Summary
In Gwin v. Fountain, 126 So. 18, 22 (Miss. 1930), the Mississippi Supreme Court held that "[t]he relation of attorney and client is one of special trust and confidence.
Summary of this case from Fid. Nat'l Title Ins. Co. v. Colson (In re Colson)Opinion
No. 28082.
January 20, 1930.
1. EXECUTORS AND ADMINISTRATORS. Trusts. Will giving executor and trustee power to employ persons necessary to manage trust estate included power to employ counsel.
Will giving executor and trustee, without precedent order of chancery court or a subsequent approving order, power to employ all persons necessary to properly conduct and manage trust estate, in order to carry out testator's purposes, included employment of competent counsel to advise and aid executor and trustee in execution of trust.
2. EXECUTORS AND ADMINISTRATORS. Trusts. Under will giving executor and trustee power to employ persons necessary to manage estate, obligation incurred for attorney's services was made charge against trust estate.
Under will giving executor and trustee full power to employ persons necessary to properly conduct and manage trust estate, in order to carry out testator's purposes, obligation incurred in employing counsel was made charge against trust estate and not personal charge against executor and trustee.
3. EXECUTORS AND ADMINISTRATORS. Trusts. Where will empowered executor and trustee to employ persons necessary to manage trust estate, attorney's fees could be made charge against trust estate ( Hemingway's Code 1927, section 1875).
Where will gave executor and trustee full power to employ persons necessary to properly conduct and manage trust estate, in order to carry out testator's purposes, fees of attorney employed by executor and trustee could be made charge against trust estate, since powers conferred on executor and trustee took administration of estate out of operation of Code 1906, section 2131 (Hemingway's Code 1927, section 1875), providing that, in settlements, executor is entitled to credit for reasonable sums paid for services of attorney in behalf of estate.
4. ATTORNEY AND CLIENT. Dealings between attorney and client must be characterized by utmost fairness and good faith.
All dealings between attorney and client must be characterized by utmost fairness and good faith on part of attorney.
5. ATTORNEY AND CLIENT. Dealings between attorney and client are held, as against attorney, to be prima facie fraudulent.
Dealings between an attorney and his client are held, as against attorney, to be prima facie fraudulent, and attorney, in order to sustain such transaction when advantageous to him, has burden of showing, not only that he used no undue influence, but that he gave his client all information and advice which it would have been his duty to give if he himself had not been interested.
6. ATTORNEY AND CLIENT. Equity will relieve client from undue advantage secured over him by attorney.
Equity will relieve client from hard bargain or from any undue advantage secured over him by his attorney.
7. ATTORNEY AND CLIENT. One acting in fiduciary capacity cannot use that relation to benefit his personal interests, except with full knowledge and consent of the other.
One acting in fiduciary capacity cannot make use of that relation to benefit his own personal interests, except with full knowledge and consent of the other person.
8. ATTORNEY AND CLIENT. Actual fraud, involving moral turpitude on part of attorney dealing with client, is not indispensable element of fraud.
Actual fraud, involving moral turpitude, on part of attorney in transaction with client, is not an indispensable element of fraud, but facts and circumstances growing out of relation may be such that advantage gotten by attorney constitutes fraud in law on rights of client, regardless of good faith of attorney.
9. ATTORNEY AND CLIENT. Attorney's trust relations to legatees and to estate held of such character as to render decree for allowance of attorney's fee fraudulent in law, where attorney did not give them actual notice court would be asked to make order allowing fee.
Where attorney had been original executor's counsel throughout his executorship, and was attorney for executor who succeeded him, and attorney was also legal adviser of legatees and devisees under will, and, in addition, there existed between attorney and his family and legatees and devisees very intimate social relations, attorney's trust relations to devisees and legatees and to estate held of such character as to render decree for allowance of attorney's fee against estate fraudulent in law, where he did not give them actual notice that executors of deceased executor filing final report of such executors' administration of estate would ask court to make order allowing attorney's fee for services to estate.
10. ACTION. Suit to set aside decree allowing attorney's fee against estate and action by corporation, organized under provisions of will, for goods sold attorney, held properly consolidated.
Suit by executors to set aside decree allowing attorney's fee against estate and action by corporation, organized under provisions of will to carry out provisions of will, for goods, wares, and merchandise sold to attorney and his family, held properly consolidated and tried together.
11. ACTION. Where there are several actions between same parties, subject-matter being same, requiring same general character of evidence, court may consolidate actions.
Where there are several actions between same parties, subject-matter being same in each, requiring substantially same general character of evidence in each, court, to save time and expense, is authorized to consolidate actions, and try them as one cause.
12. ACTION. Appeal and error. Whether cases should be consolidated rests in court's sound discretion, which will not be interfered with on appeal, unless abused.
Whether cases should be consolidated rests in sound discretion of court, and this discretion will not be interfered with on appeal, unless it is abused.
13. ACCOUNT, ACTION ON. Where account is sworn to, proof of correctness of items is dispensed with, unless there is counter affidavit ( Hemingway's Code 1927, section 1710).
Under Code 1906, section 1978 (Hemingway's Code 1927, section 1710), where account sued on is properly sworn to, proof of correctness of items of account is dispensed with, unless there is counter affidavit by defendant, denying genuineness of items in whole or in part.
14. ACCOUNT, ACTION ON. Statute relating to affidavit to account does not alter law of pleading, and defendant, without counter affidavit, may contest liability, though account is sworn to ( Hemingway's Code 1927, section 1710).
Code 1906, section 1978 (Hemingway's Code 1927, section 1710), relating to affidavit to account prescribes rule of evidence, and does not alter law of pleading, and defendant, without counter affidavit, is entitled to contest his liability, notwithstanding account be sworn to.
15. ACCOUNT, ACTION ON. Affidavit to account held substantial compliance with statute ( Hemingway's Code 1927, section 1710).
Affidavit reading "affiant says further that the foregoing account in favor of W.T.F., incorporated, against S.L.G. and charged to Mrs. S.L.G., to which this affidavit is affixed, is true and correct as therein stated, and is now past due and unpaid and owing by the said S.L.G. to said W.T.F., incorporated," held substantial compliance with Code 1906, section 1978 (Hemingway's Code 1927, section 1710).
16. EXECUTORS AND ADMINISTRATORS. Trusts. In suit to set aside decree allowing attorney's fee against estate, in which attorney asked for allowance of reasonable fee if decree was void, evidence regarding value of services held improperly excluded.
