IN RE DELANY'S ESTATE

COIL, Commissioner.

Appellant, John T. Sluggett, claimant below and so referred to herein, filed his demand against the estate of Elizabeth Sloan Delany, deceased, wherein he claimed $25,934.52 for legal services rendered and expenses advanced in connection therewith. The demand was certified to the circuit court where the motion of the executrix to dismiss was sustained and final judgment of dismissal was entered. This, on the ground that a decree and judgment in another cause was res judicata of claimant's right to recover.

The alleged legal services and expenses advanced were in connection with the defense of Elizabeth Sloan Delany, deceased, in certain insanity proceedings. The St. Louis Probate Court, pursuant to an inquiry instituted May 9, 1947, had found Mrs. Delany of unsound mind and incapable of managing her affairs and had appointed a guardian of her person and estate. On June 3, 1947, claimant, as Mrs. Delany's attorney, appealed from that judgment. A jury trial, December 1, 1947, resulted in a mistrial. A second jury trial, April 5, 1948, resulted in a verdict and judgment finding Mrs. Delany of unsound mind and incapable of managing her affairs. On appeal, wherein claimant represented Mrs. Delany, the St. Louis Court of Appeals reversed the judgment and remanded the cause for retrial, because irrelevant, prejudicial evidence had been admitted.

On April 27, 1948, after the circuit court judgment and while the appeal therefrom was pending, an action in equity was brought in the circuit court in which claimant and Mrs. Delany, among others, were joined as defendants. Judgment for plaintiffs was affirmed by this court in Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926. The petition, the joint answer of claimant and another, and the trial court's decree have been included by agreement in the instant transcript. Under the circumstances, we shall take judicial notice of the entire record and the contents of our file in Tracy v. Sluggett, supra. Burton v. Moulder, Mo.Sup., 245 S.W.2d 844, 845[1].

The main purpose of the action, Tracy v. Sluggett, supra, was to preserve and protect the person and property of Mrs. Delany. Specific relief to accomplish this primary purpose was granted. A full recounting of the allegations of plaintiffs' petition, the guardian's intervening petition, the respective prayers for relief, and the findings and judgment of the trial chancellor are contained in our opinion. That case should be read in connection with, and for a proper understanding of, this opinion.

For present purposes, it is sufficient to state that among the allegations of the petition were these: that defendant (instant claimant) purported to act for Mrs. Delany in the insanity proceedings in the probate and circuit courts and in the court of appeals, but that, in reality, acted for and on behalf of other defendants; that claimant did not act for the benefit or welfare of Mrs. Delany, but acted for the benefit and welfare of certain of his codefendants; that a certain trust indenture executed by Mrs. Delany on January 8, 1948 (and sought to be set aside), was prepared by claimant for the benefit of himself and certain codefendants; and that all of Mrs. Delany's assets had been taken over under the terms of the trust indenture by the trustee named therein (claimant's son). These allegations (except that as to the trustee taking possession of the property of Mrs. Delany which was admitted) were specifically denied by claimant's answer. These issues so framed, were litigated. Among the trial chancellor's findings of fact were these:

"The Court further finds from the evidence and the testimony adduced in this cause that the defendants John T. Sluggett, John T. Sluggett, III, Marie Schaefer and Margaret Watson have acted in consort with each other for the purpose of depriving Elizabeth Sloan Delany of her property, real, personal and mixed; * * *

"The Court further finds that the defendants, John T. Sluggett, and John T. Sluggett, III, alleged trustee, were not acting for the welfare, benefit and interest of the said Elizabeth S. Delany at any of the times mentioned in the evidence, but were acting for the welfare, benefit and best interests of their co-defendants, Marie Schaefer, Margaret Watson and Elizabeth Martin.

"The Court further finds that the alleged Indenture of Trust is unconscionable, unfair, unreasonable and arbitrary * * *."

The court's decree and judgment contained, among other matters adjudged, this:

"That all of the issues are in favor of the plaintiff Edwin F. Tracy and the Intervenor Walter L. Roos, Guardian of the Person and Estate of Elizabeth Sloan Delany, Non Compos Mentis, and against the defendants John T. Sluggett, John T. Sluggett, III, Marie Schaefer, Margaret Watson and Elizabeth Martin.

