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Kespohl v. Northern Trust Co.

MARCH 21, 1968.

NANCIE H. KESPOHL, PLAINTIFF,

v.

THE NORTHERN TRUST COMPANY, AS TRUSTEE, ETC., ET AL., DEFENDANTS. PETITION OF MURAL J. WINSTIN TO ENFORCE ATTORNEY'S LIEN AGAINST NANCIE H. KESPOHL, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF JULIUS KESPOHL, THE NORTHERN TRUST COMPANY, TRUSTEE UNDER TRUST CREATED BY JULIUS KESPOHL AND DATED SEPTEMBER 12, 1944, THE STATE STREET BANK AND TRUST CO., EXECUTOR AND TRUSTEE, AND ALBERT S. LONG. MURAL J. WINSTIN, PETITIONER-APPELLEE,

v.

NANCIE H. KESPOHL, RESPONDENT-APPELLANT, MADELEINE, JOHNSON, EXECUTOR OF THE WILL OF ALBERT S. LONG, DECEASED, APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Decree affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 16, 1968.

This is an appeal from a summary judgment allowing the petition of Mural J. Winstin (Petitioner) for the enforcement of an attorney's lien for services rendered under a contingent fee contract made with Nancie H. Kespohl (Respondent). The contract dated June 3, 1955, provided that Winstin and two other attorneys, Elmer S. Leesman and Albert S. Long, both now deceased, were to represent the respondent in proceedings involving the estate of her late husband Julius Kespohl and the validity of a trust created by him. Their fee was contingent upon the successful conclusion of the proceedings and was based on a percentage of the excess over that which she would have otherwise received. Respondent filed an answer to the petition. Her principal defense is that the death of two of the contracting attorneys rendered performance by all three attorneys impossible and that therefore the contract was void.

Julius Kespohl died in October 1953. The greater portion of his property was held in a trust created by him pursuant to an agreement with The Northern Trust Company as trustee. The respondent was named as a beneficiary of the trust, but only to the extent of 6/10ths of 1/40th part thereof, the value of which portion was $4,341.36. The respondent was dissatisfied and procured the legal services of Long and Leesman. They in turn asked the assistance of Winstin. Winstin agreed to assist in the litigation upon condition that the respondent would enter into a definite contingent fee contract. She agreed, and on June 3, 1955, the contract in question was executed by herself and her three attorneys. Under the agreement the attorneys were to prosecute a suit in Cook County to have the trust annulled and set aside as to the respondent. In addition they were to proceed with a claim against the estate in Adams County, Illinois, where the will of Kespohl had been admitted to probate. Respondent agreed to pay her attorneys 45% of the value of any improvement in her share of the trust property effected after June 3, 1955, whether derived from the trust or from the assignment or release of any interest in the trust whether or not resulting from a decree, judgment or order or in compromise or settlement. The contract further provided that if the attorneys were not successful in the proceedings with respect to the trust, but were successful in establishing an interest against the estate in the probate proceedings pending in Adams County, the respondent was to pay them $15,000 at the rate of $1,500 a year. Otherwise they were to receive nothing. In the event of a dispute between the parties as to the amount or any other matter relating to compensation under the contract, it was agreed that the dispute should be determined by the Chief Justice of the Superior Court of Cook County. Such determination was to be final and not appealable.

One of the attorneys, Elmer S. Leesman, died on July 26, 1959, about five years prior to the termination of the proceedings in the Superior Court of Cook County. On April 24, 1964, twelve days prior to the entry of the final order in the suit against the trustee (the litigation then having been pending more than nine years) Long withdrew his appearance as one of the contracting attorneys and entered an appearance as a member of the firm of Yowell, Long, McDonald and Yowell. The change was made without the consent of Winstin, but with the consent of the client.

On May 6, 1964, an order was entered in the Superior Court declaring Nancie Kespohl to be the lawful widow of the testator and nullifying the trust agreement as to her. The court directed the trustee to pay to her one-half of the principal and interest of the trust fund. This increased her share from $4,341.36 to $149,039.46.

Winstin filed a petition with the Chief Justice pursuant to the clause of the contract before mentioned, to determine the compensation due the attorneys. A conference was held for that purpose, at which Long and Winstin agreed to pay Leesman's widow $3,000 in discharge of any claim for services rendered by Leesman prior to his death. While this matter was pending, Long died and about three months after his death the court entered the following order:

"That Nancie H. Kespohl pay to Mural J. Winstin and the Estate of Albert S. Long, deceased, 45% of the value of the improvement in her estate, interest or right derived from said living trust; and that 22 1/2% of the 45% be paid to Winstin and 22 1/2% of the 45% be paid to the estate of Albert S. Long, deceased."

The order further provided that Winstin and Long each pay $1,500 to Leesman's widow. The provisions of the order were not satisfied and thereupon Winstin instituted these proceedings. Summary judgment was entered on the petition for the enforcement of the attorney's lien, and determination of the compensation before set out was reaffirmed by the court. Thereupon this appeal was taken.

The first point to be considered is whether a valid lien was created in favor of the contracting attorneys. The Attorney's Lien Act, Ill Rev Stats, c 13, § 14 (1967) provides as follows:

"Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or agreement, for a reasonable fee, for the services of collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients . . . and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice."

Respondent contends that the contract for a contingent fee did not amount to an equitable assignment of any portion of her interest in the trust fund. Her counsel's theory appears to be that an attorney's lien cannot be perfected unless the underlying contract for services contains language of assignment in favor of the attorney. We do not consider such language to be essential. The attorney's lien is a creature of statute and the Act does not require an assignment of the client's claim as a prerequisite for the attachment of the lien.

The respondent cites Reuben v. Katz, 12 Ill. App.2d 474, 139 N.E.2d 824 (Abst.) for the proposition that an attorney is not entitled to a lien against property gained on behalf of a client when the legal services rendered consisted of defending the client's status as a surviving spouse. In that case the decedent's second wife retained an attorney to prove that she had been legally married to the decedent and to enforce her rights as a surviving spouse. The marriage between the plaintiff Rhea Reuben and the decedent had been celebrated three days prior to the entry of the divorce decree terminating the decedent's prior marriage. Counsel succeeded in having the date of the divorce decree entered nunc pro tunc as of the day preceding the second marriage, thus validating the marriage between Rhea Reuben and the decedent. Thereafter a settlement was reached and the plaintiff was accorded 21% of the net estate. The plaintiff's attorney notified the administrator of his contingent fee contract with the plaintiff, and thereupon the administrator petitioned the Probate Court for instructions with respect to the payment of the fee. The sole question raised on appeal was whether the Probate Court had jurisdiction to adjudicate a controversy between an heir of an estate and an outside party. The attorney contended that he had a lien against the plaintiff's share of the estate and that the Probate Court should adjudicate his rights therein as a claim against the estate. The court held that the attorney was not entitled to a lien on the estate property. The court reasoned that counsel's services consisted only of defending the plaintiff's status as a surviving spouse, and although the plaintiff became entitled to certain property upon proving herself to be the decedent's widow, counsel had not recovered property or money in her behalf.

Although the facts in the Reuben case are in some respects similar to those in the case before us, the legal question raised and the services rendered differ significantly. In Reuben the attorney merely obtained an order which in effect validated the plaintiff's marriage to the testator. No direct recovery of money or property was accomplished by the action. In the instant case the suit was against a trustee and the purpose was to have the trust declared invalid and to procure for the plaintiff a share of the property which constituted the corpus of the trust. The plaintiff's marital status as the ...


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