In suit to set aside decree allowing defendant certain sum as attorney's fee against estate, in which defendant prayed that, in event court should hold decree to be void, defendant be allowed a reasonable fee for his services to estate, evidence regarding value of services as attorney held improperly excluded, where decree was set aside, but, under terms of will empowering executor and trustee to employ persons necessary to manage estate, attorney's fee could be made charge on trust estate, and was not personal liability of executor and trustee.
ON SUGGESTION OF ERROR. (Feb. 23, 1931.) [132 So. 559. No. 28082.]APPEAL AND ERROR. Supreme Court cannot decide issues of fact pretermitted by trial court, nor consider evidence which trial court excluded.
The Supreme Court is a court of appellate jurisdiction only, and cannot decide issues of fact which have been pretermitted by the court below, nor decide issues of fact by considering evidence which was excluded by the lower court.
APPEAL from chancery court of Leflore county. HON. HARVEY McGEHEE, Chancellor.
Means Johnston, of Greenwood, S. Rosenthal, of Jackson, and Cutrer Smith and G.E. Williams, all of Clarksdale, for appellant.
The court erred in declaring the decree of December 7, 1922 void and in excluding evidence thereon.
The decree sought to be set aside is a valid, binding, subsisting and final decree which cannot now be disturbed.
Appellant readily recognizes the rule that ordinarily the employment of counsel by representative results in the personal obligation of the representative to the attorney, but in the instant case not only under the provisions of the will, but under the facts set out in this record appellant contends that the obligation was an obligation of the estate of W.T. Fountain deceased.
A representative cannot be required to surrender or make distribution of the assets of the estate until he is allowed pay for the services of the solicitor.
McDonough Estate, 117 N.Y.S. 258; Clopton v. Ghelson, 53 Miss. 468.
This court on the question of subrogation held that one advancing money to an executor, which was used for the benefit of the estate, was entitled to be subrogated to the executors right to reimbursement.
Wood v. Ridley, 27 Miss. 119; Norton v. Phelps, 54 Miss. 167; Estate of Pedroli, 221 P. 241; Note 35 A.L.R. 50.
Clearly the doctrine of subrogation applies to that part of the indebtedness to appellant incurred during the executorship of Mr. Wright. Every requisite of subrogation exists.
Among other grounds why the complainants cannot attack the decree of December 7, 1922, is the doctrine of laches, estoppel and acquiescence.
Volume 15 R.C.L., section 146, page 694; Section 142 of 10 R.C.L., page 395.
The court erred in refusing to allow defendant to restate his ground of objection to testimony which seeks to impeach the decree of December 7, 1922.
The court was without authority to consolidate circuit and chancery court case, try same and render final decree in vacation, without consent of the parties, and final decree so rendered in vacation is void.
Y. M.V.R.R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; J.J. Newman Lumber Company v. Pace et al., 137 Miss. 504, 102 So. 570; Callicott v. Horn, 137 Miss. 693, 102 So. 850; Morris v. Trussell, 144 Miss. 343, 109 So. Rep. 854; Griffith Miss. Chan. Practice, section 624, page 711.
The court erred in admitting in evidence the open account of W.T. Fountain, Inc., with affidavits annexed, and rendering judgment on said account against the defendant, without first requiring the complainant to prove the items of said account.
Section 1710, Hemingway's Code of 1927.
In order to introduce an open account in evidence without being being required to prove the items thereof, there are two things necessary and essential that must be alleged in the affidavit attached to said account; they are as follows: First: That the account is true and correct; and Second: That it is due from the party against whom it is charged.
It is appellant's contention that it was impossible under the proof in this case for complainants to make the affidavit as required under the provisions of section 1710 of Hemingway's Code of 1927, to-wit: "That it is due from the party against whom it is charged," for the reason that the proof shows that the account sued upon was charged to Mrs. S.L. Gwin, and not the defendant S.L. Gwin.
The sole object of the statute is to dispense with proof of the original correctness of the account when sworn to, unless defendant shall deny it by affidavit filed with his plea.
Reinhardt v. Carter, 49 Miss. 315; Bower v. Henshaw, 53 Miss. 345; 1 C.J., section 195, at page 666; Section 197, 1 Cyc., section (b), at page 490.
A statute which is plain and unambiguous must be given full effect, and the court may not add anything to it, or take anything from it; nor can it determine the wisdom of the statute, but it must enforce it as written.
Hammer v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Abbott v. State, 106 Miss. 340, 63 So. 667; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Prather v. George, 108 Miss. 670, 67 So. 157; State v. Newman Lbr. Co., 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.) 858.
Our court has uniformly held that statutes in derogation of the common law must be strictly construed against the party asserting the claim.
Potter v. Fidelity Deposit Co., 101 Miss. 823, 58 So. 713; Gibson v. Hughes, 6 Howard, 315; Hopkins v. Dandidge, 31 Miss. 668; Edwards v. Gaulding, 38 Miss. 118; Dibrell v. Dandridge, 51 Miss. 66; Shattuck v. Miller, 50 Miss. 386.
The court erred in refusing to allow the defendant to file a counter-affidavit to the open account.
The court erred in striking the plea of the statute of limitations from the files.
The open account showed on its face that approximately one-half of the items set out therein were barred by the three year statute, and complainants, in their petition in chancery court, set out as a fact that a large portion of the items were barred.
In the case of Wilson v. Peacock, 111 Miss. 116, 71 So. 296, in speaking of rules of the court under the circumstances of that case, said:
Mere rules of practice, should never stand in the way of permitting the jury to hear the witnesses, and in this case the record shows that nothing save a rule of practice denied the substantial rule of justice to the defendants. The trial court has the power, and should always exercise it, to relax or suspend all court rules, to the end that litigants may be assured of a full and fair hearing on their side of the controversy.
The plea of the statute of limitations was a proper plea under the facts of this case and should not have been stricken from the files.
Levi Cook et al. v. N.E. Rives, 13 Sm. M. 328; Hudson, Survivor, v. T.A. Kimbrough, Administrator, 74 Miss. 341; Minor v. McDowell, 113 So. 576.
The court erred in granting a decree in favor of complainants and against defendant.
The courts erred in permitting complainants to prepare final decree without requiring same to be submitted to solicitors for the defendants.
Griffith's Miss. Chan. Prac., section 624, page 711.
The decree complained of is an entirety, and its provisions are inseparable.
The decree is based on the principles of the doctrine of subrogation. Indeed, it is in its every provision the very embodiment of the doctrine.
Finnerty v. Peenie, 34 P. 869; Huston v. Becker, 47 P. 10.
