Arthur v. Arthur

354 P.2d 199

• Court: Supreme Court of Oklahoma
• Decided: August 2, 1960
• Docket: 36632
• Status: Published

Opinions

JOHNSON, Justice.

This is the second appeal ’ from the District Court of Canadian County in this case. ' The first appeal was Arthur v. Arthur, Okl., 258 P.2d 1191. The action was commenced by Ira W. Arthur and Lizzie Kaler, co-executors of the estate of J.- E. Shirk, deceased, against Virgil M. Shaw as guardian of the person and estate of Cassie Vance, an incompetent person (who before her incompe'tency was a co-executrix of the Shirk estate), Charles S. Arthur and Anna Pearson Arthur, his wife, for an accounting of. the 'money and property belonging to the Shirk estate. Therein after the issues in the action for 'accounting were completed, the trial court ordered an accounting of the estate of J. E. Shirk, deceased. Charles S. Arthur and his wife appealed to this court from this order, and the plaintiffs (defendants in error) filed a motion to dismiss on the ground that the order was riot a final order and that the errors complained of could not be presented to this court until there had been a final determination on the merits in the trial court. This Court sustained the motion and held that the order for an accounting was an interlocutory order and was not appealable and dismissed the appeal.

The record in this second appeal, which is from a judgment on the merits of the case, discloses that the original action was for an accounting as hereinbefore noted, and was brought by Ira W. Arthur, administrator of the J. E. Shirk estate with the will annexed, and Lizzie Kaler, executrix of the estate of J. E. Shirk, deceased, against Charles S. Arthur and his wife, Anna Pearson Arthur, and Virgil M. Shaw, guardian of the estate of Cassie M. Vance, an incompetent, who before her incompetency was judicially established was a co-executrix of the Shirk estate; that upon the death of Cassie M. Vance, Virgil M. Shaw was appointed as executor of her estate and upon motion of the plaintiffs the action was revived against Virgil M. Shaw as executor of the estate of Cassie M. Vance, deceased. Virgil M. Shaw, as executor of the Cassie M. Vance estate, filed a cross-petition against Charles S. Arthur and Anna Pearson Arthur for ah accounting of the money and property belonging to the Cassie M. Vance estate. Judgment- was rendered for the plaintiffs (the Shirk estate) against the -Cassie M. Vance estate and also judgment was rendered in favor of Virgil M. Shaw, executor of. the estate of Cassie M. Vance, deceased, on his cross-petition for an' accounting to the Cassie.M. Vance estate against Charles S. Arthur and Anna Pearson Arthur. . All parties appealed, > but upon stipulation and agreement and by order of this Court, over the objections of Charles S. Arthur, the cross-appeals of the Shirk and Vance estates were dismissed.

The plaintiffs, that is, the representatives of the Shirk estate, supra, and the representative of the Vance estate,'supra) contend that • since the dismissals, of Vtheir cross-appeals by this' Court upon "their stipulation and the! further order of this Court' denying the defendant, Charles S. Arthur, ■ leave to be substituted for the cross-petitioner,' executor of the Vance esr tate, in' his.appeal from the judgment rendered .against, the Vance estate,- that that judgment is now final and the error thereof' . .cannot be . urged • by the defendant Charles S. Arthur.

The order of dismissal, omitting the caption, provided:

“Order

“In accordance’ with a’ stipulation ■filed herein on the 15th day of November, 1954, and to" the end that the judgment of the District Court of Canadian County, Oklahoma, in cause JSTo. 15760' shall become final as between Ira W. Arthur and Lizzie Kaler, co-executors of the estate of J. E. Shirk, deceased, on the one hand, and Virgil’ M.’ Shaw, executor' of the estate' of Cassie Vance, deceased, An) the other hand, it is ordered:

“1. That the • cross-petition in er-. ror of Virgil M. Shaw, executor of the estate of Cassie. Vance, deceased, . is dismissed insofar as it seeks relief .against Ira W. Arthur, and Lizzie, Kaler, co-executors of the estate of J. E. Shirk, deceased, and. the. estate of J. E. Shirk, deceased. .-

“2. That . the dismissal of ■ said cross-petition in error as aforesaid shall not preclude the said Virgil M. Shaw, executor of the estate of Cassie Vance, deceased, from prosecuting his cross-petition in error as against Charles S. Arthur and Anna Pearson Arthur, and as against A. K. Little and L. D.. Hoyt, attorneys for Charles S. Arthur and Anna Pearson Arthur.

