
    In the Matter of the Administration of the Goods, Chattels and Credits that Were of Nancy Holland, Deceased. Frederick F. Pruyn, as Committee of the Person and Property of De Witt C. Holland, an Incompetent Person, Appellant; Henry A. Howard, as Administrator, etc., of Nancy Holland, Deceased, Respondent.
    Third Department,
    January 8, 1906.
    Attorney and client — contract between attorney and client closely scrutinized — agreement giving attorney one-half of sum sure to be recovered — appointment of attorney as administrator of client’s deceased wife — when accounting by such administrator set aside.
    Owing to the fiduciary relations between attorney and client, the court will scrutinize closely all transactions between them and the burden is on the attorney to show that the contract with his client was fair.
    Authorities collated.
    
      When an attorney has had opportunity to examine a will under which his client’s deceased wife was a beneficiar^, and. under which will" said wife must in any event take either one-seventh as legatee or one-sixth as heir and next of kin, and with such knowledge has represented to his client that success in recovering the wife’s share was doubtful, and thereby has obtained a contract ■ giving him one half of the sum recovered, and has procured himself tobé „ appointed administrator of the-wife’s estate, and when the net .result" of his accounting as such administrator is that as attorney he has received §00,776, while his client has recei ved $16,467, and the estate has been charged with $6,000 paid to another.attorney, the decree -on such accounting will be vacated on the . petition of a committee of the client who has become insane and such administrator will he ordered .to account anew with notice to the committee. •
    Appeal by Frederick F. Pruyn, as committee of the person and property of De Witt G, Holland, an incompetent person, from an order of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the-4th day of September, 1905, denying the appellant’s application for leave to open and vacate two decrees of said Surrogate’s Court, one dated June 21, 1904, and the other dated March 1, 1905, each purporting to settle the account of Henry A. Howard, as administrator of the goods,• chattels and credits of Haney Holland, deceased.
    
      Mc Arthur & Starbuck [J. A. Kellogg and J. H. Barker of counsel], for the appellant.
    
      John L. Hill, for the respondent.
   Chase,. J.:

An attorney at law is a sworn officer of the court. Someone has said that an attorney’s duty is well expressed in the, “ Institutes ” i® these words: “ The' precepts of the law. are, to live honestly, to hurt no one, to give to every one his. due.” (Just. Inst. [Cooper’s ed,] bk. 1, tit. 1, § 3.)

In Story’s Equity Jurisprudence (13th ed. § 310.), referring to the" relation of client and attorney, it is said: “It is" obvious that this-relation must give rise to great confidence between the parties and to very strong influences over the actions.and rights and interests of the client. The situation of an attorney or solicitor puts it in.liis po.wer to avail himself not only ,of. the necessities of. his." client,,.-but of This good nature, liberality, and 'eredulity to obtain undue advantages;bargains and-gratuities. Hence, the law with a wise providence not only watches over all the transactions of parties in this predicament, but it often interposes to declare transactions void which between other persons would be held unobjectionable.”

Owing to the confidential and fiduciary relations between an attorney and his client, and to the influence of the attorney over his client growing out of that relation, courts of law and especially of equity scrutinize most closely all transactions between an attorney. and his client. ,

• To sustain a transaction of advantage to himself with his client, the attorney has the burden of showing not only that he used no undue influence but that he gave to his client all the information and advice which it would have been his duty to give if he himself had not been interested and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger. (4 Cyc. 960; 3 Am. & Eng. Ency. of Law [2d ed.], 332, 333.)

In Nesbit v. Lockman (34 N. Y. 167) the court, referring to a transaction between attorney and client, say : “ The transaction is scrutinized with the extremest vigilance and regarded with the utmost jealousy. The clearest evidence is. required that there was no fraud, influence.or mistake; that the transaction was perfectly, understood by the weaker party.”

In Hitchings v. Van Brunt (38 N. Y. 335) the court say: “ The agreement upon which this action is brought is one between an attorney and his client, providing for a large compensation upon the success of the former in conducting a cause. * * * In considering such a transaction it may not perhaps, be necessary to go to the extreme length of some of the cases which hold that where a security is thus taken, the absolute presumption of , unfairness arises wherever the relation of counsel and client exists.” And the court further say that it is proper to invoke the well-set'tled doctrine announced by the court in Nesbit v. Lockman (supra).