It would have been foolish waste of time for appellant to probate his claim against the Wright estate. His claim represented a direct obligation of the estate of W.T. Fountain, and C.E. Wright was in no wise personally liable. The will expressly provided he should not be, and the solicitor accepted his employment with full knowledge of the terms and contents of the will.
The procedure adopted in this case not only is violative of our constitution, but, if permitted, would permit a complainant to escape the following well established principle of equity:
"The courts of equity never interpose to wrest from a party any legal advantage he may have gained, without requiring his adversary to do complete justice, either by paying the amount due or by submitting to any other order of the court, which may be necessary to adjust the rights of the parties with each other, according to the fair dealing and good conscience.
Freeman on Judgments, section 516.
The decree is final.
Chadbourne v. Hartz, 101 N.W. 68 (Minn.); Lowry v. McMillan, 35 Miss. 147; 11 R.C.L. Ex. Admx. 200, 201; Freeman on Judgments 516. Cutrer Smith and G.E. Williams, all of Clarksdale, and Means Johnston, of Greenwood, for appellant.
Appellant submits with the utmost respect to the court, but with absolute conviction that the court must, under the law of the land as expounded by it, and under its constitutional limitations, amend its opinion and judgment in this case as to its findings and instructions to the trial court, in one of two ways:
First, it must adjudicate that the summons issued upon the petition filed by J.M. Pace and E.L. Mounger, executors of C.E. Wright to W.M. Fountain, and his co-defendants in that proceeding was insufficient in law, because not stating the petition prayed for the adjudication of attorney fees; to that we have no objection: or,
Second, the case must be remanded to the chancery court for further and full evidence on open hearing and adjudication by the trial court on the question of whether there was actual notice of the petition and its contents and the decree thereon, because the evidence as to such notice upon which the Supreme Court has determined the law of the case is purely ex parte, and the defendant below, appellant here, has never had a day in court personally or by witnesses on this issue.
The jurisdiction conferred upon the Supreme Court by the constitution and statutes are as follows:
Section 146 of the Constitution is as follows: "The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals."
Section 3392, Hemingway's Code, 1927; Section 3397, Hemingway's Code, 1927; Section 3400, Hemingway's Code, 1927.
It has been uniformly held by this court that where all of the evidence is in the record, and the record of the trial is complete, and, there is no matter of fact to be ascertained, and no matter of fact is uncertain, the decision of the trial court, which may have been grounded on one reason, may be affirmed by the appellate court for another reason; that is the correct decision of the trial court may be upheld although based upon the wrong reason.
Section 3400, Hemingway's Code, 1927; Y. M.V. Ry. Co., et al. v. Adams, Rev. Agt., 81 Miss. 90, 32 So. Rep. 937; Y. M.V. Ry. Co. v. Hawkins, 104 Miss. 55, 61 So. 161.
Whereas, when evidence has been excluded on one side, and there is some matter of fact to be ascertained, for instance the issue of fraud, in the case at bar, or where said issue to be determined is unascertained, and the issue to be determined, for instance the validity of the decree of December 7, 1922, has been determined upon an incorrect legal conclusion, the rule is to the contrary.
Section 3400, Hemingway's Code 1927; Thompson, Trustee, et al. v. First Nat. Bank of Jackson, 84 Miss. 54, 36 So. 65; Gray v. Bryson et al., 87 Miss. 304, 39 So. 694; Edwards v. Kingston Lbr. Co., 92 Miss. 598, 46 So. 69; Y. M.V. Ry. Co. v. Wallace, 90 Miss. 609, 43 So. 469; Pierce v. Halsell, 90 Miss. 171, 43 So. 83; R.R. Co. v. Dodd et al., 105 Miss. 23, 61 So. 743.
An appellate court cannot for the first time pass upon evidence. There must have been a finding by a trial court, whether in the circuit or chancery court, upon the facts before the appellate court has jurisdiction to act.
Gary v. Bryson et al., 87 Miss. 304, 39 So. 694; Edwards v. Kingston Lbr. Co., 92 Miss. 598, 46 So. 69; Y. M.V. Ry. Co. v. Wallace, 90 Miss. 609, 43 So. 469; Pierce v. Halsell, 90 Miss. 171, 43 So. 83; R.R. Co. v. Dodd et al., 105 Miss. 23, 61 So. 743; Thompson, Trustee et al. v. First Nat. Bank of Jackson, 84 Miss. 54; Marks v. Price, 27 So. Rep. 600; Edmons, by next friend, v. Mister, 58 Miss. 765.
The Supreme Court should render such judgment or decree as the court below should have rendered, if there is no conflict in the evidence, and there is no fact to be ascertained, or where the fact to be determined is certain.
Section 3400, Hemingway's Code, 1927; Hines, Director Gen. of Railroads et al. v. Cole, 123 Miss. 254, 85 So. 199; Jackson Coca Cola Bottling Works v. Grubbs, 143 Miss. 590, 108 So. 773; Hairston et al. v. Montgomery, 102 Miss. 364, 59 So. 793.
Gardner, Odom Gardner, of Greenwood, for appellees.
The decree allowing a twenty-five thousand dollar solicitor's fee to appellant was void, both the law and the facts justify the lower court setting aside decree which allowed the appellant twenty-five thousand dollars for legal services covering a period of ten months and seventeen days.
It is appellee's contention that the decree allowing the appellant a twenty-five thousand dollar solicitor's fee for services rendered to C.E. Wright as executor, covering the period of ten months and seventeen days is fraudulent and void for several reasons, and that the action of the lower court should be sustained; 1st, because it was so excessive as to amount to fraud; 2nd, because of the various elements of bad faith charged in the petition and fully sustained by the proof in this case.
6 Corpus Juris, pp. 686-688.
It was appellant's duty to keep the executor advised.
Freeman on Judgments, Vol. 3, sec. 1235.
Transactions between an attorney and client under the facts shown by this record are presumptively fraudulent and void.
25 C.J., p. 1120.
Appellees were not estopped to question the validity of the decree on account of the lapse of time.
Section 1882 of Hemingway's Code of 1927; Smith v. Hurd, 7 How. 188; Freeman v. Rhodes, 3 S. M. 329.
The usual course of decision is, that annual or partial settlements, are only prima facie evidence in favor of the executor or administrator, and that they may be surcharged or falsified at any time before the final settlement, upon a proper proceeding.