'“3.’ That the cross-petition in error filed herein by Ira W. Arthur, admin-with the will annexed, and Lizzie Kaler, executrix of the estate of J.- - E. Shirk,, deceased (said Ira W. Arthur and. Lizzie Kaler being at ■all. times. ..hereinbefore' and herein-.after referred to as co-executors or. executors, of the estate of J.-E. Shirk, deceased) as against Virgil M. Shaw, executor of the estate of Cassie Varice, deceased, be. .and the same hereby is dismissed. ■ ,

: “4. The Clerk’ is directed to certify ■ such dismissals to the . Clerk of the District Court of Canadian County, Oklahoma..- ...:

“Done By the Court in Conference .November 15, 1954.

“/s/ Harry L. S. Halley

"Chief Justice”'

The foregoing order ánd judgment 'contains rid ' provision or ' exception permitting Charles S. Arthur to prósécüte ah appeal personally, as an heir, remainder-man or otherwise, from the judgment rendered -against the estate of Cassie M. Vance, deceased, in the District Court of Canadian County, Oklahoma.- Charles S. Arthur, filed an application and motion in this case, wherein' he asked, this. Court to vacate the order of dismissal so that he would be permitted to carry on the appeal for the .Vance estate, or, in the alternative if he could not do .that, he then urged that he be permitted to carry on the appeal as an heir, devisee or re-mainderman of the .Vance estate or of the Shirk estate. In his objections to the dismissal he left nothing out. He presented, urged, briefed and orally arguéd every conceivable theory that would per-niit him to carry on the whole or any part of the controversy that .had been settled by the order of. dismissal. There was before this Court Charles S. Arthur’s Motion to- Vacate the Order of Dismissal, the response of- the executor of the Vance estate, the response of the executors of the .Shirk estate, Charles S.. Arthur’s reply thereto, the rejoinder to such reply by the executors of the Shirk estate, and all of the briefs filed in connection therewith, raised and presented to this Court every possible theory by which Charles S. Arthur as an heir, devisee, remainderman or otherwise, might carry on the appeal and avoid the effect of the order dismissing the appeals. These issues were presented to this court by brief and oral argument by the attorneys of all the parties, after which we denied Charles S. Arthur’s application, objections and contentions without exception; and such denial became the law of the case. Wilson-Harris v. Southwest Telephone Co., 193 Okl. 194, 141 P.2d 986, 148 A.L.R. 1337; 50 C.J.S. Judgments § 712 c, page 181; Parnacher v. Mount, Okl., 306 P.2d 302; Dean v. Jelsma, Okl., 316 P.2d 599.

Charles S. Arthur in his application to vacate the order of dismissal stated:

“Comes now the plaintiff in error, Charles S. Arthur, and moves the court to vacate and set aside the order entered by this court herein on November 15, 1954, and filed in the office of the clerk of this court on November 17, 1954, insofar as it dismissed the cross-petition in error of Virgil M. Shaw, executor of the estate of Cassie Vance, deceased, against Ira W. Arthur and Lizzie Kaler, co-executors of the estate of J. E. Shirk, deceased, and the estate of J. E. Shirk, deceased, and further moves the court to substitute this plaintiff in error for the said Virgil M. Shaw as such executor as cross-petitioner in error.”

In his reply to the response of the defendants in error (the representatives of the Shirk and Vance estates) to his application to vacate the order of dismissal, he said:

“If the dismissal of Shirk’s appeal is permitted to stand then the judgment recovered by the executrices becomes final and the farms that the court gave to the executrices can be sold and the fee allowed to the attorneys for the executrices will be paid.”

Thus, it is clearly demonstrated that there can be no doubt about what the issues were at the time the order was made denying Charles S. Arthur’s application and motion to vacate the dismissal order. That order notwithstanding, the issues as shown by the record simply denied the application to vacate the order of dismissal, leaving only the appeal of Charles S. Arthur and Anna ‘Pearson Arthur from the judgment of the Vance estate against them; therefore, we shall confine our decision to the issues between them.

