Torbert v. Smith's Estate

¶1 I concur with Mr. Justice McDonald in holding that the testimony establishes the “agreement as claimed by the plaintiffs;” but I am also of the opinion it necessarily follows that plaintiffs should recover their full compensation from Mrs. Smith instead of one-half of it. This is the only fair conclusion that can be drawn from the declarations of Mrs. Smith quoted in Mr. Justice McDonald’s opinion. In making her final bargain for plaintiffs’ services Mrs. Smith said to one'of them: “I think if I pay you 40 per cent., Mr. Torbert, it would be plenty.” Her proposition was accepted by plaintiffs. One-half of the income tax to be paid to the government was a direct obligation of and charged against Mrs. Smith; the other half was against Mr. Smith’s estate, of which Mrs. Smith was the sole beneficiary. Mr. Smith had died before Mrs. Smith made her contract with plaintiffs. Subject to payment of debts and expenses of administration, she was then the sole beneficial owner of the property that constituted Mr. Smith’s estate, although technically title to the personalty had not yet vested in her. Plaintiffs effected a saving of $16,231.24, all of which inured directly to Mrs. Smith’s benefit. Under such circumstances, she could and did bind herself to pay the whole charge for plaintiffs’ services. - There was ample consideration for this agreement on her part. Plaintiffs’ *100 claim against Mrs. Smith’s estate should he allowed for the full amount, $6,492.50, with interest at five per cent, from the date their claim was filed. The circuit court will so order. Costs to appellants.