Chilton's Probate Court Law and Practice, 332; Liddel v. McVicker, 6 Halstead 44 (19 Am. Dec. 369); Lupton v. Janney, 13 Peters (U.S.) 381, 10 L.Ed. 210; 2 Lomax Exrs. 311; Turney v. Williams, 7 Yerg. (Tenn.) 210; Burwell v. Anderson, 3 Leigh (Va.) 348; Harper v. Archer, 9 S. M. 71-74.
The ruling of the court was based on section 1875, Hemingway's Code of 1927.
Prior to the enactment of section 1875 of the Code of 1927, our court held in a long list of cases that the executor could not be reimbursed from the estate on account of payments made by him to attorneys, even though the services of an attorney became necessary in the management and administration of the estate. We refer to the following decisions of our court in support of this statement: Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 54 Miss. 467; Hines v. Potts, 56 Miss. 346; Parham v. Stith, 56 Miss. 465; Stern v. Hampton, 75 Miss. 555, 19 So. 300; Howell v. Myer, 105 Miss. 771, 63 So. 233.
The interpretation placed on section 1875, Hemingway's Code of 1927 by the learned chancellor below is correct and finds ample support in the decision of our court in the Myer case, supra. It is not within the province of the courts to add anything to a law written by the legislature.
Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890.
The statute under consideration is plain and unambiguous and needs no construction.
Hammer v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466.
The allowance should be made to the representatives and not directly to the attorney.
24 C.J., pp. 1054-1056; McKee v. Soher, 138 Cal. 367, 71 P. 438, 649; In re Kruger, 123 Cal. 391, 55 P. 1056; Levison's Est., 108 Cal. 450, 41 P. 483, 42 P. 479; Matter of Wright, 121 App. Div. 581, 106 N.Y.S. 369; Wilcox v. Smith, 26 Barb. (N.Y.) 316; Matter of Kreidler, 68 Misc. 412, 124 N.Y.S. 628, 7 Mills Surr. 559; Matter of Gates, 2 Redf. Surr. (N.Y.) 144; Vaughn v. Walsh, 122 Wis. 486, 100 N.W. 840; Parker v. Parker, 71 Miss. 164, 14 So. 456.
Counsel for appellant seek to avoid the provisions of section 1875, Hemingway's Code of 1927 by contending that, under the provisions of the last will and testament of W.T. Fountain, the executor, by the broad powers given him under the will, had a right to incur liability for an attorney's fee. The particular section of the will relied on by counsel is section 5, which is found in Vol. 1 of the Record, p. 32. We are unable to see any merit whatever in this contention, for the reason that the statute itself gives the executor the right to incur liability for a reasonable attorney's fee for services rendered in good faith, and same will be allowed him as a credit in making his final settlement, provided same has been paid by the executor.
The consolidation and trial of causes in vacation was by consent of appellant.
The chancellor by consent of the parties or of their solicitors of record, may try causes and deliver opinions and make and sign decrees therein in vacation.
Section 267 of Hemingway's Code of 1927.
The objection to the consolidation and trial of the causes in vacation comes for the first time in this court, and counsel will not be heard to complain.
Binns v. Stokes, 27 Miss. 234, 242 and 243; Burroughs Land Company v. Murphy, 131 Miss. 526, 95 So. 515; Compress Company v. Railway Co., 70 So. 703; Estes v. Railway Co., 119 So. 199.
The appellant, by failing to make any objection to the consolidation of the causes and the trial thereof in vacation waived any rights that he might have had as to such questions.
Morris v. Robinson Bros. Motor Co., 144 Miss. 861, 110 So. 683; Owens v. Waddell, 87 Miss. 310, 79 So. 459; 87 Miss. 315 and 316; N.O.J. G.N.R.R. Co. v. Wallace, 50 Miss. 244.
The sworn itemized account against the appellant in favor of W.R. Fountain, Inc., was properly admitted in evidence and appellant's liability thereon clearly established.
The appellant was on the stand practically a whole day and did not deny that the account was true and correct.
The affidavit is a substantial compliance with the statute.
Section 1710 of Hemingway's Code of 1927.
We agree with opposing counsel in that the affidavit must state that the account is true and correct. The affidavit in the present case does this.
All that was intended by the last provision of the statute was to require the affidavit to charge the defendant with liability on the account.
The statute does not alter the law of pleadings, and the defendant, without a counter affidavit is entitled to have the case submitted to the jury under the plea of general issue, notwithstanding the account be sworn to.
Reinhardt v. Carter, 49 Miss. 315; Aaron v. Podesta, 60 Miss. 82; Gulf, etc. R.R. Co. v. Kelly, 131 Miss. 133, 95 So. 931.
The essential requirement and the prime purpose of the statute was to establish the correctness of the items of the account.
Reinhardt v. Carter, 49 Miss. 315; Bower v. Henshaw, 53 Miss. 345.
Admissions of appellant made the itemized account competent evidence, regardless of the sufficiency of the affidavit.
An account may be supported without proof as to the particular items by proving that defendant had admitted the account to be correct.
1 C.J., page 662, par. 187; 20 Enc. of Plead and Prac., pp. 620-623.
It is not necessary to prove the correctness of specific items of an account if the correctness of the account as a whole can be otherwise established.
1 C.J., p. 662, par. 186.
Appellant's liability on the account was clearly established.
The lower court properly refused to allow the filing of a counter-affidavit to the open account.
The plea of the statute of limitations was properly stricken from the files.
The appellant is not in a position to complain of the action of the court in striking from the files the purported plea of the statute of limitations to the open account. The lack of diligence in this regard on the part of appellant and his counsel amounts to inexcusable negligence which now precludes appellant from complaining.
Section 94 of Griffith's Chan. Prac.; Griffith's Chancery Practice, secs. 392 and 393.
We feel throughly convinced that, under the facts and circumstances as disclosed by the record with reference to the filing of the plea in question and the law governing such matters, that the action of the court in this regard was fully warranted and should not be disturbed.
The purported plea of the statute of limitations appearing of record, is insufficient in law and amounts to no plea whatever. There is a failure to comply with section 2637, Hemingway's Code of 1927.
The plea under consideration is designated as an answer of the defendant and attempts to embrace several defenses.
The plea does not follow the statute. The statute says that the action on an open account shall be commenced within three years next after the cause of action accrued and not after; the appellant in his plea said that he did not undertake nor promise to pay at any time within three years next after said cause of action accrued. The essential requirement of the statute is the commencing of the action within three years after the accrual thereof, and not the promise to pay within three years after same accrued.
The suggestion of error filed by appellant asks relief already granted.
Appellant cannot complain of error for which he is responsible.
