[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 2257-2266; Dec. Dig. § 511.*]

18. EXECUTORS AND ADMINISTRATORS (§ 111*)

-ACCOUNTS-COUNSEL FEES.

The court, on final settlement of an administrator, should, in determining the question of allowance of counsel fees, distinguish between counsel fees chargeable against the estate and those for which the administrator is personally liable.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 448-462; Dec. Dig. § 111.*]

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Proceedings by Joseph W. Skinner, administrator of the partnership estate of Warner Whitlow, for final settlement of his accounts in which Addie L. Whitlow filed exceptions. From a judgment overruling the exceptions and settling the account of the administrator, Addie L. Whitlow appeals. Reversed and remanded, with directions.

W. M. Williams and John Cosgrove, both of Boonville, for appellant. Frank H. Haskins, of St. Louis, for respondent.

ALLEN, J. This is an appeal from a judgment overruling exceptions of appellant, the widow of Warner Whitlow, deceased, to the final settlement of respondent, Joseph W.

Skinner, as administrator of the partnership estate of "Warner Whitlow"; the respondent having administered thereupon as the surviving partner. The record discloses that some time prior to his death Warner Whitlow had a contract for doing certain railroad work in the state of Arkansas, and that for the purpose of carrying out this said contract he entered into an agreement with respondent Skinner, as follows:

"This agreement made this 11th day of July, A. D. 1901, by and between Warner Whitlow, party of the first part and J. W. Skinner, party of the second part, Witnesseth: That said Warner Whitlow having entered into a contract with J. H. Reynolds & Co. to do the pile driving, bridging and pipe laying on the White River Railway to about Sta. 1010 and the spur track to the phosphate mine and whereas the said Whitlow is desirous that the said J. W. Skinner shall superintend the construction of said work therefore it is mutually agreed between the parties hereto, that in consideration of the said J. W. Skinner superintending said work the profits arising from said work are to be equally divided between the said Warner Whitlow and J. W. Skinner."

Her

claim was allowed by the probate court for $1,207.05, and from the judgment allowing the same the appellant herein appealed to the circuit court. The latter court referred the cause to a referee who, upon reporting to the court, recommended the allowance of a portion of this claim. In passing upon exceptions to the referee's report, the court found that the referee erred in holding that a partnership existed between respondent and Whitlow, and ordered and adjudged that the claimant, Mrs. Skinner, take nothing by her suit. From the latter judgment of the circuit court Mrs. Skinner was granted an appeal to this court, but her appeal was thereafter dismissed for failure to prosecute the same, and the judgment of the circuit court in the premises became final. Thereafter the respondent, as administrator, filed his final settlement of the alleged partnership estate in the probate court. In this settlement the respondent charged himself with cash on hand amounting to $2,317.30, and took credit for the following disbursements:

"Advertising final settlement, $5.25; attorney's fee, $100.00; probate court costs, $12.50; bond premium, $5.00; return of cash advanced by Joseph W. Skinner, $99.50;' 'accounts of no value, $1,321.85.'

These credits totaled $1,544.99, leaving a balance of $773.11. The probate court approved this settlement, and made an order

of distribution, to the effect that Skinner, the respondent, should retain one-half of the balance in his hands and pay over the remaining one-half thereof to the appellant, Addie L.

Whitlow, executrix

of the last will and testament of Warner Whitlow, deceased. The appellant herein filed exceptions in the probate court to the final settlement, which that court overruled. Appellant thereupon appealed therefrom to the circuit court where all of her exceptions were overruled, except as to the item of $5, for which the respondent had taken credit for payment of a premium on his bond as administrator, and the respondent was ordered to pay appellant one-half of the balance in his hands, subject to the payment of costs, and $100 allowed by the court as a fee to the administrator's attorney for services herein in the circuit court. From this judgment the appellant prosecutes her appeal to this court.

the estate, to the effect that no partnership existed between Whitlow and Skinner, was res adjudicata as to that question between the parties to this action, as is insisted by learned counsel for appellant, it is unnecessary for us to decide.