"That the Temporary Injunction heretofore issued in this cause, on to-wit, November 12, 1948, is hereby made permanent, and the defendants John T. Sluggett, John T. Sluggett, III, Marie Schaefer, Margaret Watson, Elizabeth Martin, their agents and attorneys, and each and all of them, * * or any one acting or claiming or assuming to act or claim under them, are hereby permanently enjoined from in any manner annoying, obstructing, or in any manner interfering with the person of the said Elizabeth S. Delany or from going upon or into the premises of said Elizabeth S. Delany at 5105 Lindell Boulevard, or in any manner interfering with the said Walter L. Roos, Guardian of the Person and Estate of Elizabeth S. Delany, Non Compos Mentis.

"That the costs of this suit are adjudged against the defendants John T. Sluggett, John T. Sluggett, III, Marie Schaefer and Margaret Watson. Let execution issue for the same."

As heretofore noted, the judgment of the trial chancellor was affirmed by this court. Tracy v. Sluggett, supra.

The view we take makes it necessary to determine only one proposition, viz., was it finally adjudged that instant claimant was not representing Mrs. Delany in the insanity proceedings, but was in fact acting for and with others whose interests were adverse to hers? For, if so, there has been a final adverse determination of a material fact essential to claimant's recovery on his instant claim. That is to say, if claimant can recover on instant claim, he must establish that he in fact and in reality represented Mrs. Delany. If it has been heretofore determined that he did not so represent her, that fact issue may not be relitigated. In re Thomasson's Estate (Bennett v. Boatmen's Nat. Bank), 355 Mo. 274, 285, 196 S.W.2d 155, 162 [8-10], 170 A.L.R. 1170.

It may be assumed, though we do not so decide, that the claim now asserted by claimant (for attorney's fees for services rendered and expenses incurred in the insanity proceedings) is wholly different from that adjudicated in Tracy v. Sluggett, supra; and it may be further assumed, though we do not so decide, that the trial court's decree could not properly, or did not clearly, include a specific finding that claimant was not entitled to such fees. For, if we so assume, another res judicata principle is decisive. In a subsequent suit between parties or their privies who were adverse parties in a prior suit wherein an ultimate material fact was actually litigated and determined, such prior determination is binding as to such parties and precludes another determination of the same fact. Kimpton v. Spellman, 351 Mo. 674, 681[2], 173 S.W.2d 886, 891[3-7]; Laughlin v. Boatmen's Nat. Bank of St. Louis, 354 Mo. 467, 473[2], 189 S.W.2d 974, 977[7, 8]; In re Thomasson's Estate (Bennett v. Boatmen's Nat. Bank), supra. Such prior adjudication may be of a single fact. In re Guardianship of McMenamy, 307 Mo. 98, 115, 270 S.W. 662, 667. The principle applies whether the prior judgment was at law or in equity. Shay v. New York Life Ins. Co., 354 Mo. 920, 929, 192 S.W.2d 421, 427[4]; Rest., Judgments, § 68, j, p. 305.

As heretofore noted, there can be no doubt that it had been specifically alleged, litigated, and determined in the trial court that claimant here did not in fact represent Mrs. Delany in the insanity proceedings. Nor can there be any doubt that claimant and Mrs. Delany, although both defendants, were adverse parties in that action; they were necessarily so by the pleadings, the issues litigated, and the findings and decree entered. Nave v. Adams, 107 Mo. 414, 420, 421, 17 S.W. 958, 960; 19 Am.Jur., Equity, § 413, p. 284, 30 Am.Jur., Judgments, § 234, pp. 967, 968. And, of course, respondent here (executrix) is the privy of Mrs. Delany, deceased, for privity exists between an executrix and a testatrix. In re Thomasson's Estate, supra, 196 S.W.2d 159 [6,7]; Womach v. City of St. Joseph, 201 Mo. 467, 478, 100 S.W. 443, 445, 10 L.R.A., N.S., 140. And it makes no difference that all the parties of the prior litigation are not parties to the instant action. Young v. Byrd, 124 Mo. 590, 598, 28 S.W. 83, 84; Nave v. Adams, supra.

