text:
    In the matter of Bleakley.
    Where a solicitor commenced a suit in chancery for the recovery of a demand due to the complainant, and the counsel employed by such solicitor after» wards compromised the suit, and received from the defendant $287,45, besides costs, and paid the same over to the solicitor, except $50, which was left in the hands of the counsel, to be.paid to the complainant, provided he would receive it in full of his demand, and the solicitor afterwards refused to account to the complainant, or to pay him more than the $50 ; Held, that the counsel was not liablp to the complainant for the money, which had been paid over to the solicitor before he had notice of the complainant’s claim for the whole amount But the counsel was held to be personally liable for the ,$50, which he paid over to the solicitor, after he had beers' served with a notice of an application to the court, to compel him and the solicitor to pay over the money received from the defendant upon the compromise of the suit.
    Where a, solicitor collects money for his client, which he refuses to pay over, the court will enforce the payment of the money by a commitment for a contempt; and if he persists in his disobedience to the order of the court, the chancellor may order him to bo stricken from the roll of solicitors.
    It is illegal for a solicitor to contract with his client for a part of the demand in litigation, in addition to his legal costs and expenses in the suit, if he succeeds in the litigation; and such agreements, as they tend to champerty and maintenance, will not be sanctioned'by the court.
    This was an application, on the part of A. Blpakley, to compel the payment of the amount of a judgment collected for him on a creditor’s bill in this court, against John White. From the petition of the complainant, it appeared that in February, 1839, he recovered a judgment against White, in the supreme court, for $338,18 ; and that L. Webb, one of the solicitors of this court, afterwards' applied to Bleakley to purchase the judgment, and offered to give him $50 therefor, and take the risk of its collection. This proposition Blealdey declined ; but „ offered to give him one half of- what should be recovered, if he would undertake the collection thereof, and indemnify him against the payment of any costs. This proposition, however, was not agreed to by the solicitor. The solicitor thereupon commenced the suit for the petitioner, without making any agreement on the subject, and the bill was verified by the oath of the complainant. The defendant pleaded, in bar of the suit, that the judgment, exclusive of iti« terest2 bad been paid by the corporation of Nexv-York; which plea, upon argument, was overrued. (See Bleakley v. White, 4 Paige's Rep. 654.) The suit was afterwards settled by the counsel employed by the solicitor; who received on such settlement $432,45, including $145 for costs. The solicitor received the money, except $50 which was left in the hands of the counsel to be paid to the complainant, provided he would receive it in full of his claim. The petitioner applied to the counsel for the $50 left in his hands, who refused to pay it to him, unless he would receive if, and give a receipt in full of his claim, which the petitioner refused to do. And after the counsel bad been served with a copy of the petition in this case, and notice of this application, he paid the $50 over to the solicitor, without the consent of the petitioner. The attorney of the ¡petitioner also applied to L. Webb, the solicitor, for an account and settlement for the monies received from the defendant in the suit; who refused to do any thing about it, or to give any explanation, unless the petitioner would accept the $50 in full.

      H. C. Towner, for the petitioner.

      W. Silliman, for the solicitor, L. Webb.
   The Chancellor.

The counsel, in whose hands the $50 still remained at the time of the service on him of the petition and notice of this application, has made himself personally ^responsible to the petitioner for that amount, by paying it over to the solicitor, after he was fully apprised of the legal and •equitable right of Bleakley to that sum, as well as to the residue of the fund already paid over to the solicitor. The peti7 lion distinctly states the grounds of the petitioner’s claim, and prayed that the counsel, or solicitor who had received the money, might be ordered to pay it over to the petitioner. The counsel, therefore, in whose hands this $50 then was, paid over the money to the solicitor in his own wrong. He must, within ten days after a personal demand thereof, pay the $50 to the petitioner, or his solicitor in this petition, together with the interest thereof, from the 16th of June, 1835, the time of presenting this petition. And L. Webb, the solicitor, must refund the $50 and interest to such counsel, upon demand thereof, and upon service of a copy of the order to be entered on this application, or the latter may have the usual precept to commit him, for non-payment.

As the counsel had paid over the residue’ of the' money tti the solicitor, in good faith, before he had any notice of the rights of the client, and of the intention of the solicitor to op* propriate it to his own use, the petitioner must look to his sali-citor alone, for that part of the money to which he is entitled. The conduct of this solicitor appears to have been highly improper and reprehensible from the beginning; and he has no excuse whatever, for refusing to pay the petitioner the whole of his money, after deducting such reasonable disbursements, if any, as had not been paid by the adverse party. From the petition and the annexed affidavit, it appears that, in the first place, he applied to the petitioner to purchase his demand against White, for the purpose of instituting a suit thereon, in violation of the statute, and of his duty as a solicitor of this court. And if he had succeeded in this object, it would have been the duty of the court, upon proof of the fact, to have stricken his name from the roll of solicitors. If there was any express or implied understanding that he was to have any part of the claim in litigation, in addition to his legal costs and expenses in the suit, if he succeeded in collecting the demand, that agreement was equally improper, as tending to champers ty and maintenance. And if there was no such agreement,he is guilty of extortion, in attempting to“cleprive his client of the money to which he, the solicitor, has no legal or equitably claim whatever. He must, therefore, pay the petitioner his1 money, or I shall consider it my duty to protect the community against any further impositions of this kind, by removing him' from his office of solicitor.