[1, 2] II. Whether a partnership existed is a question of intention on the part of the parties, which must be arrived at from the contract itself; for such relation springs, if at all, from an agreement of the parties evidencing an intention to enter into the same. Where, as here, a written agreement has been entered into, the intention is to be ascertained by a construction of the writing itself; though in construing the instrument regard should be had to the surrounding circumstances, where resort to the latter is necessary to arrive at the real intention of the parties.

[3] The instrument here in question shows upon its face that Whitlow had previously entered into a contract with J. H. Reynolds & Co. to do certain railroad work; that he desired Skinner to superintend this work, and, in consideration of Skinner's so doing, the latter was to receive one-half of the profits. There is no suggestion or intimation of a partnership between the parties; but, on the other hand, the language used would seem clearly to negative any such idea. It appears that Whitlow had an "outfit" for doing such work, and from the agreement in question it seems quite clear that Skinner was merely being employed by Whitlow to superintend the work which Whitlow had contracted to perform, and that he was to be compensated for his services by receiving one-half of the profits, in lieu of salary or wages.

[4] In interpreting the contract the object is to reach the actual intention of the parties the intention expressed in the writing which they themselves employed to portray it, and consistent therewith. They seem to have used appropriate language to express their intention and meaning, and it seems quite clear that no partnership was intended or created.

agreement of the parties is shown in evidence, from which it appears that they did not intend to form a partnership. Such intention necessarily controls. See Ellis Va Brand, 158 S. W. 708; Graf. Dist. Co. v. Wilson, 172 Mo. App. 612, 156 S. W. 23, and authorities to which we referred in those cases. And in Ellis v. Brand, supra, we said:

"Whatever may be said as to the presumption arising, prima facie, from evidence alone of an agreement to participate in profits and losses, such presumption takes flight upon proof of the complete contract existing between the parties showing that no partnership relation was intended or created.

Not only is the presumption here sought to be raised rebuttable, but, like any other presumption of this character, it does not arise or obtain when the facts themselves are at hand. The law indulges such presumptions ex rei necessitate, where evidence is lacking as to the actual facts, and thus it has been said:

"Presumptions may be looked on as the bats of the law flitting in the twilight but disappearing in the sunshine of actual facts." Lamm, J., in Mockowik v. Railroad, 196 Mo. loc. cit. 571, 94 S. W. 262.

See, also, Tetwiler v. Railroad, 242 Mo. loc. cit. 194, 145 S. W. 780; Rodan v. Transit Co., 207 Mo. loc. cit. 411, 105 S. W. 1061; Sowders v. Railroads, 127 Mo. App. loc. cit. 124, 104 S. W. 1122.

Here the contract between the parties appears to be complete on its face. It is not doubtful, ambiguous, or uncertain in its terms, but its meaning quite definite and clear. Manifestly it does not contemplate a community of interest in the property involved in the enterprise in question, nor a joining of the parties as principals in a joint undertaking. It does not purport to give Skinner any voice in the management or conduct of the business or control over the property used in prosecuting the same; neither does it make him anywise liable for losses incurred. The essential elements of a partnership are wanting; and the idea that the creation of such relation was intended is excluded by the fact that the contract merely purports to give Skinner one-half of the profits arising from certain work in consideration for his personal services in superintending the same. See Sawyer v. Burris, 141 Mo. App. 108, 121 S. W. 321.

mately be realized. See Strode v. Gilpin, 187 Mo. loc. cit. 392, 86 S. W. 77.