There is abundant proof in the record to uphold the decision of this court on the question of fraud. The appellant alone is responsible and cannot complain because there is no additional and further proof in the record on this question inasmuch as it clearly appears from the record that the refusal of the trial court to permit additional proof along this line came only after counsel for appellant had, for a period of practically three days, pressed their objection to any and all evidence which sought to impeach the decree of December 7, 1922, in which the twenty-five thousand dollars ($25,000) allowance as attorney's fee was made. If the lower court erred in excluding such testimony appellant cannot complain after having urged the court to make such a ruling.
Fraud in obtaining allowance was clearly established by the undisputed proof in the record.
Freeman on Judgments, Vol. 3, sec. 1235.
It is a well settled equitable rule that anyone acting in a fiduciary relation shall not be permitted to make use of that relation to benefit his own personal interest, except with the full knowledge and consent of the other person.
25 C.J., p. 1120.
The fee allowed is so exorbitant as to amount to fraud.
The proffered testimony of appellant would not disprove fraud.
The dealings between attorney and client are not characterized by the utmost fairness and good faith which the law requires and come within the condemnation of the rule announced by all the authorities and especially as stated through Justice ANDERSON in the opinion of the court in the case at bar.
Counsel for appellant have made a very skillful attempt to confuse the real issue with reference to the matter of fraud. They would have the court dispose of the entire matter of fraud on the question of notice alone, which constitutes only one element of fraud.
On the entire record in this case, justice had been done, and we submit that even if the lower court were technically wrong in excluding the evidence offered by appellant on this question (which we do not admit), this action of the lower court has not resulted in any prejudice whatever to appellant.
No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.
Rules of the Supreme Court of Mississippi, 104 Miss. 906, 72 So. VI.
A party cannot lead the court into error and then take advantage of his own wrong. This is an elementary principle of law, founded on justice and common sense.
Jones v. Bunch, 125 So. 551; Pearce v. Tharpe et al., 79 So. 69; 4 C.J., page 700; 12 R.C.L.; 4 C.J., page 705.
On the question of the sufficiency of the evidence it is our contention that the appellant will not be heard to complain. He is estopped by his conduct in the lower court.
4 C.J., page 706.
The allowance of the attorney's fee in question is void because made to the attorney.
24 C.J., pages 1054-56; Parker v. Parker, 71 Miss. 164, 14 So. 456.
The will of W.T. Fountain, deceased, was not before the court and should not have been considered.
A party may not be heard to object to or complain of what was done by his consent or procurement.
Tucker v. Hadley, 52 Miss. 414; Virginia-Carolina Chemical Co. v. Kirven, 215 U.S. 252, 52 L.Ed. 179.
Argued orally by G.E. Williams and Means Johnston, for appellant, and by H.T. Odom and A.F. Gardner, for appellees.
This is an appeal from the chancery court of Leflore county from a decree setting aside and vacating a former decree of that court allowing appellant an attorney's fee of twenty-five thousand dollars against the estate of W.T. Fountain, deceased, in the matter of the administration of that estate, and awarding a recovery against appellant in favor of appellees in the sum of forty-two thousand six hundred thirty-eight dollars and fifty-one cents. From that decree appellant prosecutes this appeal.
Appellant assigns and argues several grounds for reversal of the decree. The conclusion we have reached renders it necessary to decide only the following: Whether the court erred in setting aside its former decree allowing appellant an attorney's fee of twenty-five thousand dollars for services rendered by him in the administration of the estate of W.T. Fountain, Sr.; whether the court erred in consolidating the circuit court case with the chancery court case, and trying both as one cause; whether the sworn, itemized account against appellant in favor of W.T. Fountain, Sr., was properly admitted in evidence, and appellant's liability therefor established; whether the court erred in excluding the evidence offered by appellant for the purpose of showing the value of his legal services to the estate of W.T. Fountain, Sr., during the administration of both executors. We will consider and decide these questions in the order stated, and in doing so will set out the material facts out of which each question arises.
The court held that the decree allowing appellant an attorney's fee of twenty-five thousand dollars for his services rendered the estate of W.T. Fountain, Sr., during the executorship of C.E. Wright, was void, because violative of section 2131, Code of 1906 (section 1875, Hemingway's Code of 1927), and the principles declared in Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 54 Miss. 467; Hines v. Potts, 56 Miss. 346; Parham v. Stith, 56 Miss. 465; Stern v. Hampton, 73 Miss. 555, 19 So. 300; and Howell v. Myer, 105 Miss. 771, 63 So. 233. The statute provides as follows:
"In annual and final settlements, the executor or administrator shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate if the court be of opinion that the services were proper and rendered in good faith."
The court held that appellant's fee for his services during the executorship of Wright was a personal liability of the executor, and therefore the decree rendered after the death of the executor, Wright, fixing the fee and making it a charge upon the estate, was void. It was held in the above cases referred to that debts contracted by executors and administrators are binding only as personal obligations, and cannot bind the estate committed to them, except where specially authorized by statute, and that this was true of counsel fees incurred for legal services in the management of the estate.
The statute (section 2131, Code of 1906 [section 1875, Hemingway's Code of 1927]) was passed in 1882. It was merely declaratory of the common law. Clopton v. Gholson, supra. Among other things, it was held in that case that, while a trustee has a lien on the trust estate in his hands for costs and expenses legally incurred by him in its administration, this privilege does not extend to agents employed by him — that such agents must look alone to the trustee for reimbursement; that, while the trustee who had paid or become responsible to persons legitimately employed by him in the business of the estate may retain the assets for his own reimbursement, yet, if he does not do so, the parties employed by him are ordinarily powerless to assert any claim against the estate. The court said:
"If the trust estate was liable to be attacked and impleaded by every person who had dealt with the trustee, and forced to litigate with them in the nature, value and beneficial character to the estate of the services alleged by them to have been rendered, it would be involved in endless complications, and be perhaps swallowed up or seriously injured by the accumulations of costs. The law, therefore, compels such persons to look to the trustee with whom they dealt, and against whom alone they have a legal demand. If their claim is recognized or enforced against him, he presents it to the proper tribunal, and with him the beneficiaries of the estate will litigate the question of the propriety of its allowance against themselves."
That case involved a claim by attorneys for fees for their services rendered the executors in the administration of the estate in their hands. When the claim was presented to the court for allowance, both of the executors had died, and an administrator with the will annexed had been appointed. The court held that the estate was not liable for the attorneys' fees, but that it was a liability of the executors.
