
    In the Matter of Proving the Last Will and Testament of Thomas W. Evans, Deceased, as a Will of Real and Personal Property. Horace S. Ely and Others, Respondents; David Keane, Appellant.
    
      Attorney and client—an agreement as to compensation in probate proceedings in the Surrogates Court — not enforced by allowing the attorney to prosecute objections after a settlement made by his client — liability of both the client and the executors to him.
    
    An attorney was employed to oppose the probate of a, will in a Surrogate’s Court under a retainer by which his client agreed to pay him, “ as compensation for the services rendered and to be rendered, á sum equivalent to eight per cent of any amount or value that may come to him from the estate of the said Thomas • William Evans, either as the result of legal proceedings, compromise or settlement, or howsoever; and for better securing the compensation of the said Keane aforesaid, said Thomas Enos for himself, his heirs and executors, hereby assigns eight one hundredths of any sum or value which may come to him or ■which he may be entitled to from or in the estate of the said Thomas William Evans, and the payment of such sum is likewise hereby made a lien upon the claim or interest of the said party of the first part against his interest in the estate of his uncle! Thomas William Evans,, deceased, as it may be made to appear and be. * * * It is further, agreed that the party, of the first part shall be at liberty at any stage of the case, either before, during or after suit ‘ commenced, to settle or compromise upon such terms as he may desire as. to his interests.”
    The client, without the knowledge or consent of the attorney, - withdrew his objections .and discontinued the contest.
    
      Held, that the attorney was not entitled, under section 66 of the Code of Civil Procedure, as amended by . chapter 61 of the Laws of 1899, to prosecute the objections for his own benefit, even though the executors had notice of the attorney’s claim at the time the settlement was made.
    
      Semble, that the same would be true even if the agreement did not secure to the client the right to settle the case.
    That the- compromise of the contest did not destroy the attorney’s lien or affect the ’ right which he obtained under the assignment of eight per cent of the recovery ;
    That the client and the executors might both be liable to the attorney in a proper action..
    Appeal by «David Keane, a person interested in the estate of Thomas W. Evans, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 16th day of January, 1901, granting a motion made by Horace S. Ely, the proponent of the will of Thomas W. Evans, deceased, overruling objections filed to the probate of said instrument.
    Dr, Thomas W. Evans, an American dentist, died in Paris, November 14, 1897, leaving a large estate situated in France, Pennsylvania and New York, the greater part consisting of real property in the city of Paris. At his death he left him surviving as heirs at law and next of kin the various persons whose consents were attached to the petition for the discontinuance of this proceeding. Shortly aftér Dr. Evans’ death two. wills were offered for probate in the courts of France, and subsequently one of them was presented in the city of Philadelphia, where it was in the first instance admitted to probate, and a copy thereof was also offered for probate in the Surrogate’s Court of this county, to which objections were filed in behalf of Thomas B. Enos and others by David Keane as their counsel. The retainer of Mr. Keane for certain of the next of kin and heirs at law was accomplished by separate instruments Or “agreements,” and, these being.identical in form, one only need be referred to, which, upon the question before us, contains the following material provisions:
    “ Now, therefore, in consideration of the services rendered and to be rendered by the party of the second part to the party of the first part in contesting the validity of this will and opposing the probate thereof and the powers and agreement of the said Keane hereby made to act as the attorney and counsel of the said Enos in contesting the said will and in conducting and directing all negotiations that may be deemed advisable by him leading to a settlement or compromise of the matter in dispute as aforesaid, the said Thomas Enos agrees to pay to the said Keane, as compensation for the services rendered and to be rendered, a sum equivalent to eight per cent of any amount or value that may come to him from the estate of the said Thomas William Evans either as the result of legal proceedings, compromise or settlement, or howsoever; and for better securing the compensation of the said Keane aforesaid, said Thomas Enos for himself,’ his heirs and executors, hereby assigns eight one-hundredths of any sum or value which may come to him or which he may be entitled to from or in the estate of the said Thomas William Evans, and the payment of such sum is likewise hereby made a lien upon the claim or interest of the said party of the first part against his interest in the estate of his uncle, Thomas William Evans,, deceased, as it may be made to appear and be. * * * It is. further agreed that the party of the first part shall be at liberty at any stage of the case, either before, during or after suit commenced,, to settle or compromise upon such terms as he may desire as to his; intérests.”
    Under the agreements, Mr. Keane proceeded to render services,, and has continued to render such down to the present time; and. his efforts, in connection with those of other counsel, resulted in an offer of settlement from the executors of the estate of a large sum of money, which offer, however, was subsequently withdrawn and reduced almost one-half. To the acceptance of the reduced amount. Mr. Keane was opposed. Thereafter, without his knowledge or consent, an attorney in Philadelphia,, representing some of the heirs, at law, placed himself directly in communication with Mr. Keane’sclients and, with the assistance of the counsel of the executors, negotiated and procured an agreement of settlement, upon which are-based the consents to discontinue this proceeding and all other proceedings. Mr. Keane did not know of the settlement or its terms-until some months later, when a motion, founded upon the agreement of settlement, was made to vacate, overrule and withdraw all. objections to the probate of the will. He then appeared and. opposed the motion, which, however, was granted, and from the. order thereupon entered this appeal is taken.
    