Insofar as pertinent to those issues, the record discloses that in 1944 Mrs. Vance-had become and was physically unable to manage and attend to her business affairs. She requested her nephew, Charles S. Arthur, to come to her home in Canadian County, Oklahoma, and help her manage her property and business affairs. He did so and took charge of all her property which included bank accounts, bonds, mortgages, real property, rentals, etc. .

Shortly thereafter in 1944 Charles S. Arthur with the assistance of his brother, Ira W. Arthur, and his sister, Mrs. Edna Preston, nee Arthur, made an inventory of all the assets of Mrs. Vance. This is undisputed.

Charles S. Arthur continued to manage Mrs. Vance’s business affairs from the time he took charge of the estate in 1944 until in 1951 when she was adjudged incompetent by the Canadian County Court to handle her business affairs, and Virgil Shaw was appointed her guardian. As Mrs. Vance’s guardian, Shaw filed a cross-petition in the action against Charles S. Arthur, defendant, for an accounting and report of his handling of the assets of Mrs. Vance from 1944 up until the time the cross-petition for accounting was-filed.

The trial court ordered him to make the accounting as requested. Shaw acted 'for the estate first as guardian, then upon the death of Mrs. Vance and reviver of the action, as executor of the Vance estate. The trial resulted in a money judgment against Charles S. Arthur for the sum of $61,797.40 and judgment quieting title to a tract of land located in Lincoln County, Oklahoma, which was admittedly purchased in the name of Mrs. Anna Pearson Arthur, the wife of Charles S. Arthur, with funds from an account of Mrs. Vance.

The court allowed Little and Hoyt, attorneys for Charles S. Arthur and Anna Pearson Arthur, an attorneys fee of $4,-000 for defending' them against the claims of the Vance estate payable from the Vance estate. Also an attorneys fee of $7,500 was allowed Shaw as executor of the Vance estate, who acted as his attorney in presenting the claims of his cross-petition against Charles S. Arthur and his wife, Anna Pearson Arthur, to be paid from the funds of the Vance estate.

The defendant, Charles S. Arthur, asserts that the cross-petition was not germane to the plaintiffs’ cause of action and that the court erred in refusing to strike this pleading. . The contention is not well taken. The property handled by the defendant as the agent of Cassie Vance was the subject matter of the litigation. All the co-defendant asked of him was to account for his actions in respect to that property. This was the very cause of action alleged in the petition. An accounting by the defendant to the cross-petitioner was essential to an accounting by him to the plaintiff under the allegations of the plaintiffs’ petition, for it was also alleged that the defendant had co-mingled and removed these assets while agent for Cassie Vance and was withholding them.

The demurrer of the defendant to the cross-petition also was properly overruled. The cross-petition substantially alleged that there was a confidential relationship between the defendant and Cassie Vance and that the defendant had control of her property and all the records thereof; that there has been a demand for an accounting of the property delivered to him, but that he had failed to account for all this property or surrender possession thereof; that many thousands of dollars belonging to the executor of Cassie Vance was in the pos-' session of the defendant and the cross-petitioner had no adequate remedy at law. Field v. Spencer, 176 Okl. 57, 54 P.2d 146. Defendant’s argument on this proposition was more pertinent to the sufficiency of the evidence on the accounting than to the sufficiency of the allegations of the pleading.

It is contended that the court erred-in failing to state the items account specifically. But, there is no error in this regard which we can review since the defendant did not make a timely request for findings of fact. At no time prior to judgment did the defendant request such action. No exceptions were taken at judgment or in the motion for new trial to the absence of special findings of fact. The defendant’s motion for addenda to the judgment presented the request too late. Section 611, 12 O.S.1951. In the case of State ex rel. Smith v. District Court of Osage County, 18S Okl. 663, 112 P.2d 381, relied upon by the defendant, a timely request for findings of fact was made and this court expressly stated that it meant no departure from the general rule.

It 'is likewise asserted that the judgment in favor of the cross-petitioner and against the defendant is against the clear weight of the evidence. No extended argument is advanced to show that the order to account was unjustified, and indeed none could be, for there was ample evidence to show the necessity of an accounting. It was evident that the defendant was agent for Cassie Vance and occupied a position of trust in relation to her money and farms for a long period of time during which he had almost exclusive control of her business. It also appeared that he had failed to account to the guardian for the property over which he had exercised control and that large sums of money were not turned over to the guardian which had come into his possession. All the records of his handling of this property were in the •defendant’s possession. The order to account was proper. Field v. Spencer, supra.

