Opinion
No. 27829.
May 16, 1950. Rehearing Denied July 18, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, ROBERT J. KIRKWOOD, J.
John T. Sluggett, St. Louis, pro se.
M. P. Phillips, St. Louis, for guardian ad litem pro se.
By this proceeding petitioner, John T. Sluggett, an attorney, seeks compensation for professional services alleged to have been rendered by him to Mary Murphy, n. c. m., at the request of James J. Connell, curator of the estate of Mary Murphy. The prayer of the petition was for the sum of $1,075.
The petition which was filed in the Probate Court includes a claim on account of services rendered by petitioner in the defense of two lawsuits instituted by St. Vincent's Sanitarium against Mary Murphy, n. c. m., James J. Connell, curator of the estate of Mary Murphy, and Ella Readey McGinn, guardian of the person, and for services rendered by petitioner in representing the estate of Mary Murphy in other matters during the course of the administration of the estate.
The Probate Court denied the relief prayed and dismissed the petition. Petitioner then appealed to the Circuit Court, where the cause was tried to the court and resulted in a finding and judgment for petitioner in the amount of $50 and costs. Petitioner's claim for services in defending the two suits filed by St. Vincent's Sanitarium against the estate of Mary Murphy was denied. From this judgment, petitioner has appealed.
On this appeal, appellant urges that the court erred in refusing to allow petitioner a reasonable attorney's fee for his services in connection with the defense of the two lawsuits above mentioned.
It appears from the evidence that Mary Murphy was adjudged a person of unsound mind by the Probate Court of the City of St. Louis on June 7, 1944. On that date, Ella Readey McGinn was appointed guardian of the person of Mary Murphy, and James J. Connell was appointed curator of the estate of said Mary Murphy. At the time of Connell's appointment as curator the value of the assets in the estate was between twenty-two and twenty-five thousand dollars. Miss Murphy, at the time of the trial below, was close to ninety years of age.
Shortly after Mary Murphy was declared insane it became necessary that she be confined and, on July 22, 1944, Connell, with Mrs. McGinn's approval, took Miss Murphy to St. Vincent's Sanitarium. Connell testified that before taking Miss Murphy to the sanitarium there was an arrangement with the latter that Miss Murphy would be taken care of at a charge of $125 per month, but when he arrived at the sanitarium with Miss Murphy they presented to him a contract to sign which called for a payment of over $200 per month. Connell further testified that he refused to sign this contract because it provided that he would be responsible for Miss Murphy's funeral in the event of her death and because it called for this payment of over $200 per month. Connell stated that he told a nun at the sanitarium that if she would keep Miss Murphy until he made other arrangements he would pay them $6.00 per day for Miss Murphy's care.
Thereafter, Connell went to the Manchester Nursing Home and made arrangements with that institution for Miss Murphy's care and secured a letter from Mrs. McGinn which authorized St. Vincent's Sanitarium to release Miss Murphy to the Manchester Nursing Home. This authorization was never exhibited to the St. Vincent's Sanitarium and was revoked by Mrs. McGinn three days after it was given by her. St. Vincent's Sanitarium then notified Connell that the sanitarium would not release Miss Murphy to the Manchester Nursing Home. Connell then called upon Mrs. McGinn who told him that a Miss Reese from the Probate Court told her that she had the "whole say" as to where Miss Murphy should be kept and the amount of money that should be spent for her care and maintenance. Connell stated he replied: "Well * * * if you have that authority, Mrs. McGinn, you go ahead, but * * * I won't spend so much for the kind of service she is getting out there." No further attempt was ever made by Connell to remove Miss Murphy from the sanitarium.
The sanitarium sent statements to Connell from time to time for the services rendered, which statements he ignored, and, on November 13, 1944, he wrote to the sanitarium as follows: "I have your letter enclosing bill for sanitarium made out to me as curator for Miss Murphy, which has the approval of Mrs. McGinn and Judge Arnold. I have been advised that I have no authority to pay this bill even though it has been approved by the judge and guardian of the person. I am therefore returning the bill to you."
On January 27, 1945, the Probate Court entered the following order in the estate of Mary Murphy, n. c. m. "Ella Readey McGinn, guardian of the person of Mary Murphy, a person of unsound mind, and James J. Connell, curator of the estate of said ward, appear in person, and there is tendered to the court the bill rendered by St. Vincent's Sanitarium for board, nursing care and incidentals furnished said ward, up to and including December 31, 1944, in the total amount of ten hundred and sixty-three dollars and thirty-five cents. And after considering the same, the court orders said curator to pay said amount of ten hundred sixty-three dollars and thirty-five cents to said St. Vincent's institution for the support and safe keeping of said ward."