In Sheehan v. Erbe (103 App. Div. 7) the court say: “ Where it appears that an attorney is consulted to éxtricate a person from his difficulties, that the relation commenced because of the position held by the attorney, and the attorney undertakes to act for the person consulting him, the relation of attorney and client exists; and when under these circumstances an attorney accepts a transfer of property from his client, the burden is upon the attorney,, when the transaction is assailed, of establishing the fact that the transfer was a. fair one and that his client understood its terms and conditions.”

In Turnbull v. Banks (22 App. Div. 508) an old and feeble woman, ignorant of business and its methods, wrongfully supposed her nephew was an equal owner with her in certain premises. The nephew commenced an action of partition against her, and also to establish a claim in connection with the property which, if successful, would' deprive her of all interest in it. She made an agreement with an attorney who was familiar with the title and knew that the nephew could not maintain an action for partition, by which in consideration of the' execution by the old woman of a mortgage lipón the premises for’one-half of their value, hq undertook to defend the action. It. was held that the, attorney was not entitled to assert the mortgage for any greater amount than the fair value of his services.

Keeping in view the duty of an attorney as a sworn officer of the court and of the rules applicable in the consideration of transactions, between an attorney and client, we will review the facts before us as briefly as consistent with a proper understanding of the case.

Haney Holland, who at the time of her death and for many years prior thereto had been the wife of De Witt 0. Holland, died on the 25th of March, 1902. She was a sister of one George W. Lee, who died in 1901, leaving a last will and testament, the, terms of which are quite fully set forth in Matter of Coolidge (85 App. Div. 295).

Forest T. Lee, the son of George W. Lee, died February 16, 1902, intestate and without leaving’ a widow or descendant: Haney Holland and her husband, De Witt O. Holland, were very poor. After the death of George W. Lee it was known that. Haney Holland was a legatee under his will,' and a proceeding was commenced to have her declared an incompetent' person. Henry A. Howard, an attorney and counselor at law, appeared in that proceeding for Haney Holland and for De Witt C. Holland, her husband. The proceeding resulted in the said Haney Holland being declared an incompetent person, and committees of her person and estate were appointed. De Witt 0. Holland was wholly uneducated, not being' able to read or write'; he was a laboring man, and never accustomed to business transactions. The 'appellant’s affidavits assert that he was a man of “low mentality ” and of “ weak mental powers.”- The respondent’s affidavits assert' that his memory was good, his “ states menta fairly accurate, and his * * * , conduct * * * quite intelligent,” and that he “ exhibited'fair intelligence for one in his station in life, and was clear in his statements; ” that he was “ a man of fair intelligence; his conversation was intelligent and he seemed’ to fully comprehend all matters on which we conversed; ” that “ he was a man of ordinary capacity, mentally able to understand and comprehend affairs as well as the average man in his station in life.”

Upon the death and before the burial of his wife he went to the executors of the will of said Lee and asked for money to defray-her funeral expenses and to clothe himself to attend the burial, but they refused to advance him any money. He was told by two persons with whom he conversed to go to said Howard, which "he did, and Howard provided for the burial of his wife and secured for him clothing so he could attend the funeral, and he told Holland that when the services Were over to come and see him again. After the burial of his wife Holland went to Howard and gave him a power of attorney to act for him in the matter of his claim to his deceased wife’s share in the estate of said Lee, .after which Howard made an examination of' the will of said Lee. Six days after the death of Haney Holland, and on March 31, 1902, Holland having applied to Howard for legal advice respecting his claim to a part of the residuary estate of said Lee, an agreement was made between, Holland and-Howard which Howard states as follows: “This respondent undertook to prosecute "and enforce Said claim and furnish all necessary means to prosecute said claim, which expenses should be repaid ■ to him by said Holland upon the understanding and agreement made March 31,1902, that one-half of the money obtained from said executors On said claim as the result of his effort should be received and retained by him as compensation for his services and for the note of such contemplatéd expenditures; that said agreement contemplated that this respondent should become the administrator of said ■ goods, chattels and. credits, and that his services as such should be compensated out of his said share of such collections, but that he should have full power and authority to retain and pay an attorney and counsel from the contemplated ultimate' share of said De Witt . C. Holland when the service of such attorney and counsel should become reasonable or necessary.’-’