      J. Noble Hayes, for the appellant.
    
      Wolcott G. Lane, for the proponent, respondent.
    
      Alexander B. Grane, for Edward A. Crane, individually and as-executor, respondent.
   O’Brien, J.:

The ground upon which Mr. Keane opposed the motion to discontinue the contest against the probate of the will was that he was-a party in interest by virtue of the agreements he had made with his clients, under which he secured a definite portion of their respective shares in the estate, which was something more than his-right's as attorney of record, and was in addition to the attorney’s. lien by virtue of section 66 of the Code of Civil Procedure: and that the discontinuance sought, containing no provision for his protection, was a fraud on him and upon his clients. That he had rendered valuable services to the clients; that the executors had notice of his agreements with them, and that the settlement was arranged without his knowledge or consent, are not seriously disputed, nor is his claim that under the agreement he held an assignment of his clients’ respective interests to the extent of eight per cent.

In actions, and equally in special proceedings since the amendment to section 66 of the Code of Civil Procedure (Laws of 1899, chap. 61), an attorney has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosoever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order.” Pursuant to this section, it has been held that where an attorney institutes an action, under an agreement with his client, by which he is to receive a certain amount of the recovery, and the defendant settles with the plaintiff without the knowledge of the attorney, the attorney has the right to continue the action and proceed to judgment for the protection and enforcement of his lien, either by default in case no answer has been served, or in in the usual way if the action is at issue. (Peri v. New York Central R. R. Co., 152 N. Y. 521 ; Pilkington v. Brooklyn Heights R. R. Co., 49 App. Div. 22 ; Rochfort v. Metropolitan Street R. Co., 50 id. 261.)

Whether the same right is reserved to the attorney in the proceedings to contest the probate of a will in the Surrogate’s Court, and to that end prevent the withdrawal of objections by the clients to the probate or be allowed to continue the contest on his own behalf, is the question presented for our determination. In reaching á conclusion on this point it is unnecessary for us to consider whether the settlement made was fraudulent, collusive or improvident, because these were questions which the surrogate had no jurisdiction to determine. The authority relied upon by the appellant (Matter of Regan, 29 Misc. Rep. 527) in support of the ruling that the surrogate has power to adjudicate upon allegations of fraud and collusion between the executors and the heirs, or between the executors' and the attorneys for the heirs, was reversed in Matter of Regan (58 App. Div. 1). Therein the expression of the Court of Appeals in Sanders v. Soutter (126 N. Y. 193) was quoted and followed : That “ the Surrogate’s Court possesses such jurisdiction only as is expressly conferred by statute, or necessarily implied from the power conferred, and that does not include the power to annul or set aside a release made between parties interested in an estate and the executors on the ground of fraud. In order to obtain such relief, resort must be had to a court possessing general equity powers and jurisdiction.” (See, also, Matter of Randall, 152 N. Y. 5,08.) In this latter case, the surrogate in an accounting- proceeding, set aside an assignment on the ground of fraud ; and the Court of Appeals, after discussing the authorities, says: “ They establish the principle that the general powers of a court of equity do not belong to a Surrogate’s Court. * * * When, however, the validity of the assignment is attacked on the ground that it was procured by fraud, a question is presented requiring for its determination the general power of a court of equity and in some cases the trial of issues by a jury.”

As we read the authorities, therefore, the surrogate was without power to determine the questions of fraud, collusion and improvidence charged -against the fairness and validity of the agreement of settlement. It follows that we must consider the rights of the attorney unaffected, injuriously or beneficially, by these charges; and we must also keep in mind the distinction between the character of the lien acquired in an action and one in a special proceeding. (Matter of Lexington Avenue, No. 1, 30 App. Div. 602 ; affd., 157 N. Y. 678.) Until the amendment of 1899 (supra) an attorney acquired no lien in a special proceeding under section 66 of the Code of Civil Procedure. -This amendment -or law took effect September 1, 1899, after the commencement of this proceeding, which, it appears, dates from June 23, 1899.

If, however, we assume that Mr. Keane is- entitled to the benefit of the amendment by reason of services rendered after the. amendment became a law, the conclusion, we think, is the. same. His clients, without his consent, had the legal right to settle, irrespective of the express provision in the agreements which accorded, them that right. In Lee v. Vacuum Oil Co. (126 N. Y. 579, 587) the court says : “ We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own cause and to determine when the litigation shall 'cease and how far it shall be extended.”

Not only, therefore, was a proper construction given by the learned surrogate to the provision in the agreements here as to the right of the clients to settle, but, in the absence of any such provision, their right to do so without the consent of their attorney finds support in the decisions; and upon this branch of the subject we must hold that, both under the agreements and under the law aside from the agreements, Mr. Keane’s clients were legally entitled to settle .without his consent.

