
    In re application of Mary E. Hynes, general guardian, etc.
    
      (Court of Appeals,
    
    
      Filed May 13, 1887.)
    
    1. Guardian—Authority to employ attorney.
    A guardian in socage may make a :contract, employing counsel, to recover possession of lands withheld from the ward, and fixing the compensation at a certain share of the net value of the property recovered, even thougli-that value may he very large, where the circumstances justify it.
    2. Same—Employment of counsel.
    The guardian, who was the molly r. also retained other counsel, entirely distinct from the contract referred to Held, that she could, not retain counsel and charge the expense of his payment to the attorney without his assent, and that such assent would not he implied from the fact that the attorney consulted with such counsel and permitted him to take the leading part in the trial.
    3. Same.
    There was a sale of vacant lots in Tenessee, and the proceeds of the sale are in the hands of the clerk of the chancery court of the state. Held, that the attorney was entitled to his proportion of that fund. Ruger, 0. J., and Earl, J., dissenting.
    Appeal from general term, supreme court, first department.
    On a petition to the supreme court by Mary E. Hynes, the mother of the infants William R. and Andrew Hynes, asking leave to sell the interest of the said infants in certain real property therein described, for the purpose of paying an indebtedness of $16,000 to Charles Todd, of St. Louis, Missouri, for necessaries furnished the infants, and an indebtedness to John L. Brower, their attorney and counsel, of $40,000; that court appointed the Farmers’ Loan and Trust Company special guardian of the said infants for the purpose of and in respect to the proceedings herein, and an order of reference was made to Philo S. Ruggles, Esq., to examine as to the matters contained in the petition, and to report his opinion thereon, with the testimony, particularly as to the alleged indebtedness of said infants.
    The referee found that the value of the property recovered was $141,660 28. He also found that the claim of Charles Todd was established, and recommended its payment. He further reported that Brower was entitled under his agreement to one third of the total net recovery, or $40,581 97. The agreement was as follows:
    
      “ This agreement, made the 21th day of Novemoer, 1875, between Mary Eliza Hynes, individually, and as general guardian of William R Hynes and Andrew Hynes, party of the first part, and John L. Brower, of the city of New York, party of the second part.
    
      Whereas, The said party of the first part and her two children, William R Hynes and Andrew Hynes, are in poor and needy condition; and,
    
      Whereas, A large amount of real and personal property belonging to William R Hynes, the late husband of the party of the first part, is unlawfully withheld from said party of the first part and her said children; and,
    
      Whereas, Said party of the first part, individually and as guardian aforesaid, had and has no means wherewith to commence and continue proceedings for the recovery of said property; and,
    
      Whereas, The said party of the second part, at the special request of the said party of the first part, has commenced proceedings to recover said property;
    
