Summary
reversing award of a guardian ad litem fee
Summary of this case from Keen v. Wolfe (In re Estate of Keen)Opinion
Nos. 27889, 27890.
May 15, 1951. Motion for Rehearing, for Modification or for Transfer to Supreme Court Denied June 13, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JAMES F. NANGLE, J.
"Not to be reported in State Reports."
Walther, Hecker, Walther Barnard, William J. O'Herin, St. Louis, for Walter L. Ross, intervenor-appellant.
J. L. London, St. Louis, for appellant Tracy.
Forrest M. Hemker, Willson, Cunningham McClellan, St. Louis, for respondent.
This is an appeal from a judgment of the circuit court (a) allowing Richard D. Gunn a fee of $1,800 for services performed as guardian ad litem for Elizabeth Martin, a minor, in the defense of an equity suit to cancel a trust indenture and quiet title to real estate and (b) charging the estate of Elizabeth S. Delany, non compos mentis, with the payment thereof. The facts which gave rise to the litigation are fully reviewed in the opinion of Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926, and need not be repeated here.
Plaintiff Edwin F. Tracy and intervenor Walter L. Roos, guardian of the person and estate of Elizabeth S. Delany, appeal on this offshoot of that litigation on two grounds: (1) that the circuit court erred in charging the allowance against the estate of Elizabeth S. Delany, and (2) that the allowance is excessive.
A guardian ad litem is entitled to an allowance for his services in representing a minor defendant. Walton v. Yore, 58 Mo.App. 562; Jones v. Yore, 142 Mo. 38, 43 S.W. 384. If the infant has an estate the guardian ad litem may be compensated from this source, because such representation is a necessary. Nagel v. Schilling, 14 Mo.App. 576. If no estate exists the amount of the allowance should be fixed by the court which appointed him, and in certain instances assessed as costs in the case.
If the services were rendered in a suit at law the allowance may be taxed as costs only against the unsuccessful litigants because of R.S.Mo. 1949, § 514.060, which provides: "In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law."
If the services were rendered in a suit in equity the court may assess and tax guardian ad litem fees in its sound discretion, even against successful parties litigant in certain circumstances. This discretion, however, may not be arbitrary or capricious but must be a legal discretion guided by sound equitable principles considered in the light of each particular case. Even in equity cases the general rule is that the prevailing party is entitled to his costs, and in order to depart from the general rule the circumstances must reveal some justification in equity and good conscience, otherwise there is manifest abuse of discretion. Oldham v. McKay, 235 Mo.App. 348, 138 S.W.2d 735. The court's discretion, both in fixing the amount of the allowance and in determining which of the parties litigant shall be required to pay the allowance, will not be disturbed unless it has been abused. Holy Ghost Ass'n v. Fehlig, 72 Mo.App. 473; Oldham v. McKay, supra.
Appellants argue that Walter L. Roos, guardian of the person and estate of Elizabeth S. Delany, was a successful party in this litigation; that consequently the trial court had no authority to tax the allowance as costs against the estate, and that to compel the estate to pay for legal services rendered in behalf of a person who has wrongfully attempted to establish an interest therein is contrary to all principles of equitable relief, and dangerous.
Respondent takes the position that the appointment of a guardian ad litem for an indispensable infant defendant is a mandatory requirement to a valid judgment; that the statutes allowing the prevailing party to recover his costs do not apply in equity suits; that it was the duty of the guardian ad litem diligently to represent his infant ward in court, and that where there is a fund in court, as here, and the infant has no estate, the court which appoints the guardian ad litem may charge the allowance against the fund.
Often in equity cases in which there is a fund or estate in the custody of the court, the officers of the court, including guardians ad litem and attorneys at law, are paid out of the fund for their services in the litigation. Respondent lays heavy emphasis upon the fact that there is an estate in court, claiming in his brief that "when there is no other source from which the court can compensate an indispensable guardian ad litem who is acting as an officer of the court pursuant to the court's appointment, * * * it is a necessary and proper exercise of equitable jurisdiction to require that the guardian ad litem be paid out of the fund in the court's custody irrespective of whether the infant's interest was antagonistic and irrespective of whether the infant was a prevailing party or not."