[16, 17] The circuit court, upon motion, allowed to respondent an attorney's fee of $100 for defending the final settlement in that court against the exceptions filed thereto,

[13] The attorney's fee of $100 appearing in the final settlement is attacked upon the ground that the estate is not liable therefor, and as being excessive. This is an expense incurred by the administrator in the course of administration and while the property was allowed to remain in his hands. It was proper for the probate court to allow reasonable attorney's fees for legal services rendered the estate. The evidence in the record is meager as to the amount and character of the services rendered; but the reasonableness of the allowance was passed upon by the probate judge, who was in a position to know the value of the services rendered, and we think that the allowance should not be disturbed.

[14] The credit taken for moneys claimed to have been advanced to the estate by Skinner must be presumed to have been properly allowed by the probate court, as no evidence to the contrary appears.

[15] As to the credit for $1,321.85 for uncollected accounts, and which were charged off as uncollectible and worthless, section 240, Rev. Stat. 1909, authorizes the probate court to give credit to the executor or administrator for debts charged in the inventory as due the estate

that:

*

"The court may in its discretion order the executor or administrator to sell at public auction all notes, accounts and choses in action remaining in his hands, or the court where there are no creditors of the estate may order the same to be turned over to the heirs and legal representatives of the deceased, who shall have the right to sue for and recover thereon in any court of competent jurisdiction." The provisions of these sections are evidently applicable to partnership estates. See section 99, Rev. Stat. 1909.

Under the circumstances we must presume that the probate court was satisfied that it was not possible for the administrator to collect the accounts here in question, by the exercise of due diligence. This being true, we must hold that appellant's exception to this credit is not well taken. However, since the conclusions we have reached herein necessitate a further settlement and order of distribution, should the accounts in question appear to be now of any value whatsoever, the probate court will doubtless make appro

to be paid to appellant subject to the payment of this fee and the costs. Such an allowance by the circuit court for defending a final settlement has been upheld, even where certain credits were disallowed. See Jacobs v. Jacobs, 99 Mo. loc. cit. 437, 12 S. W. 457; In re Estate of Meeker, 45 Mo. App. loc. cit. 197. In an ordinary case we would have no disposition to interfere with an allowance for such purpose, where the executor or administrator has faithfully discharged his duties, and in the main rendered a true account of his trust, though certain items in the settlement were technically objectionable. The difficulty here is that the principal question litigated pertained to the distribution of the assets remaining in respondent's hands; upon the facts revealed by this record we hold that the appellant is entitled to all thereof, and the question is whether she should be compelled to bear respondent's counsel fees incurred in such litigation.

The general rule is that an administrator cannot be allowed counsel fees incurred for services rendered in defense of his own personal interest, or where the litigation is in reality between beneficiaries, and not for the benefit or in the interest of the estate as a whole. See 2 Woerner on Administration (2d Ed.) § 516, and authorities cited; In re Final Settlement of Peter's Estate, 128 Mo. App. 666, 107 S. W. 406. In the main, the contest here was in reality between beneficiaries, and the result affects, not the estate, but the personal interest of respondent therein.

[18] However, counsel fees for defending the settlement against the exceptions to credits taken by respondent therein are properly chargeable against the estate. Jacobs v. Jacobs, supra. There is, of course, some practical difficulty in separating such charges, or apportioning the fees, but it seems that in such a case this should be done; distinguishing between that which is properly allowable against the estate and that which the administrator should bear personally. See 2 Woerner on Administration (2d Ed.) § 516; Price's Estate, 81 Pa. 263; Fox's Appeal, 125 Pa. 518, 17 Atl. 451.

It would appear that the allowance in gross made by the circuit court was improper; and the order made in the premises should be vacated without prejudice to the right of respondent to apply to the probate court for the allowance of such attorney's fees as in the opinion of that court should be allowed for defending the final settlement against the exceptions which pertain alone to the credits taken by respondent therein.

For the reasons given above the judgment is reversed, and the cause remanded, with

ally.

Cyrus Crane, of Kansas City, and O. L. Cravens, of Neosho, for appellant. J. A.

cur.