But another matter must be considered before it may be correctly said that the fact issue mentioned was finally adjudicated in the prior litigation. As noted, appeals were taken from the judgment entered by the trial chancellor. Claimant here was an appellant and filed a brief pro se. Generally, the appellate court's affirmance of a judgment is conclusive as to the parties as to all fact issues properly embraced within the judgment. And as to such matters, the judgment is conclusive between those who were parties (or their privies) to the prior action, in any subsequent action between the same parties, even though the subsequent action is on a different claim or cause of action. However, where an appellate court affirms only part of a judgment, the part affirmed is res judicata as to fact issues specifically decided or which were necessary or proper to support the part affirmed. And where the trial court's judgment is based upon alternative grounds, either of which would be sufficient to support the judgment, and the appellate court determines the sufficiency of one such ground and, by its opinion, indicates that it has expressly refused to consider the sufficiency of the other, the judgment is conclusive only as to the ground considered, and as to the material facts litigated and decided (or necessarily embraced) in support of the ground considered. Rest., Judgments, § 69, p. 315, and comment b, p. 316. See: Goedecke v. Gralnick, 354 Mo. 478, 487, 190 S.W.2d 218, 223[3]; De Vore v. Armourdale State Bank, Mo.App., 128 S.W.2d 1074. And where an appellate order affirming a case affirmatively discloses that a decree and judgment of a trial court is affirmed only for certain specified reasons, the decree of the trial court is thereby in effect "modified", and the judgment is res judicata only as to those matters included within the judgment as "modified". State on inf. of McKittrick ex rel. City of Trenton v. Missouri Public Service Corp., 351 Mo. 961, 970[1], 174 S.W.2d 871, 875-877.

Claimant insists that the prior action was nothing more than an action in equity to cancel a trust indenture; that any facts determined therein which bore upon claimant's right to an attorney's fee (for representing Mrs. Delany in the insanity proceedings) were beyond the scope of the issues; and that the judgment cannot bar his present claim. As we have heretofore pointed out, however, the material fact issue as to claimant's representation of Mrs. Delany made by the pleadings was litigated, and was decided by the trial court adversely to claimant. We must, nevertheless, look to our prior opinion to determine whether the trial court's ruling as to this relevant, material, litigated fact issue determined below was affirmed by this court.

Our opinion in Tracy v. Sluggett, supra, determined and held that the trial court had jurisdiction only because we found it was an "extra ordinary case" in which "the most extraordinary charges" were stated in the pleadings, "which charges, if true, call for the action of a court of equity." 232 S.W.2d 930. In determining the trial court's jurisdiction, this court found, as had the trial court, that certain allegations of the petition were supported by evidence which called for the exercise of the powers of a court of equity to protect the person and estate of one of unsound mind. And we held that the broad equitable powers of the circuit court had been properly invoked under the pleadings and the evidence as disclosed by that record; that the case was an appropriate one for the exercise of the general equity jurisdiction rather than the limited jurisdiction of the probate court. Under a contrary holding, plaintiffs (expectant heirs) would not have had a sufficient interest to have maintained the action. Thus, we approved the findings made and the relief granted by the trial court on the theory that otherwise one "might at his will and pleasure commit waste on a lunatic's property or do damage or serious injury and annoyance to him or his property, without there being any remedy whatever." 232 S.W.2d 931. And it is to be remembered that claimant had been charged to be, and the trial court had found him to be, one who was attempting to "commit waste."

In Tracy v. Sluggett, supra, is set out the substance of the trust indenture found by the trial court to have been unfair and unconscionable. This instrument was prepared by instant claimant. We said: "We consider it pertinent to set out the substance of the trust indenture." (Italics, the present writer's.) We then reviewed the evidence on the issue of mental capacity and said: "Acts of Mrs. Delany with reference to her property, and the testimony of witnesses, which testimony the trial chancellor obviously must have believed, clearly show Mrs. Delany is of unsound mind." 232 S.W.2d 933. True, we said: "In view of the condition of Mrs. Delany's mind, we deem it unnecessary to marshal the evidence bearing upon or decide the issues of undue influence and duress." 232 S.W.2d 936. But, from the fact that we did not specifically decide the issues of undue influence and duress, it does not follow that the issue as to claimant's representation of Mrs. Delany was not included in our affirmance.

