1. The court erred in sustaining the general demurrer to count one of the petition and to the petition as a whole.
2. The court did not err in sustaining the general demurrer to count two.
Cowart & Cowart, a partnership composed of G. B. Cowart and G. B. Cowart, Jr., sued John Miller Budreau in two counts, seeking in the first count to recover legal fees allegedly due them upon a contract of employment, and in the second count upon quantum meruit. The first count alleged: "3. That heretofore, to wit, on April 22nd, 1950, the said defendant employed your petitioners as his attorneys at law to represent him in securing his share of the estate of his father, the late J. L. Budreau, which was being held in trust by certain executors and trustees named in the will of said J. L. Budreau, Sr. 4. Petitioners show that they entered into a contract with the said Budreau to secure his share of this estate at a stipulated fee of $12,500, a copy of said contract being attached hereto and marked exhibit 'A'. 5. Petitioners show that although said contract stipulates they were employed 'to set aside the trust', the intention of the parties and the import of the agreement were that petitioners were to secure for the said defendant his share of this estate. Petitioners show that the defendant's share of said estate was in the neighborhood of $125,000. 6. Petitioners show that there were two or three avenues of attack open to the defendant and it was finally determined that as the first method of attack that an action would be brought seeking a construction of the will and seeking to have the trust declared void. Petitioners show that such action was brought by them in behalf of the defendant to the June term, 1950, of Chatham Superior Court which said case was styled 'John Miller Budreau vs. W. L. Mingledorff, Jr., Mrs. Mary Louise B. Mingledorff, J. N. McBride, The Citizens and Southern Bank, Trustees and Executors under the will of J. L. Budreau, deceased, and Remer Lane Budreau', and all of the original pleadings in said case are in the files of this court. 7. Petitioners show that the trial court ruled in favor of the executors on the construction of the will and that this case was carried by petitioners to the Supreme Court and in the latter part of 1950 the case was affirmed with Justice Atkinson dissenting. That your petitioners filed a motion for a rehearing and a rehearing was granted and upon the rehearing the decision was adhered to with Justice Duckworth withdrawing his assent to the first decision. This final decision was handed down in January, 1951. 8. Petitioners show that in the latter part of February, 1951, the defendant called on your petitioners at their offices which were at that time in Darien, Georgia, at which time petitioners and the defendant discussed the next step to be taken in an effort to secure his share of the estate. Your petitioners were prepared to bring a second suit against the executors and trustees based upon the proposition that the said defendant was capable of managing his estate and that it was being arbitrarily withheld from him by the executors. 9. Petitioners show that at the time of this visit that the defendant had been employed by J. L. Budreau & Company, which was the business owned by certain members of his family and which was being
controlled and operated by the executors and trustees named in his father's will. He stated to your petitioners that he had a feeling that they were going to treat him fairly and he wanted a week or ten days in order to see just what they were going to do in regard to him and that he would know within the next week or ten days and if he had determined that they were going to treat him fairly that he would not care to proceed with any further litigation and would return to Darien and settle up with your petitioners. 10. Not having heard from the defendant, on March 8th, 1951, your petitioners wrote to the defendant as per the attached letter, marked exhibit 'B' and made a part hereof. 11. Your petitioners show that on March 14th, 1951, that the defendant replied to petitioner's letter of March 8th in which he refused to permit your petitioners to undertake any further proceedings in his behalf. A copy of said letter is attached hereto marked exhibit 'C' and made a part hereof. 12. Your petitioners show that as a result of the suit they had already brought and prosecuted and by reason of the threat of the impending suit that they were prepared to bring that the defendant secured from the executors a satisfactory adjustment of his differences with them wherein they agreed to turn over to the defendant his share in his father's estate and that they then and there began to make concessions to the defendant and to turn over to him certain portions of his estate and finally on June 16th, 1952, the executors filed their petition in the Superior Court of Chatham County, Georgia, setting forth that the defendant was competent and capable of managing his affairs and asked permission to turn over to him the portion of his estate remaining which they alleged at that time to be $36,000, and on June 17th, 1952, an order was entered by the judge of said court granting permission to the said trustees to turn over to defendant the remaining amount of his estate held by them. Petitioners show that the estate was turned over to defendant upon the ground that he was capable of managing his estate which was to have been the basis of the suit that would have been filed in defendant's behalf by petitioners in March, 1951, had it not been for the defendant's refusal to permit your petitioners to undertake any further proceedings in his behalf. 13. Petitioners show that they stood ready, able and willing to bring further proceedings to seek to secure for the defendant his property. Petitioners further show that said defendant ignored his counsel, your petitioners, in dealing directly with said executors and in receiving his share of said estate as alleged in paragraph twelve hereof, and in so doing said defendant acted in bad faith and with the obvious intention of depriving and defrauding your petitioners of their fees herein sued for, which said petitioners were and are justly entitled to be paid. 14. Petitioners show that during the course of the proceedings and while the case was pending in the lower court that they secured for the defendant from the trustees certain stocks in J. L. Budreau & Co., which defendant claimed were worth the sum of $15,000, and which stocks had previously been withheld by the executors. 15. Petitioners show that they have not been paid anything whatever for their services."