MILLER V. KANSAS CITY SOUTHERN RY. CO. (No. 1130.)

(Springfield Court of Appeals. Missouri. May 1, 1914. Rehearing Denied May 22, 1914.) 1. DAMAGES (§ 112*)-DESTRUCTION OF GROWING TIMBER-MEASURE OF Damages.

The measure of damages for the destruction by fire of numerous small forest trees ranging in height from eight inches to three feet is the difference between the value of the land before and after the fire, and not the difference in the value of the trees before and after the fire; the trees having no value when severed from the soil.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 2. DAMAGES (§ 112*)-DESTRUCTION OF CROP OF HAY-MEASURE OF DAMAGES. The measure of damages for the destruction of a meadow about ready to harvest is the value of the crop of hay and the cost of re-seeding the meadow.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 3. DAMAGES ( 112*)-DESTRUCTION OF MEADOW-MEASURE OF DAMAGES-COST OF RESEEDING.

The measure of damages for the destruction by fire of a meadow is the cost of re-seeding the land.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 4. TRIAL (8 84*) — EVIDENCE — OBJECTIONS SUFFICIENCY.

An objection to a hypothetical question put to a witness as to the probable damage caused by a fire destroying trees and a meadow, on the ground that it is incompetent, immaterial, and irrelevant, and because the witness states that he knows the land and the value thereof, and that is sufficient, does not raise the question of the disqualification of the witness as an expert. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 211-218, 220-222; Dec. Dig. § 84.*] 5. APPEAL AND ERROR (§ 232*)—QUESTIONS REVIEWABLE-RULINGS ON EVIDENCE-REC

ORD.

The ruling on an objection to testimony as to the value of land before and after it was burnt over, "for the same reason last given," will not be reviewed, where an examination of the record shows no objection to the previous testimony of the witness, and the next previous objection was to the testimony of the preceding witness, which was sustained, as not a proper way to prove the market value of the land, and that it was not shown that he knew, and that the next previous objection was that the facts called for were not proper proof of damages, because the court will not determine the particular proposition that the objector had in mind

when making his objection.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.*]

Neosho, for respondent.

ROBERTSON, P. J. This action originated in McDonald county circuit court, and, on change of venue, was tried in Newton county, resulting in a verdict in favor of the plaintiff on the first count in his petition for $125, on the second count for $8, and on the third for $12. The defendant has appealed.

Plaintiff's petition alleges as the first cause of action that, by reason of a fire on or about November 14, 1911, communicated to the land mentioned by an engine owned and operated by the defendant on its road, certain young timber was destroyed, causing damage to the amount of $800. The second cause of action alleges that in June, 1911, one acre of meadow on said land was destroyed by a fire set out in the same manner, causing damages to the amount of $10. The third cause of action alleges that in September, 1912, a fire set out in the manner above stated destroyed two acres of meadow on said land, causing $15 damages. The land was owned by the wife of plaintiff, but the cause of action was assigned to him, and there is no point made here on that question.

The testimony offered by the plaintiff in support of the first cause of action tended to prove that a large number of small cedar and pine trees were growing upon the land and the damages were, over the objection of the defendant, proved by testimony tending to show the value of the land before and after the fire. The testimony discloses that the fire which occurred in June, 1911, referred to in the second cause of action, destroyed the timothy then growing on the meadow, which was about ready for harvesting, and the testimony tended to prove the value of the crop and also the cost of re-seeding the ground. In support of the third cause of action the testimony introduced was as to the cost of re-seeding the meadow which it is claimed was destroyed.

At the close of the testimony the court instructed the jury that, if they found for the plaintiff on the first cause of action, in assessing the damages they should place them at such sum as would equal the difference in the reasonable market value of the land immediately before the fire and immediately thereafter; that on the second cause of action the damages should be assessed at the reasonable value of the crop destroyed and the cost of re-seeding the land; and as to the third

Action by John W. Miller against the Kan