At the time of malting the alleged agreement. Howard told Holland that the executors of said Lee claimed that Holland was not entitled to share in said estate and that their claim was so well sus- . tained by the opinion -of ad vérse counsel that his claim- was extremely doubtful and difficult to establish., ■ After making the alleged, agreement Holland made a petition to the Surrogate’s Court for the appointment of an'administrator of the goods, chattels and credits of Haney Holland, deceased, in which petition he stated that she died entitled to personal property not exceeding $50,000 in value and real -property not exceeding $3,000 in value and asked that said Howard be'appointed administrator. Howard was appointed sole administrator-of the goods, chattels and. credits of Haney Holland, deceased;, although he was neither one of her next of kin nor a creditor of her estate... (See Code Civ. Proc. § .2660.) The appointment was made June 11, 1902. The executors of said Lee subsequently commenced a proceeding for art accounting in which said Howard as administrator was' made a party. . Tn that proceeding Howard appeared by one Sturges as counsel and the claims of the parties thereto regarding the construction of said will were presented and-a decree was entered' December 8, 1902, in favor, of the contention of -the said administrator. An appeal was taken from said decree to this court where the decree was affirmed in June,'1903. ■(Matter of Coolidge, supra.) An appeal was taken from the judgement of affirmance to' the -Court of Appeals where the same was affirmed'January 5; 1904. (Matter of Coolidge, 177 N. Y. 541.)

On the 13th day of September,. 1902, said De. Witt O. Holland was on the certificate of two physicians in lunacy found .'to. be a lunatic and he was sent to. the State Hospital for the Insane at Dtica. He remained there for several months and was then discharged. . On September 19,1903, he was again on a like certificate found to be a-lunatic and he was-sent; to said 'hospital for the insane where he remained until about the middle of June, 1904. On December 15,1902, the executors of said Lee, notwithstanding.their appeal to this court from the decree of December- 8, 1902, paid to - said Howard- as administrator on account of his share in said éstate / 1 $15,559.45, and ,on May 2, 1904, they 'made, another- payment to said Howard as administrator of $7,047.85. Within a week after s tid Holland returned from the insane asylum the second time and on or about the 21st day of Jjnne, 1904, said Howard appeared in the" Surrogate’s Court with an intermediate account of his proceedings, and without a petition or a citation, but on the consent of said Holland in open court, a decree was entered as in an intermediate accounting. The account showed the receipt by said Howard of said two payments from the executors of said Lee and $480.14 interest thereon. It credited himself with one-half of the amounts received from the executors of said Lee, also with $100 paid a surety company for signing his bond as administrator, $134.50 funeral expenses, $2,000 paid Sturges for Ifegal services and some small items paid for and advanced to Holland. The decree provided that the balance of $9,072.64 be paid to Holland as his share of the amount thus far collected by said Howard. ■

Ho vouchers from himself nor any evidence of the agreement between Howard and said Holland were filed. The $9,072.64 was placed by Howard in a bank in the name of said Holland. On February 20, 1905, the executors of said Lee paid to Howard as administrator the further sum of- $23,395.29. On the 1st day of March, 1905, the administrator again appeared in the Surrogate’s Court with an account showing said payment to him on February 20, 1905, and crediting himself with $11,472.39, one-half thereof, also with $4,000 paid to the estate of said Sturges for legal services,-a small amount advanced to Holland, $450.01 retained to pay the transfer tax and the balance of $7,394.39 to said Howard. Ho voucher from himself nor any evidence of the agreement between Howard and Holland was filed.- Hpon the consent of said Holland'in open court a decree was entered as on a final settlement of an account expressly relieving Howard from all liability to any person. At the time of said final decree, as well as said intermediate decree settling, the account of said administrator, the administration of the goods, chattels and credits of said deceased had not been completed and there remained an unsettled balance due said Howard as administrator from the estate of said Lee and other claims i remained uncollected, and the transfer tax, on the estate of Haney Holland had not been paid. Said balance of $7,394.39 was also placed in a bank in. the name of Holland by said Howard.

A short time . after the decree was entered,. March 1, 1905, an application was made to have said Holland declared an incompetent person, and lie was duly adjudged an incompetent person upon the inquisition of a jury, and on April 12, 1905, the inquisition was in all things confirmed and the petitioner herein was- duly appointed committee of the person apd estate of said Holland.

Since the, decree of March 1, Í905, purporting to.finally séttle the estate of said Haney Holland said Howard has received for said estate $4,501.05, and there remainsuncollected a balance from thé estate of said Lee, the amount ¡of which does not appear.

Upon the appointment of the petitioner as committee of the person and estate of the said Holland he made this application to. set aside the decrees. ,

The said administrator received up to the time of the decree of March 1,. 1905, $46,002.5.9, and he has since received $4^501.05. - He has retained for himself from the amounts received up to the time of said decree $22,176.03 besides paying from the remainder $6,000 for legal services. Said Holland has received $16,461,03., ' Howard is willing to divide the $4,501.05 in his hands in equal shares between said petitioner as committee of Holland and himself.

