (they having theretofore received unequal amounts), and as far as it would go, even with the other brothers, who had received amounts equal with each other and larger than the amounts received by the petitioners, including the said sum of $3,500, and that the defendants in drawing up the order used such terms as to import—what was not intended by the court—that the heirs were all made even by the distribution of said sum, so that when the final distribution of the estate came to be made, all the seven heirs were permitted to share equally in what was then to be divided.

The order so drawn up by defendants was approved, and signed by the county judge, and was entered as the order of the court.

According to the theory of the plaintiff this order improperly permitted the other four brothers, who were still in excess of their shares, to take equal portions with him and the other petitioners in the sum left for final distribution, whereby each of the seven received $486.46.

The money thus received by the four amounted to $1,945.84, of which the proportionate share of the plaintiff could not possibly have been the sum of $1,578.85, for which he recovered judgment. It is argued, however, on his behalf, that by the will and by the distribution made by the testator after he executed the will, and for the purpose of effecting its provisions in advance, the four brothers had received each the sum of $9,829, and that the plaintiff and the other two were each entitled to receive enough to bring them up to that figure before the four brothers should receive any more.

Conceding this to be correct, it still appears that the sum actually received by the plaintiff lacked only a little over $1,100 of his share, one-seventh of the estate, and that by this judgment he will receive some $450 more than his share.

There was considerable complication growing out of advancements made to the different children by the father at various times which he intended to charge, and which were represented by notes in some instances, and by receipts in others. Some of these written evidences were lost, and when the testator made the subsequent ante-mortem division, he caused duplicates of those lost papers to be made out, which he held in lieu of the originals. After his death some of these original notes were found and were inventoried by the administrator, and thereupon each of the four brothers who had received the larger advancements, filed petitions in the County Court asking that the ante-mortem adjustment might be confirmed, and that they might receive the original notes, etc., so found.

The court granted the prayer of these petitions whereby the ante-mortem adjustment was confirmed. Later the plaintiff and his brother Hoses and sister Charity filed their petition heretofore referred to, in which they asked for similar relief, and upon this petition the order was made in preparing which the alleged negligence of the defendants occurred.

The case was still further complicated by a charge made first by the father and afterward repeated and continually urged by the four brothers, that the plaintiff had abstracted the will and other papers, together with $400 in money. This grave charge was denied by the plaintiff in his pleadings, but he refused to testify in regard to it, and in the end there was no evidence to sustain it. It seems pretty clear that the main effort of the plaintiff and of the defendants, acting as his attorneys, was in the first instance to clear him of this charge, and it may be that they as well as he had their attention somewhat diverted from the details of calculations in reference to the distribution of the estate.

The litigation was protracted and tedious. The report of the administrator asking for an order of final, distribution came before the County Court, and the four brothers insisted that by the order made on the petition of the plaintiff and the other two, there was an adjudication that all had been made even, which view was adopted by the court, and an order was entered for a pro rata distribution of what remained among the seven.

From this an appeal ivas prosecuted by the three to the Circuit Court of Morgan County, and the cause was by change of venue afterward transferred to the Circuit Court of Sangamon County, when the judgment of the county court was confirmed. A further appeal was taken to this court, where the judgment of the Circuit Court was affirmed. On that appeal the refusal of the Circuit Court to charge plaintiff with the $400 item was assigned as a cross-error, and the point was again pressed.

An attorney is required to use such skill and prudence as lawyers of ordinary ability and care would exercise, and for failing therein, he is liable to his client for any proximate loss thereby occasioned; but he- is not answerable for an error of judgment upon nice or difficult points, nor for every mistake which may occur in practice. In the present instance it is a question whether it can be shown by merely parol evidence that the order Avhich the county judge approved and signed was not the order he intended to make, and that it was through the negligence of the attorneys that it was so drawn. Waiving the discussion of this point, we are inclined to hold that in view of the entire case, of all that transpired in the protracted controversy, which has been briefly outlined, the evidence does not show such negligence as should make the attorneys liable for the loss. We will not refer in detail to the testimony which tends to show that the plaintiff had no clear idea of what he was really entitled to and that his action misled the defendants, and that he seemed to acquiesce in what was done and made no complaint until for the first time, at the end of the controversy, which extended through five years, he was required to pay for the services of defendants and for the money they had advanced for costs in his behalf.

The supposed slip in the order of court which, though drawn by defendants, was approved by the court and objected to by no one, is all that is relied upon to support the judgment. Regarding the whole case, it would seem to hold attorneys to an extraordinary degree of care and diligence to predicate liability upon such negligence, if negligence it be. Had their attention been specially called to the expression in question, it can not fairly be said they should have anticipated it would receive such a construction as to bar the petitioners from further special participation in the estate. The judgments of the County and Circuit Courts seemed to have been affirmed in view of all the orders made in the case, and while special mention is made of this, it is but a part of the whole record. When the entire transaction is regarded, taking all the circumstances into account, we are disposed to say that the defendants ought not to be held responsible for the result. The judgment will be reversed and the cause remanded.