Elam v. Bond , 169 Mo. App. 584 ( 1913 )

OPINION.

FARRINGTON, J.

The plaintiff in this case alleged and proved that he received nothing for his services in the litigation referred to. He brought this action alleging that by Sarah Elizabeth Shockley’s assignment of her intérest in the estate to the defendant, he, the plaintiff, was deforced of his lien as an attorney, and that by reason thereof he was damaged in the sum of one thousand dollars for which he prayed judgment.

Benjamin JV. Bond made his will on December 20, 3.890, and died in December, 1909. By his will he specifically devised and bequeathed all his property, but omitted to insert a residuary clause. He bequeathed to Sarah Elizabeth Shockley, his daughter, five dollars. At his death, the estate included, among other things, in personalty that was not disposed of by the will, about twenty-two hundred dollars. The notice of letters of administration were published by the defendant herein — who was appointed administrator with the will annexed — on December 24, 1909. The first annual settlement showed the balance in the hands of the administrator on February 15, 1911, after deducting the widow’s share, etc., to be $1520.77. The record does not show when the suit now under consideration was filed but does show that an amended petition was filed on January 2é, 1912, and the judgment was rendered on January 26, 1912. Hence the suit was filed before any final settlement was made by the defendant as administrator; besides, the record fails to disclose any final settlement or any order of distribution of the estate of Benjamin W. Bond.

It is conceded that Sarah Elizabeth Shockley’s interest in the property undisposed of would be one-sixth of any sum remaining in the hands of the administrator after satisfying all devises and bequests and costs and expenses.

There is no charge in the petition nor any intimation in the evidence that there was any fraud or collusion between Sarah Elizabeth Shockley and the defendant to defeat this plaintiff in any rights that he might have, or that she received anything in consideration of failing to appeal her suit against defendant and other heirs of her father’s estate.

It is contended by counsel that the storm-center of this case is whether the contract of employment is one that falls within the section of the statute referred to or is a straight assignment of an undivided one-half interest in and to Sarah Elizabeth Shockley’s share in the estate in course of administration. As we view the case, it makes no difference whether it is a contract protected by the statute, or an assignment, for the reason that the amount sought to be recovered in this case is in no wise affected or included in the. litigation instituted by plaintiff for Sarah Elizabeth Shockley. It is a sum which the law fixes as her distributive share of the estate and is not acquired by her as the result — either in a suit or by compromise — ■ of the case brought by the plhintiff herein for her against the other heirs. For that reason we do not believe the plaintiff has any standing in court in this case.

To begin with, he has sued the defendant as an individual and as administrator, and without deciding whether there could be such a joinder in a suit for damages, there is nothing whatever in the record that could hold the administrator in this action on any theory, there being no final settlement or order of distribution shown, so that as to him in his representative capacity the suit is premature. As to him in his individual capacity, he is sued for damages for obtaining something which plaintiff claims he (plaintiff) was entitled to, but the evidence does not support this theory for the reason that the defendant as an individual had not received Sarah Elizabeth Shockley’s interest in the estate because there was no orT der of distribution or any payment to him as an individual of her interest. On the other hand, if he attempts to enforce his contract, whether an assignment or not, under the attorneys’ lien statute, then he would be entitled to sue the defendant for one-half of the sum paid for Sarah Elizabeth Shockley’s interest, provided he had given the notice required by said act — -which was not done. He seems to have taken the latter course, but nowhere in the record do we find the question asked or the answer given as to the amount the defendant paid to Sarah Elizabeth Shockley for her interest in the estate. Plaintiff did attempt to show what her interest in the property would be, presumably on the theory that that would fix his measure of damages, but that showing is based on the first annual settlement, which of course furnished no evidence as to what her interest would amount to after final settlement and an order of distribution.

We are of the opinion that the trial court committed no error, and the judgment is accordingly affirmed. *

All concur.