The mere existence of a fund, however, does not in and of itself authorize resort thereto to defray costs and expenses of litigation. The facts and circumstances of each case must be considered in determining whether the fund must be made to respond to the claims of a guardian ad litem or any other court officer. Examples: (1) a guardian ad litem will be denied compensation out of the fund (a) if he has enjoyed a substantial recovery in the course of the litigation. In such case he should pay for the services of the guardian ad litem out of his recovery. St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578. (b) Where the interest of the ward in the fund was purely contingent. Drake v. Crane, 66 Mo.App. 495.
An attorney will be denied compensation out of the fund (a) where the purpose of the suit is to destroy the estate. Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104. In the Sandusky case, in a suit against a testator's heirs to determine rights under the will, the heirs made no claim under the will, or in harmony with it, but claimed that certain charitable bequests therein were invalid, and that they were entitled to the property which was the subject matter of the bequests. In denying the heirs their counsel fees out of the fund the court said, 177 S.W. loc. cit. 395: "There is no equity in requiring the trust fund to remunerate those whose sole claim to consideration is the fact that they endeavored to destroy that fund." In the Trautz case the administrator pendente lite contended that the trust was void as against the rule against perpetuities. He was denied attorneys' fees out of the fund, in this language, 72 S.W.2d loc. cit. 108:
"* * * the trust estate would not have received any benefit, in fact, the trust estate would have been destroyed (by the action of the attorneys). * * *
"We hold that the position of the administrator pendente lite * * * was antagonistic to that of the trust and the trial court erred in sustaining the administrators' motion for attorneys to be paid out of the trust fund." (Parentheses ours.)
Where the efforts of counsel are not for the benefit of the estate as a whole, but are exerted solely for the selfish benefit of the party litigant. St. Louis Union Trust Co. v. Kaltenbach, supra; Trautz v. Lemp, supra; Scullin v. Mercantile-Commerce Bank Trust Co., Mo.Sup., 234 S.W.2d 597, loc. cit. 604; In re Thomasson's Estate, 350 Mo. 1157, 171 S.W.2d 553. In the Kaltenbach case the court said, 186 S.W.2d loc. cit. 583: "* * * in some states, attorney's fees are also allowed for all defendants in such suits. We do not authorize such allowances to defendants except where their efforts resulted in real benefit to the estate. (Citing cases.) Here each defendant was contending for a construction under which he could obtain the whole estate for himself. Their contentions were solely for their own benefit and they are not entitled to any allowance out of the estate for merely seeking to benefit themselves."
Where the plaintiff for whom counsel sought to effectuate a trust had no equity to move for its execution. Women's Christian Ass'n v. Campbell, 147 Mo. 103, 48 S.W. 960.
There is no difference in principle between the claims of attorneys for adult parties who ask for fees after having sought to destroy a fund or estate and the claim of a guardian ad litem for an infant party for an allowance where his object has been the same. The claims of both should be denied.
In order to justify the allowance of the fee of a guardian ad litem who was unsuccessful in the litigation against the estate of the successful party to the litigation, his efforts must have promoted the interests of those eventually found to be entitled to the fund. See 20 C.J.S., Costs, § 123, p. 362.
The theory upon which courts invade the corpus of a fund or estate which has been drawn into the orbit of its adjudicatory powers for the compensation of its officers is that of benefit and burden — that the court officer through whose efforts an estate or fund has been benefited or preserved, or who has promoted the interests of the owner thereof, should be compensated for his services out of the estate or fund. In other words, where the services rendered are beneficial to the entire estate or fund, the entire estate should share in the burden of the costs. On the other hand, where the services rendered are for the benefit of one or more, but not all, of the beneficiaries of the estate, the ones benefited must stand the expense.
Applying these principles to the case at bar, we firmly are of the opinion that the trial court fell into error in charging the allowance of the guardian ad litem against the estate.
