
    In the Matter of Proving the Last Will and Testament of Thomas W. Evans, Deceased, as a Will of Real and Personal Property. David Keane, Appellant; Horace S. Ely, Proponent, and Others, Respondents.
    
      Agreement between an attorney and client as to the former’s compensation—when it creates a lien upon the recovery, but does not constitute an assignment of any part of the subject of the action.
    
    An agreement entered into between a party interested in the estate of a testator and an attorney employed by him to contest the will, by which the client agrees “ to pay to the said Keane (the attorney), 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, * * *. either as the result of legal proceedings, compromise or settlement or howsoever, and for better securing the compensation of the said Keane aforesaid, said (party) 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, * * ":i 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, * * * as it may be made to appear and be,” said agreement further providing that the client “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 interest,” is not an assignment to the attorney of a distinct and separate part of the estate, which will constitute him a party interested in the estate within the meaning of paragraph 11 of section 2514 of the Codo of Civil Procedure; nor will it, in the event of the client’s compromising the contest and withdrawing his objections to the probate without the consent of his attorney, entitle the latter to intervene and file objections to the probate on his own behalf.
    
      Semble, that the attorney’s rights under such an agreement are limited to a claim against his client secured by a lien upon any sum which the latter may obtain from the estate as a result of the litigation or of a compromise.
    Appeal by David Keane from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 27th day of February, 1901, admitting to probate a paper purporting to be the last will and testament of Thomas W. Evans, deceased, and also from an intermediate order entered in said Surrogate’s Court on the 4th day of February, 1901, denying the application of the said David Keane for leave to intervene in the proceeding and file objections to the probate.
    
      
      J. Noble Hayes, for the appellant.
    
      Wolcott G. Lane, for the respondent Ely.
    
      Stephen 0. Lockwood, for the respondent Crane.
   O’Brien, J.:

The essential facts underlying the questions urged upon this appeal were presented and discussed in the opinion in Matter of Evans (58 App. Div. 502). The agreements therein referred to, and which form the basis of all the appellant’s claims, are two nearlv identical instruments, one made with Thomas B. Enos and the other with Juliette C. Henderson and John R. Enos.

These persons, after the agreements were made, and, as it appears, unknown to Mr. Keane, joined with others interested in the estate in an agreement of compromise by the terms of which the objections which had been filed by Mr. Keane, representing them, to the probate of the will were to be withdrawn and the will admitted to probate. Motion was thereafter made by the proponent to vacate, overrule and withdraw all objections, which motion was granted and from the order thereupon entered Mr. Keane appealed to this court, which affirmed the order. (Matter of Evans, 58 App. Div. 502.) Meanwhile Mr. Keane had moved for an order to show cause for leave to file objections to the probate of the will on his own behalf, as a person interested in the estate, which motion was denied, and from the order entered thereupon he now appeals. On the day of the entry of that order the proponent moved to proceed with the probate of the will as an uncontested will, which was opposed by Mr. Keane on the ground that his appeal, then pending from the order striking out the objections, stayed all proceedings in the Surrogate’s Court. The motion was granted, however, and an order entered placing the matter on the uncontested calendar. Thereafter probate was allowed, and from the final decree so admitting the will to probate, as well as from the intermediate order denying Mr. Keane’s motion for leave to file objections on his own behalf, he now appeals.

The appellant’s claims on this appeal are -thus stated by him:

Ewst. That, although the Surrogate’s Court may have had no power to refuse proponent’s application to discontinue the contest upon the fraudulent consents of the contestants, that, nevertheless, the appellant was a party in interest, under sections 2514 and 2617 of the Code, to whom the Code gave an absolute right to appear and contest the probate of this will, and that right the Surrogate’s Court had no power to deny, when the party in interest sought to avail himself of his right by the appropriate procedure.
. “ Second. That the final decree is an absolute nullity, having been rendered while the appellant was stayed and the Surrogate’s Court ousted of its jurisdiction by the appeal then pending in this court, and that the same appears upon the face of the record and vitiates the decree, and that the appellant being a party in interest may avail himself of it at any time while he has standing to be heard as an appellant or otherwise in any court through which the said proceeding must pass to final adjudication.”

On the other hand, the respondents among other things contend that the present appeal is a nullity in that the appellant, had he desired to raise the question as to the decree, should have moved to set aside the decree and then appealed from the order denying it; and that as to the stay which, he urges, affected the validity of the entry of the decree, such stay applied only to proceedings under the order appealed from.

Without, however, deciding these questions of practice, we think this appeal on its merits must be disposed of by the consideration and determination of a single underlying question.