The second count was the same as the first except that the second count alleged that, as a result of the services rendered, the defendant secured the entire estate, and that the services rendered were worth $12,500. General demurrers to counts one and two and to the petition as a whole were sustained and the plaintiff excepts.
1. We think that the court erred in sustaining the general demurrer to the first count and to the petition as a whole. The contract between the parties is as follows: "I, John M. Budreau of Savannah, Georgia, hereby employ the firm of Cowart & Cowart of Darien, Georgia as attorneys at law to represent me in setting aside the trust created and set up in the will of my father, the late J. L. Budreau. It is agreed and understood that said attorneys are accepting this case on a contingent basis and in the event they are successful in setting aside this trust I agree to pay them the sum of $12,500. It is further agreed that in the event they are not successful in setting aside the trust, I do not owe them anything." The petition alleges in paragraph 5 that the intention of the parties and the import of the contract were that the petitioners were to secure for the defendant his share of the estate. In paragraph 12 of the petition it is alleged that, as a result of the suit already brought and by reason of the threat of another suit, the defendant obtained his share of the estate. We agree with the defendant in error on the proposition that, if the decision of the Supreme Court means that the defendant could not have by legal action possibly forced the trustees and executors to turn his share of the estate over to him in fee simple and that the only way he could have acquired his share was through the uncontrolled discretion of the trustees, the plaintiffs in this case could not recover. See Budreau v. Mingledorff, 207 Ga. 538 (63 S. E. 2d 326). The action in the above case was based on the theory that there was no valid trust for the defendant in this case. The court held that there was a valid trust for the reason that the law permits a trust for one sui juris and laboring under no disabilities if it is based on a valid trust for the remainder. There was a valid trust for the remainder in any event. If the trustees found in the exercise of a sound and bona fide discretion that the defendant was incapable of managing his estate, they had to hold the estate in trust to ascertain who would finally take the remainder. Furthermore, the trustees were compelled to hold the life estate and the remainder in trust for such time as was necessary to determine whether the defendant was capable of managing his affairs, even if they finally decided that he was. In either event the trusts were good, as in either case future events had to occur before it could be ascertained who took the remainder. The ruling by the Supreme Court to the effect that the trust was executory and that the fee-simple title to the defendant's share of the estate did not immediately pass to him does not mean, however, that the defendant could not by another action have obtained his share of the estate in fee simple by showing that he was capable of managing his own affairs and that the trustees abused their discretion in not turning it over to him. If such a discretion as the trustees had in this case was abused, equity could compel the faithful execution of the trust. Code 37-606; Budreau v. Mingledorff, supra. In support of his allegations, the plaintiff might prove that such an action would have been successful if he had been permitted to file it, and that the spirit of the agreement would have been complied with if as a result of the efforts of the plaintiffs the defendant was able to attain the real result desired, namely the
acquisition of his share of the estate. We do not think that the expression "to set aside the trust" is susceptible to only one construction, to wit, to procure a judicial determination that the trust was invalid. We think that the expression could be used to mean that the fee would be earned if the services of the plaintiffs resulted in the defendant's procuring his share of the estate, regardless of how it was accomplished, if that was really the intention of the parties. Tarbutton v. Duggan, 45 Ga. App. 31 (4) (163 S. E. 298); A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352 (191 S. E. 446). The first count set forth a cause of action for breach of the contract.
2. The court did not err in sustaining the general demurrer to the second count for the reason that the allegations of that count show that, if there is a cause of action at all, it is for breach of the contract.
Judgments affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.