      Now, this agreement witnesseth: That the said party of the first part, individually and as said guardian, for and in consideration of the assistance and service of the said party of the second part attempting to recover the property aforesaid, agrees to pay to the said party of the second part a sum of money equal to one-third of the value of all the the said property recovered and restored to her and her said children.
    In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.
    M. E. HYNES, [L. S.]
    M. E. HYNES, as guardian, [L.»S.] JOHN L. BROWER, [L. S.]
    Sealed and delivered in presence of
    RICHARD O. H. FINCH.”
    The referee further found that Brower’s services under which they were rendered, were well and reasonably worth a one-third the amount recovered.
    Brower took proceedings in ejectment for the possession of the real estate in the city of New York, and by agreement one case was tried, which resulted successfully to the infants, and the judgment was affirmed by the ‘general term and the court of appeals. The case was a second time tried, again resulting in a judgment for the plaintiffs, and this judgment was also affirmed by the general term and this court.
    Upon the report of the referee being presented, the court declined to confirm it as to the claim of Brower, refusing to sanction the agreement made by the mother of the infants-with him, but permitted further proof to be given as to the reasonableness of the agreement. An order was then entered confirming the report as to the indebtedness to Todd, directing a sale of sufficient property to pay the same, and referring the matter back to the referee, to take further proof as to the reasonableness of the said agreement with Brower, and to report his opinion thereon, together with the testimony. Pursuant to said order, a portion of the property was sold for $24,000, the infants’ share of which was more than sufficient to pay the claim of Charles Todd against them, and that claim has been satisfied. Included in Todd’s claim were items of payments made to Joseph H. Choate, who was counsel for the infants, amounting to $2,250.
    The testimony taken before the referee, and particularly that taken upon the hearing had upon this order of the court referring the matter back to him, when Joseph H. Choate was called as a witness, shows that Choate acted as counsel in the ejectment suits from the time of the first trial at circuit, through the appeals, in the second trial at circuit, and again upon the appeals, ending with the last hearing in the court of appeals. Choate testified that he had a claim against the estate of $10,000, less the amount of $2,250, which had been paid to him. This sum was the amount paid him by Tocfd, and repaid Todd out of the infants’ property, $2,250, and $500 paid him of the damages recovered. This claim of Choate is not included in the one-third claimed by Brower.
    Upon the second hearing before the referee, expert witnesses were called on the part of Brower as to the reasonableness of the agreement in question, and the referee made his second report, in which he finds that the agreement in question “was in all respects a just, fair, reasonable and proper agreement, under the circumstances under which the same was made, and was advantageous to said infants, ” and that the infants were each indebted to Brower to the extent of the value of one-third of the estate, real and personal, recovered by him for said infants.
    This report was confirmed, and the real estate of the infants ordered to be sold to pay the amount of the indebtedness found due to Brower.
    From this order sustaining the agreement, fixing the amount due to Brower, and ordering sale of real property to pay it, the special guardian appealed to the general term. That court modified the order so as to provide that the money which had been paid and should thereafter be found due to Choate, should be paid out of the one-third allowed to Brower; and, as so modified, affirmed the order. From this affirmance the special guardian appeals to this court, and Brower appeals from that part of the order which modifies the special term order.
    
      Truman H. Baldwin, for app’lt; David McClure, for resp’t.
   Peckham, J.

There can be no doubt of the authority of a guardian in socage to make a contract such as this. By our Revised Statutes, under the facts in this case, the mother became a general guardian, with the rights, powers and duties of a guardian in socage. 1 Rev. St., 718, § 5. Such a guardian had the right to the possession of the ward’s lands, and to the receipt of the rents and profits thereof, and could maintain ejectment to recover possession of such lands. Jackson v. De Walts, 7 Johns., 157; Beecher v. Crouse, 19 Wend., 306; Byrne v. Van Hoesen, 5 Johns., 66; Sylvester v. Ralston, 31 Barb., 286; Emerson v. Spicer, 46 N. Y., 594; Shouler, Dom. Rel., §§ 286, 290; 2 Kent Comm., 222.

The right to the possession of the real estate of the ward carries with it a corresponding duty to obtain such possession, and, if wrongfully withheld, the guardian should sue for it. In imposing this duty upon the guardian, the law necessarily gives to him the right to employ counsel, and of course to make a contract for his compensation. Taylor v. Bemiss, 110 U. S., 42; 3 Sup. Ct. Rep., 441. The attorney for Mrs. Hynes, and also all the other parties, seem to have regarded this proceeding as practically a suit to enforce a specific performance of the contract made between the attorney and Mrs. Hynes as general guardian for her infant children; and with that view he proved the facts surrounding the making of the agreement, and gave evidence as to the value of the property to be recovered, the pecuniary situation of the infants and their guardian, the labor involved in the prosecution of the various legal proceedings, and the success attending such prosecution; and he also called some of the most reputable and eminent members of the New York bar upon' the question of the reasonableness of such agreement, and their opinions were unanimous, and were all favorable to its propriety and fairness. The. questions involved in the litigation in the actions of ejectment were argued upon appeal before this court, and have been reported. See 82 N. Y., 41, and 91 id., 451. That they were complicated and grave cannot be doubted.