The entire argument of the appellant, as to his rights under the agreements, as to whether he could file objections to the will on his own behalf and whether he could have a stay of all proceedings upon this appeal, is essentially founded upon the basic contention that under the agreements there was assigned to him a "fixed and aliquot part of the estate which, in every stage of the proceedings, entitled him to be heard, because as assignee of part of the estate he was a party interested. If this should be resolved favorably to the appellant then all the rights which he is contending for would follow as matter of course; whereas, if the contrary view be taken, then, although he has his remedies, they are other and different than those which should be accorded to him as a person directly interested in the estate itself.

We are thus called upon to construe the agreements which, although differing slightly in phraseology, are essentially the same; and, therefore, what we have to say with reference to one applies with equal force to the other. The question presented is not a new one in this court, having been directly involved upon the former appeal; but upon a re-examination of it, which we are in duty bound to make, we find no additional reason suggested, nor anything which would lead us to depart from our former decision, and to it we must adhere, although then and now regretting the extent to which it tended to deprive the attorney of a more direct remedy to obtain the compensation which he appears to have fairly earned. We then held that the attorney did not obtain under the agreements, regard being had to the language employed, an assignment of a separate and distinct part of the estate to the extent of the percentage specified, so as to obtain an absolute right and ownership in such portion of the estate, for which he could sue and recover on his own behalf.

The agreements recite that the party of the first part (the client) agreed 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, * * * either as the result of legal proceedings, compromise or settlement or howsoever, and for better securing the compensation of the said Keane aforesaid, said (party) 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, * * * 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, * * * as it may be made to appear and be.” The agreement further recites that the client “ 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 interest.”

Much stress is placed upon these last words, “ his interest,” the insistence being that this but permitted the client to settle what interest he then had, which would exclude, because he had parted therewith, what he had given to his attorney. This, however, seems to us to be begging the question, because in the end it all turns upon what interest the client had in the estate which he could settle, and this necessarily depends upon and brings us back to the main controversy as to whether or' not the attorney by assignment became entitled to a separate and severable ownership of an interest in the estate to the extent of eight per cent of what the client possessed.

It is true that the word “ assigns ” appears in the latter portion of the clause above quoted, where it is employed in speaking of the security which the attorney was to have; but this is to be considered in connection with the manner in which his compensation was to be measured, whether by a distinct and separate interest in the estate, or, as the language itself says, by a sum “ equivalent to eight per cent of any amount or value that may come ” from the estate. It was to secure this compensation, measured by what should be received by the client, that the latter assigns eight per cent “ of any sum or value which may come to him, or which he may be entitled to, from or in the estate, * * * 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.”

Our construction of this agreement, that what was intended was that the compensation should be made payable out of the sum ..realized as the result of litigation or compromise, is enforced by referring to two things contained in the clause of the agreement which we have last quoted: First, that therein the payment of the attorney’s compensation is made a “ lien upon the claim or interest ” of the client — thus evincing an intention to the extent indicated of giving the attorney a security or lien in the manner specified upon what the client might realize — and, seoondl/y, that this clause provides that the lien is to be against his (client’s) interest in the estate,” which is the same wording as appears in the subsequent clause of what may be settled by the client.

We think, therefore, that by the instruments it was agreed to pay to Mr. Keane a certain sum as compensation which was to be measured by a part of what should “ come ” to the clients whether by legal proceedings or compromise or otherwise ; and that it was to secure this compensation that they assigned that amount of what they were entitled to or what might come to them from the estate, and made the payment of such sum a lien upon their claim or interest. They further stipulated that they should be at liberty at any time to compromise or settle upon such terms as they should desire as to their interests. To limit this stipulation to an agreement that they should be at liberty to compromise only their interests after deducting what the attorney should receive for his compensation, would, as shown, be an unnatural and forced construction.

Our conclusion, therefore, is that Mr. Keane did not become an absolute owner of any direct interest in the estate by an assignment of a distinct and separable part thereof, and was not, therefore, a person interested in the estate itself so as to entitle him to intervene and tile objections on his own account; but that his rights to compensation were limited to a claim against his clients secured by a lien upon any sum which they or either of them might obtain from the estate as the result of litigation or compromise. From this conclusion it necessarily follows that, as in our view Mr. Keane is not a party in interest under section 2514, subdivision 11, of the Code of Civil Procedure, he was not entitled to intervene and file objections on his own behalf and, therefore, the decree admitting the will to probate and the intermediate order denying him leave to file objections should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Decree and order affirmed, with costs.  