After the order to account was ren•dered, the plaintiffs and cross-petitioner employed a C.P.A. to whom part of the records in the possession of the defendant were given and from which he established a basis of accountability on the part of the •defendant of some $98,400.96 by using the September, 1944, tabulation of assets as a basis. Defendant claims the taking of these records from him by subpoena was error. There is no merit to this contention for there was no suggestion that the records would tend to incriminate him. Thereafter, the defendant voluntarily produced more records and employed the same accountant to make an additional audit which resulted in a reduction in the amount for which the defendant was accountable. The first audit was introduced as Plaintiff’s Exhibit 17, and the second one as Defendant’s Exhibit “M”. During the trial the court stated that he considered •that these two exhibits “actually constitute” the defendant’s accounting. (There was no reference of this matter for an accounting and report to the court.) The trial on the account consisted of an item by item examination of the first audit. During this procedure many items were agreed to by the parties as being valid • credits to the defendant. A comparison of these items to the additional credits allowed the defendant in the second audit discloses that not áll items agreed to by the litigants were allowed by the accountant. At best we can determine (the accountant did not follow the same procedure in both audits) items totaling $3,688.08 were agreed to as valid credits but not allowed the defendant by Exhibit “M”. The second audit allowed •the defendant additional credits of $16,-007.26 on schedule 2, and $11,626.07 on schedule 3 of Exhibit 17, and these items should have been granted the defendant by the court for no exception was taken to them by the cross-petitioner. In addition, it developed that Lizzie Kaler had received some $9,086.32 from the defendant for which he was not given credit, and other specific items of $33, $100, $400, $685 and $12.24 were agreed upon as proper credits but not allowed in either audit. Taking into consideration the amount of the total accountability determined by Exhibit 17 less the credits in Exhibit “M”, as diminished by the specific credits due the defendant and not allowed by these exhibits, the judgment for $61,797.40 appears to be excessive by $5,034.41. The defendant insists that he also should be allowed credit for money spent in purchasing a farm for his wife, as a gift from Mrs. Vance, but this item was presented to the trial court and not allowed. Likewise, the items of the account claimed as legitimate expenditures but not allowed by the court as proper charges cannot be allowed here inasmuch as it was for the defendant to justify the expenditure. The charge of these items cannot be said to be against the clear weight of the evidence. Simper v. Scorup, 78 Utah 71, 1 P.2d 941. Neither is the defendant entitled to a claimed credit for compensation while living with Mrs. Vance, for he did not plead nor prove an agreement for compensation'nor did he present the issue as a written counter-claim or setoff to his liability to her estate.

The cross-petitioner and the defendant both maintain that the awarding of attorney fees to the opposite party was erroneous. The award to Virgil Shaw as attorney for himself as executor of the Cassie Vance estate was not presented by the defendant’s motion for new .trial nor in his petition in error, and is therefore waived. It will be for the" defendant to present the matter of compensation of the executor to the county court at the proper time. The award of a fee from the Vance estate to the attorneys for the defendant is properly presented by .this appeal.

It is clear from the record that the attorney acting for the Cassie Vance estate, who was also executor, did not take an active part in representing the Cassie Vance estate, and this is further indicated by his own testimony, wherein he admitted that the work of the attorneys for Charles S. Arthur had helped some in protecting the assets of the said estate, but as to how much he would have to leave that to the court, and apparently the trial court taking into consideration this testimony, together with its own observation, concluded that said estate was benefited by said services and that a fee should be allowed to the attorneys, who, although appearing of record for Charles S. Arthur, one of the devisees and remaindermen of the Vance estate, did actually render legal services which were of benefit to the Vance estate. This would naturally benefit other devisees and remain-dermen of said estate; therefore, we are of the opinion and so hold that it was not error for the trial court to award the fee as a charge against the estate of Cassie Vance. Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726.

■ The judgment of $61,797.40 in favor of the cross-petitioner is affirmed on condition of a remittitur of $5,034.41. The judgment awarding Little and Hoyt attorney fees as a charge against the estate of Cassie Vance is also affirmed.

DAVISON, C. J., WILLIAMS, V. C. J., and WELCH and JACKSON, JJ., concur. HALLEY, BLACKBIRD and IRWIN, JJ., dissent.