The question is, Do these principles apply to the facts of this case? And this question turns upon the proper construction of the will of W.T. Fountain, Sr., who died on October 26, 1919, leaving a last will and testament, which was probated on November 6, 1919. His sole heirs and legatees and devisees under his will were the appellees in this case, his wife and three sons, Ella Whitehead Fountain, and W.M. Fountain, N.W. Fountain and W.T. Fountain, Jr. When W.T. Fountain, Sr., died, his son, W.M. Fountain, was an adult, and the other two sons were minors. The estate of the decedent consisted almost exclusively of a large mercantile business in the city of Greenwood — a department store — the value of which was approximately five hundred thousand dollars. The only other property he owned was a house and lot, formerly his residence, of the value of something like five thousand dollars, which was willed to his wife. The mercantile business was willed to the wife and the three sons, share and share alike. C.E. Wright was named in the will as executor and trustee. Two outstanding provisions of the will were that the mercantile business should continue uninterrupted; and that the executor, C.E. Wright, should have the same power and authority to manage and carry on the business as the testator had in his lifetime.
In paragraph 4 of the will it was provided: "That the business shall be carried on in the manner in which it has been heretofore conducted by me, and I hereby authorize and empower my said executor so to do;" and it was provided in paragraph 5 that the executor "shall have plenary power and authority to carry on my said business and to do any and all things which in his discretion may be necessary or proper for that purpose (which in his discretion shall be full and final) which will be calculated best to promote the interests of the business;" and that the executor, according to his judgment, should have full power and authority to incur debts to any amount, and for any purpose, in connection with the conduct, continuance, and growth of the mercantile business; and to that end "my said executor may sell, pledge or otherwise deal with or dispose of, any or all of my property, real and personal" (except the former homestead devised to his wife) "in such manner as he, in his discretion, may think proper."
In paragraph 7 of the will, the executor was authorized, if, in his discretion, he thought it would be conducive to the interests of the mercantile business to organize a corporation for the purpose of purchasing and owning the business, with the authority in him to transfer the business and all its assets to the corporation so organized, the stock in such corporation to belong to the testator's wife and children; but that during the executorship of C.E. Wright the stock should be controlled and voted by the executor and such other person or persons as he might name for that purpose; but that Wright, the executor, should at all times have control, and direct the policy of the corporation, "and select the personnel of its management;" that during the executorship of Wright the shares of stock belonging to his wife and children should not be pledged or disposed of by them without the consent of Wright; that the stock in the corporation so organized should be issued to the executor, Wright, as trustee for the testator's wife and children. (A corporation was accordingly organized.) Paragraph 8 of the will provided that C.E. Wright, the executor, should have the authority to resign his executorship, and turn the mercantile business over to the testator's sons, or some one or more of them, when the executor should, in his judgment, decide that such son or sons were capable of properly conducting the business; and, when this was done, such son or sons taking the place of Wright should have all the powers conferred by the will on the latter. But it was further expressly provided in that paragraph that Wright should continue as executor and trustee under the will, "until such time as he, in his discretion, which shall be full and final," should determine that one or more of the sons were capable of taking his place.
In paragraph 9 it was provided that, if at any time the executor, Wright, should for any reason become unable or unwilling to perform the duties of executor and trustee under the will, he should have the power and the authority, with the approval of the chancellor of the chancery court district in which Leflore county is situated, to appoint his successor as executor and trustee; and "at any time thereafter the said C.E. Wright may remove his successor so appointed, and appoint his successor in the same manner; and may continue to exercise the same power of removal and appointment as often as he may desire. The said C.E. Wright shall have power also to designate by his will, or other written instrument which may be left by him at his death, his successor as executor and trustee hereunder, which shall become effective as an appointment whenever approved by said chancellor." And any executor or trustee so appointed by Wright should have all the power and authority in the management of the estate conferred by the will on Wright. Paragraph 10 provided that the executor and trustee under the will should have the power to determine what part of the income or corpus of the estate, if any, should be devoted to the maintenance and support of the wife and children. Paragraph 13 provided that the executor and trustee should not be liable to the legatees and devisees under the will "for any error of judgment or loss in good faith incurred or suffered from or during the continuance or operation of said mercantile business, or otherwise in connection with the control of my estate."
It will be seen from the will that two of the fundamental purposes of the testator were to confer upon the executor and trustee absolute, full, and final discretion in the management, control, and disposition of the estate in the same manner and to the same extent that the testator would have had, if living, and to relieve the executor from any and all personal liability on account thereof, except that incurred on account of bad faith on his part.
Now, do the principles laid down in the Clopton case, and other cases along that line, apply to an estate being administered under a will with such broad and comprehensive powers vested in the executor and trustee as are conferred by this will? We think not. The will gave the executor and trustee full power, without a precedent order of the chancery court, or a subsequent approving order, to employ all the persons necessary to properly conduct and manage the trust estate, in order to carry out the purposes of the testator; and this power included the employment of competent counsel to advise and aid the executor and trustee in the execution of his trust; and in the grant of these powers the will relieved the executor and trustee from any personal liability, except for bad faith. By the will the obligations thus incurred were made charges against the trust estate, and not personal charges against the executor and trustee.
So we conclude that the powers conferred by this will on the executor and trustee necessarily took the administration of this estate out of the operation of the statute, and of the principles of the Clopton case, and other cases of like kind, relied on by appellees. Surely a testator could expressly provide in his will that his executor should have the power to employ counsel to assist him in the administration of the trust estate; and that a reasonable fee for such services should be a charge against the trust estate, and not a personal liability of the executor. That is exactly what the will here does — if not expressly, by necessary implication.
It follows from these views that the action of the court in setting aside and vacating the decree allowing appellant the twenty-five thousand dollar fee out of the trust estate, upon the ground that the fee could not be made a charge upon the trust estate, but was a personal liability of the executor and trustee, was erroneous.
However, we are of opinion that the action of the court in setting aside and vacating the decree must stand, because the record in this case shows that there was another ground sufficient to support the action of the court in that respect. Appellees charge in their bill that the decree was void because it was procured by fraud on the part of the appellant. At the time of the allowance of the fee, appellant was attorney for C.E. Wright, the executor and trustee under the will of W.T. Fountain, Sr., in his lifetime. He was the attorney of W.M. Fountain, who succeeded C.E. Wright as executor and trustee of the will of W.T. Fountain, Sr. Appellant was the legal adviser of the appellees, the legatees and devisees under the will of W.T. Fountain, Sr.; and, in addition, there existed between appellant and his family, on the one hand, and the appellees, on the other, very intimate social relations. The decree allowing the attorney's fee to appellant was rendered in 1922. The evidence on behalf of appellees tended to show that they did not know of the existence of the decree until some time in 1928.
