
    Robert J. Haire, Respondent, v. Margaret E. Hughes and Others, Executors, etc., Defendants, Impleaded with Joseph J. Hughes, Appellant.
    First Department,
    July 8, 1908
    Attorney and client — contract of retainer construed — assignment of share in legacy — quantum meruit.
    A contract retaining attorneys to set aside the probate of a prior will and to procure the probate of a subsequent will and assigning and transferring to them a part or share of the client’s "legacy or devise ” in the estate of the deceased . to the extent of $10,000 in lieu of compensation for services rendered; does not ■ purport to. assign said sum out of the client's right, title and interest in the estate of the decedent, but only out of the legacy or devise purported to be ■given by the second will.
    Hence, when the proceedings instituted by the attorneys were compromised with their consent and a decree entered denying probate to the later will although it was accepted as a revocation of the prior will, nothing passed under the assignment and the attorneys can recover only upon a quantum 'meruit.
    
    When the complaint seeks only a recovery under the assignment and raises no question as to quantum meruit for services rendered, it should be dismissed.
    The fact that the agreement forbade a compromise or settlement without the written consent of the attorneys is immaterial if, in fact, they gave written consent to the compromise.
    Appeal by. the defendant, Joseph J. Hughes,- from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 6th day of December, 1907, upon the verdict of a jury, and also from an order denying the said defendant’s motion for a new trial made upon the minutes.
    
      
      Charles Lex Brooke, for the appellant.
    
      Harry Eckhard, for the respondent.
   Scott, J.:

The plaintiff is a lawyer; the defendant Joseph J. Hughes, who appeals, is the son of Henry Hughes, who died in 1901, leaving a will, dated August 12, 1895, which had been admitted to probate before the happening of the events that have led up to this'action. Subsequently another paper was found purporting to be a will of said Henry Hughes, bearing date February 15, 1901, a few weeks before the death of said Henry Hughes. By the will of 1895 the appellant was given the income of one-eighth of the estate for life, amounting as estimated by plaintiff to about $2,000 per annum. By the alleged will of 1901 the appellant was given, absolutely, a large share of the estate, also estimated by plaintiff as of the value of $200,000. On March 31, 1904, appellant entered into an agreement with plaintiff and one ISTorman W. Kerngood, also a lawyer, which recited the death of Henry Hughes, the probate of his will, the filing for probate of the alleged will of 1901, the desire of appellant to set aside the probate of the will of 1895, and to procure the probate of the will of 1901, and that said appellant desired to retain the legal services of plaintiff and Kerngood to prosecute such actions and proceedings as they might deem necessary to effectuate appellant’s wishes. Thereupon plaintiff and Kerngood agreed that they would prosecute srjcli actions and proceedings as in their judgment might be necessary to vacate and set aside the probate of said-will bearing date August 12th, 1895, and to have said paper writing bearing date February 15th, 1901, admitted to probate as the last will and testament of said deceased, and to perform such other legal services that may be necessary to entitle said first party (appellant) to receive the legacy and devise bequeathed to him under said paper writing of February 15th, 1901.”

The appellant on his part assigned, transferred and set over to plaintiff and said Kerngood, each a jpo/rt or share of his legacy or devise in the estate of said decedent to the extent of $10,000, “ which said assignment it is agreed shall be taken and accepted by plaintiff and said Kerngood, in lien of all compensation for services rendered under this' agreement.” It was further agreed that the assignment should not be affected, altered or otherwise changed by reason of any compromise, settlement or adjudication made by said appellant with reference to his interests in the estate of said deceased “unless on the.written consent of each of the parties of the second part.” Proceedings were instituted looking to the probate of the alleged will of 1901, but were not persisted in for reasons satisfactory to all the parties and on April 26, 1906, all the parties interested in the estate of Henry Hughes, deceased, entered into an agreement that a decree should be entered denying probate to the will of 1901, but that said alleged will should be taken as and assumed to be an effectual revocation of the will of 1895. It was'' further agreed that the real estate and personalty should forthwith be sold, and the proceeds distributed in a manner specified in said agreement, and that all matters in dispute involving the probate of the alleged will of 1901, as well as involving the administration of the estate by the executors, be settled and compromised. Under this agreement it was provided that appellant should receive one-fifth of the proceeds of the estate after certain specified payments were made, and also that there should be paid to him the sum of $30,000 to cover, among other things, all claims for counsel fees on the part of any and all, attorneys for said appellant. This last sum is still held by the executors. The appellant thus became entitled to approximately $90,000 as his distributive share in the estate under the aforesaid -agreement. Appended to this compromise agreement is the following consent signed by plaintiff: “We, the undersigned attorneys and counsel for the various respective parties to the above agreement do hereby approve and. consent to the terms and provisions of the respective parties hereto.” The plaintiff sues for the süm of $10,000, alleging that by the contract between himself and appellant above referred to the said appellant did “sell, assign, transfer and set over to the plaintiff herein all the right, title and interest which he then had or, should have in the estate of Henry Hughes, deceased, to the amount of ten thousand dollars.” The trial court rightly held that under this complaint the plaintiff could recover only the sum sued for, or nothing, and that no question of the value of the services rendered was involved. The first suggestion which presents itself upon reading the record is that the complaint does not actually set forth the substance of the agreement. What appellant undertook to assign was not $10,000 out of his right, title and interest in the estate of Henry Hughes, deceased, but $10,000 out of the legacy or devise to him purporting to be given by the alleged will of 1901, and since that will was never admitted to probate, there never was any such legacy or devise to which the assignment could apply. Apart from this consideration it is perfectly clear that the plaintiff never became entitled to anything under the assignment, whatever claim he may have for his services based upon a quantum meruit. Heading the whole .agreement between the plaintiff and appellant, it is apparent that the assignment of the $10,000 was made in consideration of and was dependent upon the accomplishment by plaintiff of certain definite specified things, to wit, the vacation of the probate of the will of 1895 ; the admission to probate of the alleged will of 1901, and the receipt by the appellant of the legacy contained in that will, and it was out of the fruits of the accomplishment of these things that the sum of $10,000 was assigned. If these things were not accomplished, and consequently there were no fruits thereof, there was nothing to which the assignment could attach, and the plaintiff could take nothing under it. This is precisely whát occurred. Hone of the things which plaintiff undertook to do were "accomplished, the legacy to which the assignment referred was never established because the will of 1901 was never proven, and the subject-matter of the assignment was never realized. The plaintiff can base no claim upon the clause in his contract forbidding a compromise or settlement without his written consent, because he did consent in writing to the compromise and settlement that was arrived at. As the plaintiff has elected to frame his complaint it is apparent, upon the "undisputed facts, that he cannot recover. It would be useless, therefore, to send the case back for a new trial. The judgment appealed from must, therefore, be reversed and the complaint dismissed, with costs to the appellant in this court and the court below.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment reversed and complaint dismissed,- with costs in this court and in the court below.  