The question of the propriety of the agreement was before the special term of the supreme court, and, although there was then no affirmative evidence against it, yet the learned and careful judge therein presiding referred it back to the referee to take further evidence on that subject, and. to report thereon to the court. It was upon the proceeding on the second reference that the opinions of the members of the bar were procured under oath, and upon a fair statement of all the facts as shown in the record now before us. The referee in his second report said upon this subject: “I have carefully considered the situation of the infants after the death of their father, as disclosed by the testimony taken herein, in that the estate, both real and personal, of their father, had been taken possession of by relatives of the father residing in this country, claiming to be his only heirs at law and next of kin; they insisting that the marriage of the father of said infants with their mother, the petitioner, was illegal and void, and said infants illegitimate; and in that the marriage claimed had taken place in a foreign country, without the performance of any marriage ceremony; and that said relatives were possessed of large means, and said infants were without any means to prosecute legal proceedings to establish their claim to legitimacy, and to their father’s property; and their motheiwas also without any means; and the infants were dependent upon the charity of the friends of their late father for support, and were of tender years.” The referee finds, as a fact, that the agreement with Mrs. Hynes individually, and as general guardian of the infants, was in all respects just, fair, reasonable and proper. The special term again examined this report, and, in an opinion, the learned justice holding that court said: “I have most carefully examined the testimony taken before the learned referee, both at the original and supplemental hearings, and I have reached the conclusion that the judgment twice pronounced by him, after hearing and seeing the witnesses, is correct, and that his report should therefore be confirmed.” The general term, with an exception to be noticed, agreed with t.his view of the case, and, after a modification, affirmed the order of the special term. Upon this testimony this, court would not be justified in reversing the conclusion of the lower courts upon the fact as to the character of the agreement in point of fairness and propriety.

It appears, however, that just as the attorney an^ one whom he had associated with him were about to enter upon, the first trial of the action of ejectment, another counsel appeared for the plaintiff therein, and with their assent, took the leading part in the trial of the action, which lasted five days, and such counsel also argued the various appeals thereafter, and took the same part in the second trial and the subsequent appeals from the - judgment then, obtained. The services of the counsel were most meritorious and valuable, but they were not rendered upon the re-tamer or request of the attorney making the agreement with Mrs. Hynes, and, so far as appears, were wholly separate and distinct from his' contract with her. The general term held that whatever sums were or should be paid this counsel must be deducted from the amount claimed by the attorney, and modified the order of the special term to that extent. We are unable to see the force of the reasoning which led to this result. Undoubtedly the attorney would have to pay out of bis share all expenses of counsel retained by him in the conduct of the cause. He could not make the infants or the mother liable for that expense. It seems equally true that neither the mother, nor any one for her, or as a mere stranger, could retain counsel and charge the expense of his payment to the attorney, without his assent to such arrangement. There is no proof of any such assent, and we think none is implied from the fact that counsel was employed by a third person, and thereafter the attorney consulted with such counsel, and permitted him under such retainer, to take the leading part in the trial and argument of the action. As the evidence shows, what took place in court, while, of course, of the most vital importance, was but a small part of the actual labor performed in the case; and if the attorney were responsible for the payment of counsel out of his share, when such counsel was not retained by him, and when he was ready and willing to go on without him, the amount of his possible compensation might be very seriously diminished, if not entirely wiped out without his consent. Treating with counsel retained by a third person, and permitting him to aid in the trial of and to argue the case, is very far, indeed, from any assent that his services shall be paid for by the attorney instead of the person who retained him.

One other objection is made. There was a sale of vacant lots in Tennessee, and the proceeds of the sale are in the hands of the clerk of the chancery court of the state. Counsel for appellants claims that the attorney is not entitled to his proportion of that fund. We think otherwise. The title of the infants to the property of their late father has been established by these actions, and Tennessee funds have come or are coming to them by reason of that title. Notes were given for the amount of the sale, less ten per cent paid in cash. The sale took place December 29, 1883, and the last notes became due fourteen months thereafter, or in March, 1885. The notes were secured by mortgage on the lands, sold. It is to be presumed, in the absence of evidence to the contrary, that the notes were worth their face, and that they have been paid; for if not it would have been proved, as the referee did not make his report until September, 1885.

The counsel for the infants also claims that the attorney should only be allowed to recover upon filing a waiver by his associate of all claims upon the infants or the widow. In his brief before this court the counsel for the attorney says that he (such attorney) had himself selected counsel who had actually commenced the opening address to the jury when the counsel retained by others appeared As has been already said, counsel employed by the. attorney would have to look to him for compensation, and would have no claim against the estate of the infants or the widow; but we do not think it proper in this proceeding to add the condition asked for.

All concur, except Ruger, C. J., and Earl, J., dissenting; Finch, J., not voting.

The order of the general term should be reversed, and that of the special term affirmed, with costs.  