Connell refused to comply with the above order. When asked why he refused to comply with the order, Connell replied:
"A. Because I figured the court had — should authorize me to pay a certain sum per month, and that they had no right to authorize — really I wanted to find out if the court had authority to authorize me to pay for past services. The question was whether St. Vincent's had a right to have her there. If they didn't have the right —
"The Court: Why were you objecting to St. Vincent's bills? A. On account of the amount of more money, on account of the charges."
Thereafter, St. Vincent's Sanitarium filed a suit against Connell for board, room, and nursing care at the rate of $6.00 per day, and for medical and other services furnished Miss Murphy from July 22, 1944, to February 28, 1946, in the sum of $3,787.28. An agreed statement of fact was entered into between the parties to that suit in which it was agreed: "That the reasonable value of the services rendered by the plaintiff to Mary Murphy since July 22, 1944, up to and including February 28, 1946, is the sum of three thousand seven hundred and eighty-seven dollars and twenty-eight cents."
In explanation of his client in contesting the claim and at the same time agreeing that the amount charged was reasonable, petitioner said: "* * * it was not a question of the reasonableness of the fee — of the charge that they made for the services that were rendered her, but the question was here whether or not the services that were being furnished to her were over and beyond her station in life and beyond what she could reasonably afford to pay * * *. She was being provided with things out there that in Mr. Connell's opinion were not necessaries, they were over and above necessaries, and he could provide the necessaries for her for a hundred and twenty-five per month, the amount which they originally agreed to charge her."
The above suit was against James J. Connell as curator of the estate of Mary Murphy. Mary Murphy was not made a party defendant. The action was dismissed without prejudice by the plaintiff therein when the court indicated that it should be dismissed on the ground that defendant Connell was not a proper party. In the case at bar petitioner does not seek to recover compensation for the services rendered in that case. According to the testimony of petitioner, he has been paid for those services.
Thereafter, St. Vincent's Sanitarium filed two lawsuits against Mary Murphy, James J. Connell, her curator, and Ella Readey McGinn, her guardian, to recover compensation for board, room, and hospital services furnished Mary Murphy. The first case filed was numbered 3946-D, and it covered services rendered from July 22, 1944, to September 30, 1946, for which the sum of $5,211.84 was asked. The second suit was numbered 10833-D, and covered the period commencing October 1, 1946, to June 30, 1947, and prayed recovery in the sum of $1,820.56. Petitioner's services in connection with these two suits form the basis of his claim here.
Petitioner herein was employed by Connell to represent him in the defense of these suits. Petitioner also filed answers in these suits on behalf of Mary Murphy and Mrs. McGinn. Cause No. 3946-D was tried and resulted in a verdict in favor of St. Vincent's Sanitarium and against defendant Mary Murphy in the sum of $5,000, and in favor of defendants James J. Connell, curator, and Ella Readey McGinn, guardian, and a judgment was entered that "plaintiff have and recover of the defendant, Mary Murphy, a person of unsound mind, the sum of five thousand and no/100 ($5,000.00) Dollars, now in the hands of James J. Connell, curator of the estate of Mary Murphy, together with the costs of this proceedings."
By this judgment it was ordered that the other defendants "go hence without day as to said cause of action." Connell then filed a petition in the Probate Court for an order authorizing him to prosecute an appeal from this judgment and to employ counsel in connection therewith. This petition was granted; whereupon Connell authorized Mr. Sluggett to prosecute the appeal. The appeal was perfected to this court by defendant Mary Murphy, by and through James J. Connell, her curator. The cause was tried in this court and resulted in an affirmance of the judgment. St. Vincent's Sanitarium v. Murphy et al., Mo.App., 209 S.W.2d 560. On said appeal various assignments of error were made by appellant, but the main point relied upon was that the services rendered were not "necessaries," in view of the fact that curator Connell was at all times ready, able and willing to provide such services for the ward, but was prevented from doing so by reason of the plaintiff's wrongful refusal to permit the curator to maintain her at the Manchester Nursing Home. There was no complaint that the charges made by St. Vincent's Sanitarium for the services rendered were not reasonable. Petitioner, when asked if there was any complaint of excessiveness of the recovery in that case, replied: "We weren't defending on that ground." We held against the contention of appellant, and said: "The curator of an insane person's estate is not entitled to the custody of the person where a guardian of the person is duly appointed by the probate court. It is the duty of the guardian of the person to take charge of the ward and to arrange for a suitable home, food, clothing, and other necessaries, the reasonable value of which is a proper charge against the ward's estate in the hands of the curator. This right and duty inhered in Mrs. McGinn on her appointment as guardian of the person. The curator has charge of the care and management of the ward's estate, subject to the superintending control of the court. Duncan et al. v. Crook, 49 Mo. 116. It is the duty of the curator to collect the assets of the estate, make proper investment thereof, and otherwise manage the estate. It is also his duty to pay out of the funds of the estate the reasonable value of the necessaries furnished his ward, and, of course, to resist any charge that is unreasonable. The reasonable charge to be allowed against the estate is, under all the circumstances, a question to be finally determined by the probate court." St. Vincent's Sanitarium v. Murphy et al., Mo.App., 209 S.W.2d 560, loc. cit. 565.
