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MCROBERTS v. BURNS (05/29/52)

May 29, 1952

MCROBERTS, APPELLANT
v.
BURNS



Appeal, No. 116, March T., 1952, from decree of Court of Common Pleas of Allegheny County, July T., 1942, No. 245, in case of James Altenbaugh McRoberts v. Bradley McK. Burns, Bingham S. Packard, also known as B. S. Packard, Jr., Roy G. Bostwick and Dorothea M. Burns. decree, as modified, affirmed.

COUNSEL

Charles F. Dean, for appellant.

Harry A. Estep, for appellees.

Before Drew, C.j., Stearne, Jones, Bell and Chidsey, JJ.

Author: Bell

[ 371 Pa. Page 130]

OPINION BY MR. JUSTICE BELL

It is difficult to understand the necessity for the interminable litigation in this case or the confusion which has permeated it.

This case originally involved two separate and distinct issues -- (1) a counsel fee, and (2) an accounting of a few items -- (a), sums of money received by defendant Burns for plaintiff and (b) sums of money advanced or disbursed to or for plaintiff by defendants, Burns, Packard and Mrs. Burns.

It would be well to keep in mind from the very beginning what the parties frequently forgot through their written briefs and oral arguments, viz., that this appeal involves only the question of a counsel fee.

In order to determine this question it will be necessary to review the following pertinent facts:

On October 13, 1939, James McRoberts, a brother of the plaintiff who is likewise the appellant, died intestate, unmarried and without issue. Mr. G. D. Shrum was engaged as attorney to represent the decedent's estate. Plaintiff was estranged from his family and had not seen them for forty years. Mr. Packard, a friend and tenant of the decedent knew of the family discord and asked the defendant, Mr. Bradley McK. Burns, an attorney in Pittsburgh, to try to locate the plaintiff. Through a search of court records, Burns ascertained that the plaintiff was an heir and shortly thereafter located him in the Garfield District of the City of Pittsburgh. Fifteen days after the decedent's death, plaintiff went with Packard to Burns' law office where he signed a lengthy power of attorney dated October 28, 1939, appointing Burns his attorney to "demand, sue for, recover and receive all... personal property... and/or interest in real estate which are or shall be due, owing and payable to me from [the administrator]...

"

[ 371 Pa. Page 131]

And as and for compensation to my said attorney for his professional services, I hereby assign, set over and transfer thirty-three and a third per cent (33 1/3%), 'of any decree or decrees, judgment or judgments, settlement or settlements, sum or sums of money, personal property, chose or chooses in action and/or interest or interests in real estate which may be recovered in any ...


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