The relation of attorney and client is one of special trust and confidence. The law requires that all dealings between them shall be characterized by the utmost fairness and good faith on the part of the attorney. So strict is this rule that dealings between an attorney and his client are held as against the attorney to be prima facie fraudulent, and the attorney, in order to sustain such a transaction which is advantageous to him, has the burden of showing, not only that he used no undue influence, but that he gave his client all the information and advice which it would have been his duty to give if he, himself, had not been interested. The relation of attorney and client is regarded in much the same light as that of guardian and ward. Equity will relieve a client from a hard bargain or from any undue advantage secured over him by his attorney. The situation of an attorney with reference to his client puts it in his power to avail himself, not only of the necessities of his client, but of his liberality and credulity. The law not only carefully watches over all transactions between attorney and client, to see that no advantage is taken of the client by his attorney, but it often goes further, and holds such transactions void which between other persons would be held valid. It is a well-settled equitable principle that any one acting in a fiduciary capacity shall not make use of that relation to benefit his own personal interests, "except with the full knowledge and consent of the other person;" and, "when a fiduciary relation is established between parties, courts of equity scrutinize very closely any transaction between the parties by which the dominant party secures any profit or advantage at the expense of the person under his influence. All transactions between parties in this relation are presumptively fraudulent and void." And these principles apply to probate proceedings involving the administration of estates and guardianships, and similar trust relations. And, when such a relation exists, actual fraud, involving moral turpitude on the part of the attorney, is not an indispensable element of fraud. The facts and circumstances growing out of the relation may be such that the advantage gotten by the attorney constitutes a fraud in law on the rights of his client, regardless of the good faith of the attorney. 6 C.J. 686-688 and notes; 3 Freeman on Judgments, section 1235; 25 C.J. 1120.
In 1922 the executors of Wright filed a final report of Wright's administration of the estate. The petition of the executor accompanying the report set out, among other things, that appellant had been Wright's counsel throughout the latter's executorship and that he rendered necessary and valuable services in the administration of the estate; and prayed that reasonable compensation be fixed by the court for such services; and that W.M. Fountain, who succeeded Wright as executor, and had received the whole estate, be authorized and directed to pay appellant the fee so fixed by the court, out of the funds of the estate. On the filing of the report and petition, summons was issued by the clerk of the court for appellees, including W.M. Fountain in his capacity as executor, commanding them to appear and show cause, if any they had, why the final report should not be ratified and allowed by the court. There was no mention made in the petition as to the amount of fee appellant would claim for his services, nor was there any recital in this summons issued for appellees, giving them notice that Wright's executors would ask the court to make an order allowing appellant an attorney's fee for his services to the estate. W.M. Fountain, as executor, waives service of the summons; the summons was served on the other appellees. W.M. Fountain testified that he asked appellant whether or not it was necessary for any of the appellees to appear in court in response to the summons, and appellee replied that it was not.
On the hearing of the final report of Wright's executors, the court rendered a decree ratifying and allowing the report, and fixing appellant's fee for his services at twenty-five thousand dollars, which was made a charge upon the estate, and which W.M. Fountain, as executor, was directed and ordered to pay out of the estate in his hands.
An employee in appellant's law office testified that on the day after the rendition of the decree she was directed by appellant to send to W.M. Fountain, executor, a copy of the final report, the petition accompanying the same, and a copy of the decree, which she did. W.M. Fountain testified, as stated above, that he never knew of the provision in the decree allowing the attorney's fee, until some time in 1928. There was other evidence offered by both appellant and appellees, bearing on the question of whether appellees had notice that Wright's executors, in their final report, had asked the court to allow appellant a fee for his services to the estate. We deem it unnecessary to set out this evidence. It is sufficient to say we are of opinion that, under the evidence in the case, including that offered by appellant, and excluded by the court, appellant's trust relations to appellees and to the estate of W.T. Fountain, Sr., were of such a character as to render the decree for allowance of the attorney's fee fraudulent in law, notwithstanding it falls short of showing that appellant intended, in procuring the decree, to do the appellees any moral wrong. Appellant's relations to the estate and to appellees were such that he was called upon to say to appellees, in some form, substantially the following: "Until now our interests have been the same all through the administration of this estate — there has been no conflict. But now, so far as the allowance out of the estate of a fee for my services during Wright's administration is concerned, we have come to the parting of the ways. Our interests are adverse. I propose to ask the court to allow me a fee for such services" — stating to them approximately the amount he would claim — "I give you this notice so that you may have an opportunity, if you desire, to employ other counsel to represent you in this matter." In other words, nothing but actual notice to appellees was sufficient to put them on guard, that they might protect their interests.
Appellee's bill to set aside the decree allowing appellant the twenty-five thousand dollar attorney's fee was filed in the chancery court, and at about the same time W.T. Fountain, Incorporated, brought an action against appellant in the circuit court of Leflore county on a sworn, itemized account, for the recovery of the sum of thirty-five thousand eight hundred three dollars and sixty-four cents, with interest. This account was charged on the books of W.T. Fountain, Incorporated, to appellant's wife. It purports to represent goods, wares, and merchandise sold by W.T. Fountain, Incorporated, covering the period from January 1, 1923, up to a short time before the action was brought. The declaration charged that the indebtedness evidenced by this account was that of appellant, and not of his wife; that it represented goods, wares, and merchandise sold to appellant and his wife and family, on his credit, and not on the credit of his wife.
On the application of appellant, the circuit court cause was transferred by that court to the chancery court, where, on motion of appellees, the two causes were consolidated and tried together. The appellant assigns and argues as error the action of the court in consolidating the two causes.
We are of opinion that the court committed no error in requiring the causes to be consolidated and tried as one cause. The administration of the estate of W.T. Fountain, Sr., the services of appellant as attorney for the estate during the executorship of Wright, his services as attorney during the executorship of W.M. Fountain, who succeeded Wright, and the purchase by appellant and the members of his family of the goods, wares, and merchandise represented by the account which was the basis of the action in the circuit court case, were all so intimately connected and interwoven that it was eminently proper that the two causes be consolidated and tried as one. To a very large extent, the material evidence in both causes was necessarily the same. Furthermore, the evidence indicates strongly that both appellant and appellees intended that the account sued on and appellant's claim for services as attorney for the estate during both executorships should offset each other so far as they would. Where there are several actions between the same parties, the subject-matter being the same in each, requiring substantially the same general character of evidence in each, the court, to save time and expense, is authorized to consolidate the actions, and try them as one cause; and whether such a consolidation shall take place rests in the sound discretion of the court, which discretion will not be interfered with on appeal, unless it is abused. Planters' Oil Mill v. Yazoo M.V.R. Co., 153 Miss. 713, 121 So. 138; Columbus G.R. Co. v. Mississippi Clinic, 152 Miss. 869, 120 So. 187.