We specifically indicated the only issues decided below which were not decided on appeal, i. e., the issues of undue influence and duress. It seems clear, then, that all other litigated, material fact issues decided below were included within our general order of affirmance. The facts relevant to the issue of whether claimant was or was not in fact representing Mrs. Delany in the insanity case were material to issues other than the issues of undue influence and duress.

Our order of affirmance in Tracy v. Sluggett was quite different from the one involved in State on inf. of McKittrick ex rel. City of Trenton v. Missouri Public Service Corp., supra. The appellate opinion being there considered had stated [351 Mo. 961, 174 S.W.2d 876]: "We think that the decree appealed from was right for the reasons stated, and it is therefore affirmed." Our order of affirmance in Tracy v. Sluggett, supra, was general. Our order considered with our statement that it was unnecessary to "marshal the evidence" on or decide the issues of undue influence and duress, must be construed as affirming all other material, ultimate fact issues determined by the trial court as a basis for its judgment.

And there are additional reasons why our opinion was not solely an affirmance of that portion of the judgment which set aside the trust indenture on the ground of mental incompetency. As we have noted, the opinion affirmed the fact that the equity court had jurisdiction. There was an affirmance of the fact (found by this court as well as by the trial court) that the evidence was sufficient to imperatively call for general equitable relief. What was the effect of such? It had been alleged that claimant was not representing Mrs. Delany but was in fact representing other codefendants and acting with them in an attempt to deprive Mrs. Delany of her property. The trial court found that the allegation was true. If this court had not also found that the evidence justified that finding of the trial court, it would appear that there would have been no basis for the affirmance of the trial court's jurisdiction. For, if the fact were otherwise, Mrs. Delany would have been properly represented, and her property would have been protected by claimant and the insanity proceedings would have been initially within the exclusive jurisdiction of the probate court until a final adjudication in those proceedings.

Furthermore, we specifically stated: "We approve of the action of the trial court in designating and authorizing Walter L. Roos to act as receiver in effect; and we approve of the trial court's supervision of his acts in ministering to Mrs. Delany's comfort and welfare, and in integrating, protecting and managing her estate." 232 S.W.2d 936. And we concluded with the all-inclusive statement: "And now she is helpless — her body is lame and diseased, and her mind almost wholly taken over (since early 1944, the trial chancellor has justifiably found) by her progressive dementia senile. Completing our study of the whole transcript of the evidence, we should have been exceedingly surprised had we discovered that Mrs. Delany's plight of person and estate had not appealed to the conscience of a chancellor. The judgment should be affirmed. It is so ordered." (Italics, the present writer's.) 232 S.W.2d 937. Thus, we specifically approved the intervention of the guardian appointed by the probate court, and approved the judgment of the trial court making him, in effect, a receiver to minister to Mrs. Delany's comfort and welfare; and this, even though there had been no final adjudication by the probate court, or on appeal therefrom, as to Mrs. Delany's insanity. And this approval necessarily included approval of the trial court's judgment enjoining defendants, including claimant, from interfering with Mrs. Delany's property or person. Such approval would not have been given if we had concluded that claimant was in fact representing Mrs. Delany in the insanity proceedings and adequately protecting her property.

Our opinion in Tracy v. Sluggett, supra, considered in its entirety and in the light of the issues, evidence, and findings below, compels the conclusion that our order affirming the trial court's judgment included an affirmance of the finding on the litigated, material fact issue as to whether claimant had, in truth and in fact, represented Mrs. Delany in the insanity proceedings.

Claimant has had his day in court on that fact issue. Such issue has been decided adversely to him. He may not relitigate that issue. It follows that, inasmuch as his right to recover (either attorney's fees or expenses advanced in connection with the legal services) is dependent upon the finding of this fact issue favorably to him, which has been heretofore determined adversely to him, he may not recover. Laughlin v. Boatmen's Nat. Bank of St. Louis, Mo.Sup., 163 S.W.2d 761, 765[11-14]; In re Thomasson's Estate, supra.

The judgment is affirmed.

VAN OSDOL and LOZIER, CC., concur.