Brunings v. Townsend

McFARLAND, J.

This is an appeal by defendant, Townsend, from an order refusing to require the respondent Pierce to pay certain money.

The action of Mary Brunings, by her guardian, Wolf,

versus

Huida R. Townsend, was brought to recover from the defendant about $11,500 on deposit in a certain bank in the name of defendant, but alleged to be the property of the plaintiff. In that action W. L. Pierce was the attorney of the plaintiff, and after a trial judgment was rendered on June 8, 1899, that “for

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the

uses and purposes hereinafter specified,” the plaintiff “have and recover from the defendant Huida R. Townsend the sum of eleven thousand four hundred and eighty-six dollars and eleven cents ($11,486.11), being” the money deposited in the name of defendant, as averred in the complaint, with interest, and “that she, the plaintiff, is the owner of the same, subject to the conditions hereinafter set forth.” As to the other parts of the judgment, it is sufficient for the purposes of this present appeal to say that it provides that said Wolf, plaintiff’s guardian, be also appointed her trustee, and have the custody of said money; that as trustee he pay to himself, as guardian, all orders drawn in his latter capacity, not to exceed three hundred dollars in any one year, “and such other and further sums to such persons as the court may direct”; and it is further declared that if, at the death of the plaintiff, “there remains any portion of said money,” the remainder, if any, after payment of the expenses of the "last sickness, funeral expenses, etc., “and other payments, if any, as ordered by the court,” shall belong to the defendant, Townsend; but that if the said defendant shall not survive the plaintiff, then “the said money and deposits shall be the property of the plaintiff absolutely.”

A few days after the entry of the judgment,—on June 13, 1899,—the court made an order in which it is recited that the guardian of the plaintiff Brunings employed the said Pierce as attorney for plaintiff in said action, and agreed with him, subject to the approval of the court, that in case of the recovery of the money sued for, Pierce should receive as compensation for his services as such attorney one third of the amount of the money so recovered; but in case the action was unsuccessful, then he was not to receive any compensation whatever; that $11,480 had been recovered; that it appeared from the testimony of certain named well-known attorneys that the said agreement between the guardian and attorney was a proper, fair, and just one; that the services of his attorney were fully and reasonably worth the said share agreed upon; and after said recitals, it is ordered that said agreement and compensation are approved by the court, and that the guardian draw from the trustee $3,800, and pay the same to the said Pierce. In compliance with said order, the guardian paid the