The intervenor-guardian was a prevailing, successful party to this litigation. The minor, Elizabeth Martin, was an unsuccessful party litigant. The efforts of her guardian ad litem solely were in aid of the establishment of her interests, which were contingent upon the sustaining of the trust. None of his efforts benefited or promoted the interests of Elizabeth S. Delany. All of his efforts were antagonistic to her claims. The Supreme Court in Tracy v. Sluggett, supra, affirmed the action of the trial court in annulling, invalidating and setting aside the trust indenture under which the minor's claims arose, thereby settling the fact that the litigation was not beneficial to the interests of Elizabeth S. Delany or for the protection or preservation of her estate. No matter how skillful and competent he may have been in the conduct of the litigation, or how devoted he was to the interests of Elizabeth Martin, the guardian ad litem cannot be paid from the property and estate of Mrs. Delany. To tax the estate with this allowance would violate the rule that a guardian ad litem to participate in a fund must have attempted to promote the best interests of the rightful owner of the fund; that his efforts must have been designed to result in real benefit to the estate; that the costs of litigation should not be assessed against the successful party; that where the efforts of the guardian ad litem are antagonistic to the estate he shall look elsewhere for his compensation; that where the efforts of the guardian ad litem are directed solely to the promotion of individual interests, those interests must sustain the expense; that guardian ad litem fees will not be ordered paid out of a fund where the interest of the infant in the fund was purely contingent.
Respondent argues, however, that the estate was benefited by the appointment of the guardian ad litem on this basis; that it was proper to join Elizabeth Martin, who had a remainder interest under the trust as a necessary party without whose presence the court could not have adjudicated the issues; that under R.S.Mo. 1949, § 507.190, a suit against an infant defendant served with process cannot be "prosecuted any further until a guardian for such infant be appointed"; that title to the property of Elizabeth S. Delany could not have been quieted and cleared and that a valid judgment impeaching the trust and restoring the property to the guardian of Mrs. Delany could not have been obtained without the appointment of the guardian ad litem; that as an indispensable officer his representation of Elizabeth Martin was a benefit to the estate of Mrs. Delany. In support of this theory respondent quotes this language from St. Louis Union Trust Co. v. Kaltenbach, supra, 186 S.W.2d loc. cit. 583: "However, it is urged on behalf of the minor defendant that an allowance should be made for him because the appointment of a guardian ad litem was absolutely necessary to the disposition of the case. See 897, R.S. 1939, Mo.R.S.A. This is true, and we do not doubt the authority of the court to make such an allowance, out of the estate, in case there are no other funds to pay the expense necessarily incurred by his guardian ad litem." We do not believe that the Supreme Court thereby intended to lay down a universal rule that in all cases involving a fund and a guardian ad litem, the latter may be paid from the fund. In fact the guardian ad litem was denied compensation out of the fund in that very case.
Whether the appointment was beneficial to the estate depends not upon whether as a procedural matter the presence of a guardian ad litem was required (in which event the services of all guardians ad litem in all cases ipso facto would be beneficial) but depends upon the nature, character and effect of the acts of the guardian ad litem performed in the discharge of his official duties.
Respondent cites two cases in which approval was given to the assessment of the costs of the representative of an unsuccessful infant litigant against the successful litigant, Supreme Council Legion of Honor v. Nidelet, 85 Mo.App. 283, and Eves v. Sovereign Camp, W.O.W., 153 Mo.App. 247, 133 S.W. 657. In the Nidelet case there were equitable considerations which appealed to the court and which justified the court in thus assessing the costs in the exercise of a sound discretion, namely, the fact that the curator acted in good faith for the protection of his ward in prosecuting what he believed to be a meritorious claim and circumstances of hardship which were found to exist. We are unable to distinguish the Eves case and insofar as it holds that the fee of an unsuccessful guardian ad litem arbitrarily may be ordered paid out of a fund in court at the expense of the successful claimant to the fund, where no special reason in equity and good conscience exists to justify such action, that decision specifically is overruled.
In view of this holding it is unnecessary to pass upon the claim of the appellants that the amount of the award is excessive.
The judgment of the trial court of July 1, 1949 allowing Richard D. Gunn, guardian ad litem of defendant Elizabeth Martin, a minor, the sum of $1,800 for his services as guardian ad litem, and modifying paragraph 22 of the decree of May 6, 1949 and charging the allowance against the estate of Elizabeth S. Delany, non compos mentis, should be reversed and the cause remanded to the trial court with directions to tax the allowance to the guardian ad litem according to law, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the Court.
The judgment of the trial court is, accordingly, reversed and the cause remanded with directions.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.