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155 Mo. App. 574

Goodman v. Griffith

Missouri Court of Appeals

Decided February 21, 1911

Missouri Court of Appeals · decided 1911-02-21

— Hon. David H. Eby, Judge. (1) Objectors are not heirs or legatees of G. L. Bralley, deceased. R. S. 1899, sec. 4613, does not apply. (2) Respondent held in trust for the heir and legatees. Byers v. Weeks, 105 Mo. App. 72. (3) Objectors not being legatees under tbe will of George L. Bralley and their interest coming through Emily Bralley, it was the duty of respondent to account for all money and property received by him — not material from whence it comes.

Cited by 4 later decisions — most recently May 1967

4 state decisions

Relies on Gamble v. Gibson · Nichols v. Reyburn

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1911-02-21

View the full empirical analysis of this case →

¶1DISSENTING OPINION.

NORTONI, J.

¶2I do not concur in so much of the opinion as declares it proper for the attorney representing the administrator in the course of administering the estate to institute a suit against the estate for the administrator and that such attorney in no manner represents the estate. My understanding of the law is to the contrary of this proposition. The statutes provide that if an administrator presents a demand against *587the estate in his charge he is to step aside for the interim and the probate court shall appoint an administrator pendente lite to defend for the estate. That was properly done in this case but the attorney who represented the estate and the administrator throughout the course of administration instituted the suit against the estate for the administrator. In my opinion the just principle reflected in the statute as to the administrator standing aside requires the attorney of the estate to do likewise if the circumstances are such that he may not represent the estate in the litigation which ensues from the filing of the claim against it by the regular administrator. It may be the attorney who had formerly represented the estate and the administrator would not be the proper person to defend the estate when a claim was filed against it by the administrator, but at least he should stand aside and not assume a position to employ information which came to him in a confidential capacity while representing the estate in the suit of the administrator against it. The statute, section 101, Revised Statutes 1909, lays upon the administrator the duty of defending the estate in suits institued against it and of course authorizes him to employ counsel to advise and represent him about the administration, who may be compensated out of the estate. It has been expressly decided that counsel so employed by the administrator represent the estate and are to be compensated by it. [Nichols v. Reyburn, 55 Mo. App. 1; Gamble v. Gibson, 59 Mo. 585.] Though the attorney may represent the administrator as well while he is acting for the estate, no one can doubt that he-is the attorney of and for the estate, for the decisions above cited are directly in point on the principle. This being true, he should stand aloof while litigation is in progress between the administrator who, as the agent oí the estate, had employed him and the estate while in charge of an administrator pendente lite unless the circumstances of the case require him to *588defend the interests of the estate at the instance and request of the administrator pendente lite.

¶3The point I desire to emphasize is, that I decline to indorse the proposition that the attorney for the estate may abandon it and institute and prosecute a suit against the estate for the administrator, for this countenances and permits a practice whereby such attorney may employ information obtained by him while enjoying the confidential relation of counselor for the estate to its detriment in the suit he prosecutes for the administrator.

¶4For the reasons stated, I dissent from so much of the opinion as deals with this matter and believe the item of compensation to the attorney should be denied. Aside from this, I concur in the views of the court expressed as to other questions.

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