After the trial in the Circuit Court, and while the appeal was pending in this court, Mr. Sluggett presented to the Probate Court an application for an allowance of attorney's fees rendered to the estate of Mary Murphy, including his services in defense of cause No. 3946-D. The court allowed Mr. Sluggett's claim for certain services but denied his application for an attorney's fee for services in cause No. 3946-D, "on the ground that pending final determination of litigation referred to therein, the services for which said fees are claimed cannot be adjudicated beneficial or detrimental to ward's estate. Leave granted to refile application after such final determination."
Suit No. 10833-D was filed by St. Vincent's Sanitarium on July 3, 1947, and sought recovery for board, room, and other services from October 1, 1946, to June 30, 1947, in the amount of $1,820.56. Thereafter, on application of Connell, the Probate Court made an order authorizing said Connell to employ counsel to defend Mary Murphy in said suit. Pursuant to said order, Connell employed Mr. Sluggett. The latter prepared and filed pleadings in the case and later, after our decision, filed a stipulation for dismissal, and secured an order of dismissal.
At the time the appeal in the case at bar was taken by petitioner from the judgment of the Probate Court, that court entered an order appointing Maurice P. Phillips "guardian ad litem of Mary Murphy, to defend her estate in the matter of said appeal, which appointment of guardian ad litem is made on the ground that James J. Connell, curator of the estate of Mary Murphy, has a personal interest adverse to the ward's estate." The defense interposed at the trial below was that the action of the curator Connell in opposing the claim of St. Vincent's Sanitarium was not warranted in law, and for that reason the services of petitioner in connection therewith were not beneficial to the estate.
It appears from the record that this cause originated in the Probate Court upon the filing of a petition by appellant, and that, by said petition, appellant seeks to recover compensation on a disputed claim for services which were rendered by him to the estate of Mary Murphy after the appointment of her guardian. Under these facts, the Probate Court acquired no jurisdiction of the cause, and the Circuit Court acquired no jurisdiction on appeal. City of St. Louis v. Hollrah, 175 Mo. 79, 74 S.W. 996; Evans v. York, Mo.App., 195 S.W.2d 902.
In Evans v. York, supra, this court said:
"It is true that the probate court has no jurisdiction to determine disputed claims against an insane person accruing after the appointment of a guardian. The statutory provision for the probate court's allowance of demands against the estate of a person adjudged to be insane and under guardianship is confined to demands against such person accruing before the granting of letters of guardianship (Sec. 471, R.S. Mo. 1939, Mo.R.S.A. § 471); and a disputed claim accruing after guardianship must be heard and determined in a court of competent jurisdiction, and a copy of the judgment be then exhibited to the probate court for payment out of the insane person's estate. (citing cases)
"In this case, as already pointed out, the demand embraced professional services rendered by Miss Evans from April 1, 1944, to October 1, 1944, or for a period extending more than three months beyond the date of the appointment of the guardian, as well as items of expenses allegedly incurred in Valentin's behalf, some of which appeared on the face of the demand as having been incurred during the period of the guardianship. Under the statute which restricts the jurisdiction of the probate court to demands accruing before the granting of letters of guardianship, it is clear that in this proceeding originating in the probate court, the court would have had no authority to allow any part of the disputed claim which accrued after the appointment of the guardian. Nor was the situation altered when the case reached the circuit court, since the circuit court, on appeal from the probate court, exercises a derivative jurisdiction over the subject matter of the proceeding no greater and no less than that which the probate court might have lawfully exercised. State ex rel. Kinealy v. Hostetter, 340 Mo. 965, 104 S.W.2d 303; In re Helm's Estate, Mo.App., 136 S.W.2d 421." Evans v. York, Mo.App., 195 S.W.2d 902, loc. cit. 905, 906.
The judgment appealed from is reversed and the cause is remanded with directions to the trial court to dismiss the action.
HUGHES and McCULLEN, JJ., concur.