The agreements, we think, gave to Mr. Keane an assignment to the extent of eight per cent of any sum which his clients might realize upon the settlement; but such an interest, whether by agreement or by virtue of an attorney’s lien, cannot be .enforced by allowing him to prevent the withdrawal of the objections so as to enable him to prosecute them for his own benefit. In no sense did he become substituted in the place and stead of his clients; nor are his rights such that, to the detriment of all the others- interested in the estate, he may be permitted to continue the litigation for the protection of his interests when these may be secured in another way without injury to others. Having agreed that his clients might compromise and settle, it would be going further than any adjudicated case to hold that in a contest over a will the attorney could prevent the settlement arranged between the parties. Yet this, would be the result if he were permitted to continue the litigation for the enforcement of his claim.

Referring to section 66 of the Code of Civil Procedure, it has been held, with respect to actions, that “ this provision does not prevent parties from settling and releasing judgments, suits and contro. versies.” (Poole v. Belcha, 131 N. Y. 200, 203.) And in Peri v. New York Central R. R. Co. (supra) it is said : The client is still competent to decide whether he will continue the litigation or agree with his adversary in the way.” Settlements by clients, as we have already said, cannot destroy the interests of an attorney, whether-secured by agreement or under an attorney’s lien. The distinction,, however, must always be observed between the attorney’s rights and the manner of their enforcement. Thus in actions it has been held that the court will not allow the attorney’s lien to be enforced in a. summary way upon motion, but that the relief is to be obtained in the usual manner. (Pilkington v. Brooklyn Heights R. R.. Co., supra; Rochfort v. Metropolitan Street R. Co.,, supra.)

If we assume, therefore, without deciding, that the Surrogate’® Court has power to enforce an attorney’s lien, it by no means‘follows, that the attorney will be permitted to enforce it in the manner he. may elect, the question of the remedy being one over which the-court has control. In an action ordinarily it is proper that the-, attorney should be allowed to continue to judgment, for not only is. this the most direct and adequate remedy to enforce his lien, but it. can be pursued without interfering with the legal rights of others. To protect the attorney’s interests here, it is not essential that he. should prevent the withdrawal of the objections and then intervene, and contest the will in his own behalf. As stated, the clients had the. right to make the settlement without his consent, and the executors,, even with knowledge of his claim, had the same right. Having-made the settlement, either or both may in a proper action or proceeding be liable to the attorney; and such liability will undoubtedly arise when the time to pay over the money to the clients is at hand., Here the settlement did not destroy the attorney’s lien or affect the right which he obtained under the assignment of an interest to the extent of eight per cent of the recovery; for this lien, notwithstanding the settlement, remains in full force and effect.

. All we' are now concerned with' is the correctness of the. surrogate’s determination that the attorney had no right to prevent the. withdrawal of the objections to the consent. Clearly, the attorney could not file objections in his own behalf; for under the agreement with his clients, whereby he was assigned^ eight per cent of their-interests in the estate, there was no severance of the eight per cent, from their respective interests, nor an assignment to the attorney with power to settle and adjust such severed interests. The attorney is entitled to receive a sum equal to eight per cent of any amount which may come to the clients from the estate either as the result of legal proceedings or of a settlement; but this does not give him a right to intervene and contest the will in his own behalf.

Under the agreement and by law, as we have said, the clients were given the power to settle and compromise their interests, and this necessarily involved the privilege of discontinuing any action or proceeding. But such settlement did not impair or destroy the attorney’s lien. Whether we consider his right, however, from the standpoint of a lien or under the assignment, he occupies no such position as would enable him to destroy his client’s ability to settle. Courts in the effort to support and enforce an attorney’s claim in a proper and meritorious case must, in granting the remedy, see to it that the remedy is consistent with the rights of others. Here the claim asserted by the attorney is just and proper, and the courts would be warranted in aiding its enforcement in any way not inconsistent with others’ interests. No doubt authorities can be found where, to prevent an unjust advantage being taken of an attorney by a client, drastic remedies have been allowed; but, as well said in the unreported memorandum of Surrogate Ransom, in the lístate of Peter Wittner, filed August 11, 1890, these cases “ are not probate causes. In respect to the latter the Surrogate has special duties and powers imposed upon him by statute which vest in him the control to a great extent of the proceedings, irrespective of the wishes of the parties or their attorneys. In such proceedings it is-not in the power of the attorney, in the assertion of any lien he may claim against Ms client, to prevent the latter from withdrawing his objection to probate, nor has he the right to insist in proceeding with trial of the same after such withdrawal, as the rights and interests of the other parties would be affected, not merely incidentally as in ordinary litigations, but directly and - very seriously by the recognition of the procedure which the applicant asks the court to permit him to pursue.” (See N. Y. L. J., Aug. 12, 1890.)

This clearly points out the nature of probate proceedings and the reasons why an attorney, even in the enforcement of a just and meritorious claim or lien, should not be permitted to continue a contest or prevent what the policy of the law always favors, namely, the speedy settlement of estates. For this reason, as well as those given by the learned surrogate, we think that the order appealed from should be affirmed, with costs.

. Patterson, Ingraham and McLaughlin, JJ., concur.

Van Brunt, P. J.. (concurring):

I concur upon the ground that the appellant was precluded.from objecting to the settlement by the terms of the agreement referred to in the opinion.  