There was sufficient uncertainty in the provisions of the will , of said Lee to justify his executors in refusing to distribute the residuary fund without the direction of. the court in a proceeding or action in which the parties interested could all be present and bound thereby. Upon the death of Haney Holland it was necessary that . an-administrator of her goods, chattels and credits should be appointed, and the position taken by the executors of the estate of said Lee made it necessary that such administrator should be represented by competent counsel on the settlement of the.account of such executors and the construction of said will. The relation of De Witt C. Holland to and his rights in the residuary estate of said Lee are set forth in Matter of Goolidge (supra). The opinion there recorded is on an appeal from the decree of the Surrogate’s -Court on the settlement .of the account of said executors.

The only question relating to-the construction of said will involv-. ing any considerable amount is the question discussed in- Matter of Goolidge (supra) as to'the time when .the residuary estate' vested .in the next of kin! of George' W. Lee, deceased.- Howard, being a lawyer of many years experience, examined the will before 'he entered into the alleged agreement with Holland and knew that if the will was construed as stated in Matter of Goolidge (supra), Holland was entitled to receive one-sixth of the residuary estate of said Lee, being about $50,000, as stated in the petition for the appointment of an administrator of Haney Holland, deceased. It also appears by Matter of Goolidge (supra) that if such construction had not prevailed the residuary clause of said will would have been invalid as an unlawful suspension of the power of alienation.. The court, in construing said will, said: If, as is claimed, he meant when the trustees should divide, or when under the law they were required to divide, such interpretation would make the residuary clause invalid, for. there would then be an unlawful suspension of the power of alienation; that is, a suspension based upon a time limit and not upon two lives in being, and it cannot be presumed that he intended to do' that.”

If the residuary clause of the will of said Lee had been found to be invalid the residuary would have passed to said Forest T. Lee as the only next of kin of said George W. Lee, and as Forest T. Lee was then dead and had died intestate after the death of George W. Lee, the said residuary estate would ultimately have been distributed among his next of kin, viz., his uncles.and aunts. (Matter of Davenport, 172 N. Y. 454.)

When the agreement under which Howard claims' that he performed the services for Holland was made and at the times when Holland assented in open court to the decrees as entered and when he expressed to others his approval of the agreement and arrangement with Howard, he understood as far as lie appreciated his rights that unless the will was construed to give to Haney Holland a direct vested interest in the residuary estate of said Lee from the death of ■ Forest T. Lee as claimed by Howard, he would never receive one cent and Howard would not receive anything for his services or obtain any return for his disbursements.

It appears that Forest T. Lee died leaving seven uncles and aunts, of which Haney Holland was one. The result of the construction of the will, therefore, so far as it affected Holland’s interest in said residuary estate, only interested him to the extent of the difference between one-sixth and one-seventh thereof.

Howard ■ and Holland did not deal on>á plane of equality. Howard, a trained lawyer, could weigh and appreciate the prospects of succeeding in a contention which hag since been sustained in all the courts and also the effect upon Holland’s rights in the" residuary estate if his particular contention as to the construction of said will was not sustained. Holland, an . ignorant and wholly untrained man, even if competent to make an agreement involving so much and growing out' of technical property rights,' did so- without being told more than a part of such rights. It is "not. claimed but that the agreement was made after the fiduciary relation of attorney and client existed between them, and Holland, at least should havé been told and made to understand his legal rights under every possible construction of said'will of Lee. Would Howard as attorney for Holland have advised him to enter into, the agreement with a stranger ? If so, it would have been poor advice. It was a hard bai’gain and the compensation to Howard is out of all proportion to the amount of work performed by him. It now appears that Howard did not take any risk whatever.' Looking at the whole' matter as of March 31, 1902, should a trained lawyer have assumed or have given his client to" understand, that there was- any -material risk about ultimately obtaining for Holland some part of said ■residuary estate of Lee ? "

It is not intended by this opinion to prejudge-a determination - of the rights of the parties in any future of -further proceeding herein, but on the record now before us the order appealed from should^ be reversed, with ten dollars costs and disbursements, and said decrees should be vacated and set aside, and said administratof should be directed to render a new account of his. proceedings as such' administrator, in said Surrogate’s Court on notice to the petitioner herein. . . ' . •

All concurred.

•Order reversed ón law and facts, with ten dollars costs and dis-, bursements, and the decree vacated and set-aside, and the administrator directed to í'ender'a new account of his proceedings as such administrator in the Surrogate’s .Court oh notice to the petitioner.  