In re the Probate of the Will of Evans

New York Surrogate's Court

In re the Probate of the Will of Evans

2 Mills Surr. 139, 34 Misc. 37, 69 N.Y.S. 487

DecidedFebruary 15, 1901

StatusPublished

This text of 2 Mills Surr. 139 (In re the Probate of the Will of Evans) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Probate of the Will of Evans, 2 Mills Surr. 139, 34 Misc. 37, 69 N.Y.S. 487 (N.Y. Super. Ct. 1901).

Pincite

Opinion

Thomas, S.

— Mr. David Keane appeared as, tbe attorney for certain of tbe heirs-at-law and next of kin of tbe decedent, and, in tbeir bebalf, filed objections to tbe probate of'tbe paper.propounded as bis will. Thereafter bis clients executed , an agreement of compromise with the executors and consented to the withdrawal of tbeir objections. Mr. Keane has already been beard on an application to cancel tbe objections of bis clients, and this application has been granted, overruling bis contention that be bad a lien as an attorney, wbicb gave him a right to continue tbe contest in tbe names of bis clients. He makes tbe present application for leave to file objections in bis own bebalf, on tbe theory that tbe agreement made by bim with bis clients, under which be appeared and- acted for them, operated to transfer to and vest in bim an undivided interest in tbe estate wbicb would be destroyed if tbe will, alleged to be invalid, is admitted to probate. As I construe this agreement, it is a stipulation on tbe part of tbe clients that tbe attorney shall receive 8 per cent. “ of any amount or -value that may come to them and each of thém from tbe estate of Thomas W. Evans, deceased, either as tbe result of legal proceedings, compromises, settlements or howsoever ”; and for tbe purpose of securing tbe same, tbe clients assign an interest in tbe expectant recovery and give to the attorney a lien on tbeir respective interests in tbe estate. A compromise of some sort was obviously contemplated, and tbe last clause of tbe instrument is in these words: “ It is further agreed that tbe parties of tbe second part (the clients) shall be at liberty at any stage of the case, either before,, duripg or after [141]*141suit commenced, to settle or compromise upon, suck terms as they may desire as to tbeir respective interest.” Tbe plain purpose of this provision was to reserve to the clients the exclusive right to pass upon the sufficiency of any settlement or compromise, and this reservation controls every other provision of the: agreement. A settlement having been made by the clients, I find no right in the attorney to continue the litigation until it is fought out through the courts, or until the parties in interest shall pay him such price as he may demand. He doubtless has a lien on the amount stipulated to be paid to his clients, but his remedy was by the terms of his bargain confined to that, and it cannot be given him here. The question as to whether the siim stipulated to be paid by the parties claiming under the will as a price for peace is adequate, or as to whether the terms of payment are reasonable, are not pertinent to this application. It is sufficient for the purposes of this application that the application has no standing in this court to contest the probate of the will.

Application denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Thomas, S.

— Mr. David Keane appeared as, tbe attorney for certain of tbe heirs-at-law and next of kin of tbe decedent, and, in tbeir bebalf, filed objections to tbe probate of'tbe paper.propounded as bis will. Thereafter bis clients executed , an agreement of compromise with the executors and consented to the withdrawal of tbeir objections. Mr. Keane has already been beard on an application to cancel tbe objections of bis clients, and this application has been granted, overruling bis contention that be bad a lien as an attorney, wbicb gave him a right to continue tbe contest in tbe names of bis clients. He makes tbe present application for leave to file objections in bis own bebalf, on tbe theory that tbe agreement made by bim with bis clients, under which be appeared and- acted for them, operated to transfer to and vest in bim an undivided interest in tbe estate wbicb would be destroyed if tbe will, alleged to be invalid, is admitted to probate. As I construe this agreement, it is a stipulation on tbe part of tbe clients that tbe attorney shall receive 8 per cent. “ of any amount or -value that may come to them and each of thém from tbe estate of Thomas W. Evans, deceased, either as tbe result of legal proceedings, compromises, settlements or howsoever ”; and for tbe purpose of securing tbe same, tbe clients assign an interest in tbe expectant recovery and give to the attorney a lien on tbeir respective interests in tbe estate. A compromise of some sort was obviously contemplated, and tbe last clause of tbe instrument is in these words: “ It is further agreed that tbe parties of tbe second part (the clients) shall be at liberty at any stage of the case, either before,, duripg or after [141]*141suit commenced, to settle or compromise upon, suck terms as they may desire as to tbeir respective interest.” Tbe plain purpose of this provision was to reserve to the clients the exclusive right to pass upon the sufficiency of any settlement or compromise, and this reservation controls every other provision of the: agreement. A settlement having been made by the clients, I find no right in the attorney to continue the litigation until it is fought out through the courts, or until the parties in interest shall pay him such price as he may demand. He doubtless has a lien on the amount stipulated to be paid to his clients, but his remedy was by the terms of his bargain confined to that, and it cannot be given him here. The question as to whether the siim stipulated to be paid by the parties claiming under the will as a price for peace is adequate, or as to whether the terms of payment are reasonable, are not pertinent to this application. It is sufficient for the purposes of this application that the application has no standing in this court to contest the probate of the will.

Application denied.

Cite This Page — Counsel Stack

Bluebook (online)

2 Mills Surr. 139, 34 Misc. 37, 69 N.Y.S. 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-evans-nysurct-1901.