Parish v. Hedges

Mr. Justice Bobb

delivered the opinion of the Court:

Section 350 of the Code provides that “no executor or ad- ■ ministrator who shall, after the lapse of one year after the date of his letters, have paid away assets to the discharge of just claims, shall be answerable for any claim of which he had no knowledge or notice by an exhibition of the claim, legally authenticated” [31 Stat. at L. 1246, chap. 854], provided that, before distribution, he shall have given legal notice to claimants. Inasmuch as such noticé was given in this case, the important question arises whether said letter to Mr.' Robinson constituted constructive notice to • the executrix, within the meaning of said sec. 350.

It may be stated as a general proposition that, where the relation of attorney and client exists, the law of principal and agent generally applies, and that the client is bound by the acts of the attorney within the scope of his authority. But it by no means follows that, because the attorney is engaged in a particular suit, that notice to him in reference to a cause or proceeding with which he has nothing to' do, and over which he has no authority or control, constitutes notice to his client. On the contrary, notice to the attorney is notice to the client only when the notice is a part of the particular case in which the relation exists. Pacific Mfg. Co. v. Brown, 8 Wash; 352, 36 Pac. 273; Atchison, T. & S. F. R. Co. v. Benton, 42 Kan. 698, 22 Pac. 698; Stewart v. Sprague, 71 Mich. 60, 38 N. W. 673. Tested by the rule announced, it is apparent that the letter to counsel engaged in the prosecution of said claim did not constitute notice to their client in reférence to a matter pending in the probate court, and not concerning in any way the subject-matter of their employment. In Mr. Conrad’s letter it is distinctly stated that counsel “have made no investigation of the aifairs of the estate, beyond what we have found to be necessary in the preparation of the particular case placed in our hands.” If this means anything, it means that their authority ended with the prosecution of the particular case intrusted to them. The record in the probate proceeding shows that Mr. Potbury was counsel for the executrix in that proceeding, and there is nothing in this record to justify the assumption of Hedges, that Messrs. Conrad and Robinson, at that time, were authorized to represent the executrix before the probate court.

Thus far we have assumed that, had said letter of Charles Hedges been addressed to counsel authorized to represent executrix in the probate proceeding, it would have constituted notice to the executrix within the meaning of said sec. 350 of the Code. An analysis of said letter in connection with the provisions of said section, we think, leads to a different result. The claim as finally set forth in appellee’s petition is based upon an alleged contract between the decedent, Parish, and appellee, under the terms of which appellee was to receive a stated sum for services and advances in connection with the prosecution of the claim of said Parish against the government. In the letter to Mr. Robinson, Charles Hedges refers to “the claims of my uncle, Henry C. Hedges of Mansfield, Ohio, and myself for considerable sums of money advanced to Mr. Parish to enable him to prosecute his case.” The writer further states that “we hold a contract with Mr. Parish,” etc., and asks to be informed “whether our proven claims against the estate are to be recognized without litigation; if so, I will request my attorney to call upon you.” It is, we think, clear that said letter referred to claims for money advanced by Henry C. and Charles Hedges to the decedent, Parish, and to a contract with said Parish to secure said indebtedness. Such a letter can hardly be held to constitute notice of a claim by Henry Hedges of a different character. Especially is this true in view of the language of the statute requiring that knowledge or notice of a claim to an executor must he “by an exhibition of the claim, legally authenticated.” These words would seem to require a claimant, if he would stay proceedings, to present a legally authenticated claim to the executor. This letter falls far short of a compliance with the statute.

Various other questions have been raised by appellant, but, in view of the conclusion that the executrix had no notice of the existence of appellee’s claim when she settled the estate, it is not necessary to notice them.

The point is made in the brief of appellee that this court is without authority to entertain this appeal and to reverse the action of the court below in vacating its order approving the account of the executrix, for the reason that the action of the justice holding probate court, in vacating such an order, is so within his discretion as to preclude the right of appeal.

Under the law of its creation (act of Feb. 9, 1893, 27 Stat. at L. 434, chap. 74), this court is authorized to .allow an appeal from any interlocutory order of the supreme court of the District, or of any justice thereof, whenever it is made to appear to this court, upon petition, that it will be in the interest of justice to allow such an appeal.

In the present case more than four years intervened between the issuance of letters testamentary and the settlement of the estate. There was compliance with the provisions of the statute. All known claims against the estate were adjusted and the remaining assets distributed. When appellee filed his petition, the order which he sought to nullify had gone into effect,—the distribution had been made. In such a situation the law says the executor shall not be answerable for any new claim unless he had notice of such claim before the settlement of the estate. We have found a lack of such notice in this case; hence, the order setting aside the order of settlement, and requiring appellant to give an additional bond in the sum of $15,000, is sure to work hardship and injustice to her.

Because of his laches, appellee had no legal status before the court, and the order appealed from imposed upon appellant burdens from which the statute exempts her. In allowing an appeal from this order, this court exercised the discretion intrusted to it by statute, and that discretion cannot be questioned here.

In Connor v. Peugh, 18 How. 394, 15 L. ed. 432, cited by appellee, the plaintiff in error, Mrs. Connor, was not a party to the original suit, which was an action of ejectment to recover possession of a lot, Mrs. Connor being the tenant in possession. Judgment by default was entered against the casual ejector and the tenant in possession, and a writ of habere facias possessionem was sued out. On the return day of the writ, counsel for Mrs. Connor moved to set aside the judgment and to quash said writ upon the ground of lack of notice to her. The motion was overruled and her petition dismissed. The court ruled that since no one not a party to the suit can bring a writ of érror, and Mrs. Connor having neglected to have herself made such, she could not have a writ of error to the judgment against the casual ejector. The court then said: “The motion afterwards made to have the judgment set aside, and for leave to intervene, was an application to the sound discretion of the court. To the action of the court on such a motion no appeal lies, nor is it the subject of a bill of exceptions or writ of error.” The difference between that case and this is apparent. There the plaintiff in error sought to set aside a judgment in a suit in which she was not a party. Failing in that, she moved to have the judgment set aside, and for leave to intervene. There is nothing to indicate that, had the motion been granted, the parties would not have been put in statu quo. It was a case where, upon proper showing, the trial court would have been justified in granting the motion. In other words, it was a case for the exercise of discretion by the trial court. In the present case, it appeared from the petition filed by appellee that he had no right to the order prayed for. The court, therefore, had no discretion in the premises.

The order appealed from must be reversed with costs, and the cause remanded for further proceedings not inconsistent with this opinion. - Reversed.