
    Matter of the Judicial Settlement of the Account of Kings County Trust Company, as Executor and Trustee of and Under the Last Will and Testament of Mary Elizabeth Lewis, Deceased.
    (Surrogate’s Court, Kings County,
    June, 1914.)
    Contracts — between executor and attorney for contingent compensation to attorney — payment of counsel fees approved.
    Where by a contract between an executor and several attorneys, providing that the compensation of such attorneys should he contingent upon success in increasing decedent’s estate, it was stipulated “And if upon increasing the said estate the said executor cannot agree as to the amount of compensation to which they may then reasonably he entitled, that the matter shall be submitted to the court for its determination, and the fixing of a proper compensation,” and the services rendered resulted in the recovery of $346,974.09 from trustees under the will of decedent’s father, the payment of $47,600 for counsel fees in the matter is approved.
    Proceeding upon the judicial settlement of the account of Kings County Trust Company, as executor and trustee.
    George Y. Brower (William P. Maloney, of counsel), for accountant.
    Evarts, Choate & Sherman (Joseph H. Choate, Jr., and Thomas T. Sherman, of counsel), for John A. Lewis, Rosetta L. Hodgman and Marion L. Quinn, objectants.
    Horwitz & Rosenstein, for Herbert D. Lewis and Fannie D. Lewis, as administratrix of Thomas Lewis, deceased, objectants.
   Ketcham, S.

An issue is made as to the propriety of the payment by the accountant of $47,600 for counsel fees.

The services for which that sum was paid resulted in the recovery from the trustees under the will of the decedent’s father of $346,974.09. They were rendered under a contract between this accountant and three attorneys, which provided that the compensation of counsel should be contingent upon their success in increasing the estate of the decedent, and further stipulated as follows: “And if upon increasing the said estate the said executor cannot agree as to the amount of compensation to which they may then reasonably be entitled, that the matter shall be submitted to the court for its determination, -and the fixing of a proper compensation. ’ ’,

- It was also -agreed that the compensation so payable should be equally divided among the counsel so retained.

The objectants not only are beneficiaries under the will of the decedent, but are also beneficiaries under the will of the decedent’s father. Their interests under the father’s will were such that, if the fund recovered as aforesaid had been found not to belong to the estate which is the subject of this -accounting, they would have received by the father’s bounty sums substantially equal to those which they now receive from this estate, less the expense of collecting and administering the fund.

They, thereupon, argue that the endeavors of the accountant to obtain the fund were selfish and injurious and that the value of the services rendered in furtherance of such endeavors should not be based upon the amount of the recovery.

Of course, it was the duty of the accounting executor to assert his claim to these moneys, and, in the light of final success, it was still in the path of duty when, after an adverse judgment, it pursued its claim to the Court of Appeals. Equally, of course, its persistence (since the end crowns the work) should not be rebuked because the beneficiaries of its act forbade its continuance in duty.

The first -object of a trust is to confine and disappoint the beneficiary as to the disposition and management of the trust. If it were not intended to exclude him from interference or suggestion with respect to the corpus of the trust no trust would be made.

As it turned out, these beneficiaries never had and never could have had any lawful right to any part of the fund which is now in part reduced to their enjoyment if the accountant had not secured it. Since the conduct of the accountant was right, there can be no rule applicable to a like recovery from a stranger under like doubts and difficulties which will not equally control in this case.

The contract of retainer, construed most favorably for the objectants, contemplated that the counsel should receive for successful services such compensation as should be reasonable in view not only of the circumstances generally but of the contingency that they would be without recompense if their services were without value. True, it was agreed that the compensation should be fixed by the client, but that stipulation, whatever might be its effect between the parties, left for the court the determination whether, by the standard stated supra, the amount paid was fair.

It is found without hesitation that the services were reasonably worth the sum paid.

Among the suggestions against this item, it is claimed that at least one-third thereof should be disallowed, since one of the gentlemen to whom such one-third was paid became a Supreme Court justice while the litigation was undetermined.

The contract was for an entire fee payable for success in the litigation. It might have been defeated for failure of consideration, but the disability of one of the counsel, though conceivably it might have wrought such failure, cannot bring about that result in a course of service where there was nothing to be obtained which was not recovered. Since the contract was fulfilled, and the fee was earned, neither the accountant nor those whom he represented were concerned with its disposition.

The account as stated is approved.

Decreed accordingly.  