Was the sworn, itemized account against appellant in favor of W.T. Fountain, Incorporated, which was the basis of the circuit court cause, properly admitted in evidence, and appellant's liability therefor established by the evidence, as held by the court? Over the appellant's objection, the court admitted in evidence the account, which as stated, was charged on the books of W.F. Fountain, Incorporated, to appellant's wife, and not to appellant. Appellant's contention is that the affidavit to the account did not comply with section 1978, Code of 1906 (section 1710, Hemingway's Code of 1927). That part of the affidavit to the account in question is in this language: "Affiant says further that the foregoing account in favor of W.T. Fountain, Incorporated, against S.L. Gwin, and charged to Mrs. S.L. Gwin, to which this affidavit is affixed, is true and correct as therein stated, and is now past due and unpaid and owing by the said S.L. Gwin to the said W.T. Fountain, Incorporated." The statute provides as follows:
"A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account, and that it is due from the party against whom it is charged; and in any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due; but this shall not apply to accounts against decedents and suits against executors or administrators. A defendant desiring to use an open account as a set-off shall be entitled to the benefit of this section."
The object of the statute was to dispense with proof of the correctness of the items of the account when sworn to, unless the defendant should deny their correctness by means of a counter-affidavit. The statute prescribes a rule of evidence. Where the account sued on is properly sworn to, proof of the correctness of the items of the account is dispensed with, unless there is a counter affidavit by the defendant, denying the genuineness of the items in whole or in part. Reinhardt v. Carter, 49 Miss. 315; Bower v. Henshaw, 53 Miss. 345; 1 C.J. 666, par. 197. The statute does not alter the law of pleading, and the defendant, without a counter affidavit, is entitled to contest his liability, notwithstanding the account be sworn to. Reinhardt v. Carter, supra; Aaron v. Podesta, 60 Miss. 82; Gulf S.I.R. Co. v. Kelly, 131 Miss. 133, 95 So. 931. We think the statute was substantially complied with, and that the evidence in the case was ample to justify the court in finding that appellant was liable for the account.
We do not pass on the question of whether the court erred in refusing to allow appellant to file a counter affidavit, denying the items of the account in whole or in part, because, under the view we take, the decree appealed from is to be reversed in part, and the cause remanded for trial of issues later to be pointed out in this opinion.
Appellant made his answer a cross-bill, setting out the services he had rendered the estate of W.T. Fountain, Sr., during both executorships; and prayed the court, in the event the court should hold that the decree allowing appellant the twenty-five thousand dollar attorney's fee to be void, that appellant be allowed a reasonable fee for his services to the estate. On the trial the court, being of the view that the decree was void on its face for the reasons already stated, for the same reasons excluded all evidence offered by appellant to show the value of his services as attorney for both executors. This was error, for the reasons already stated in this opinion.
Appellant assigns and argues as error the action of the court in striking from the files his plea of the statute of limitations to the account sued on. We do not pass on this question, in view of the fact that the cause is to be remanded, and another trial is to be had.
The result of the views we have expressed leads to the affirmance of the decree appealed from, insofar as it holds that the decree allowing appellant the attorney's fee of twenty-five thousand dollars was void; and insofar as it holds appellant liable for the correct items of the sworn account for thirty-five thousand eight hundred three dollars and sixty-four cents and interest thereon.
The decree appealed from is reversed because of the error of the court in excluding the evidence offered by appellant showing the value of his legal services to the estate during the administration of both executors. And this means that the decree, insofar as it allowed appellant an attorney's fee of five thousand nine hundred forty-five dollars and seventy-seven cents for his services during the executorship of W.M. Fountain, is also set aside. But on another trial appellant should be permitted, if he so desires, to plead any appropriate statute of limitations to the itemized, sworn account, and also to file a counter affidavit, denying the genuineness of any part of the items of the account. But he should not be permitted to deny his liability for whatever items of the account are correct and genuine — that is, whatever items of the account were bought by himself or any member of his family, and charged to his wife, and remain unpaid for; for the question of liability was decided against appellant by the trial court on ample evidence.
And on another trial likewise, appellees, if they so desire, should be permitted to plead any appropriate statute of limitations to the claim of appellant for his legal services to the estate during both executorships. And any other subsidiary and pertinent issues to those mentioned are left open for another trial.
The other assignments of error argued raise questions which, in the nature of the case, in all probability will not arise on another trial; and, furthermore, they are questions not of sufficient gravity to call for a discussion by the court.
We find no other substantial errors in the decree than those we have noted.
The costs of this appeal are equally divided between the parties.
Reversed in part and affirmed in part.
ON SUGGESTION OF ERROR.
After a protracted consideration of the suggestion of error, we have reached the conclusion that we were in error in holding, in the former opinion ( 126 So. 18), that the proof offered by the appellant on the question of notice to, and knowledge of, Fountain, as to the amount of the fee claimed, and knowledge of the allowance of the fee at the time it was allowed, and the proof of the reasonableness of the fee so allowed, were insufficient, if believed to be true, to sustain the allowance of the fee in the former decree rendered. The conflict in the evidence should be decided by the chancellor.
We should not have decided that part of the controversy, but should have remanded it to the court below, with directions to admit the evidence and decide the issues of fact. This court is only a court of appellate jurisdiction, and cannot decide issues of fact which have been pretermitted by the court below, or decide issues of fact by considering evidence which was excluded by the lower court in deciding the issues of fact. See Planters' Ins. Co. v. Cramer, 47 Miss. 200; Gray v. Bryson, 87 Miss. 304, 39 So. 694; Thompson v. First Nat. Bank, 84 Miss. 54, 36 So. 65; The Y. V.R.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469, 122 Am. St. Rep. 321; Peirce v. Halsell, 90 Miss. 171, 43 So. 83; Edwards v. Kingston Lbr. Co., 92 Miss. 598, 46 So. 69; I.C.R.R. Co. v. Dodd, 105 Miss. 23, 61 So. 743, 49 L.R.A. (N.S.) 565; Edmunds v. Mister, 58 Miss. 765.
The suggestion of error is sustained to the extent indicated in the foregoing.