There is nothing in the case to show that he .bad any authority to employ counsel for his client, and make him liable for extra counsel fees beyond the allowance fixed by' the fee bill. His general retainer as' solicitor, gives him nor such authority,- That is a matterwhich must be left to the client himself, unless he thinks proper to delegate the power specially to the solicitor. In this case I presume the client would have readily allowed him for the payment of a reasonable counsel fee upon the argument of the plea, in addition to the taxable fee paid by the adverse party, if he had settled with him as an honorable lawyer should settle' with his client. But under the circumstances of this case, the petitioner is justified in refusing to make him any allowance beyond what he has a strict legal right to claim, as the-"' petitioner’s extra expenses on this application will probably be as much as the extra counsel fees which could have been-fairly claimed in that suit.

As the solicitor has neglected to furnish his client with* a statement of the extra expenses, if any, in that suit, beyond what was received from the adverse party, and has-not thought proper to exhibit them to the court on this application, I must presume the $145 included all that he had-any legal right to claim. He must, therefore, pay to the petitioner, or to his solicitor in this matter, $237,45, with' the interest thereon from the time of presenting this petition, together with the taxable costs on this application, within twenty days after the service of the taxed bill of costs and demand of payment. And if he neglects to make such payment, the petitioner may apply for a precept of commitment, and may also apply to remove him from his office of solicitor,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Hallett vs. Hare.
    Where the decedent, at the time of her death, left no relatives in the direct •line of ascent or descent, and her nearest collateral relations were an aunt of the half blood of the decedent’s father, and another aunt of the full blood, on the side of the mother; Held, that the two aunts were entitled to share equally in the distribution of the decedent’s personal estate.
    3n successions to personal estates, relatives of the half blood, in equal degrees of cognation to the intestate, take equally with relatives of the whole blood; and they also take by representation, where representation would be allowed among relatives of the whole blood.
    Where one of the next of kin cites the administrator to account before the surrogate, for the purpose of obtaining his share of the estate, the administrator must cause the other distributees to be cited, if he wishes a final settlement and distribution of the whole estate.
    Yo authorize the surrogate, upon the settlement and distribution of the estate in the hands of an administrator, to retain a portion of the estate for the payment of outstanding claims, there must be a representation and proof, on the part of the administrator, that such claims probably exist against the estate.
    This was an appeal from the sentence or decree of the surjrogate of the county,of Kings. Susan Hallett died intestate, and the appellant, James Hallett, administered on her estate.
    At the time of her death she left no relatives, either in the direct line of descent or ascent; and her nearest collateral relatives were Mrs. Hare, an aunt of the half blood, on the part of the decedent’s father, and P. Penfold, an aunt of the whole blood, on the part of the mother. Hare, the respondent, cited the administrator to account, and the surrogate decided and decreed that the respondent, as the representative of his wife, was entitled to one half of the estate, after payment of debts and legacies, and the costs of the surrogate upon the taking of the account. He therefore decreed the payment to the respondent of $556,58, within ten daysj and that the administrator also pay into court $7,07, allowed for the costs of accounting.
    From this decree the administrator appealed.

      S. D. Craig, for the appellant.
    J3. C, Benedict, for the respondent.
   The Chancellor.

There can be no doubt, in this case, that the respondent, in right of his wife, was entitled to the one half of the personal estate of the decedent. No represen? tation being allowed among collaterals beyond brothers and sisters’ children, the two aunts, who were the nearest relatives, .and in the same degree of kindred to the intestate, were entitled to share equally in her personal property. The 1.2th subdivision of the 75th section of the article of the revised statutes, relative to the duties of executors and administrators, in making distribution to the next of kin, (2 R. S. 97,) expressly provides, that relatives of the half blood shall take equally with those of the whole blood in the same degree. The counsel for the appellant appears to suppose that the last clause of that subdivision prevents a relative of the half blood from taking, unless his or her descendants .could also take by representation. It is evident, however, that such was not the intention of the legislature. The object of this provision of the statute was merely to declare, that in cases where relatives of the whole blood were authorized to take, by representation, those of the half blood might also take by representation in the same manner. The rule of law on this subject has not been altered by the revised statutes. It has been considered as settled, ever since the decision of the house of lords in Watts v. Crooke, (Show. Cases in Parl. 108,) that in successions of personal estates, relatives of the half blood, in equal degrees of cognation to the intestate, take equally with relatives of the whole blood ; and that they also take by representation, where representation would be allowed among relatives of the whole blood, of the same degree. (See 2 Vern. 124, S. C. Burnet v. Mann, 1 Ves. sen. 156. Harris’ Justinian, 370, n. 1 Strahan’s Domat, 658.)

The surrogate was not authorized to make a final decree for settlement and distribution, as the administrator had not caused the other distributee, or her representatives, to be cited, as he was authorized to do under the 60th section of the statute, (2 R. S. 93,) if he wished a final settlement and distribution of the estate to all persons interested. The decree in this case is only for the just proportional part of the estate belonging to the respondent, which the surrogate was authoyiz¡ed to decree the payment of, after the expiration of one year from the granting of the letters of administration. (2 R. S. 116, § 18, sub. 2.)

There does not appear, from the return of the surrogate, to have been any question raised or claims made before him, to constitute any sufficient 'foundation for the other objections to the decree stated in the petition of appeal.- If the appellant set up a claim before the surrogate for a counsel fee, to be paid out of the respondent’s share of the property, for opposing this just claim, the surrogate was right in rejecting it, It does not appear, however, from the surrogate’s return, that any such claim was made; or that any bond to refund was asked for; or that there was any debt which could thereafter come against the estate, The statute contemplates a representation and proof, on the part of the administrator, that there are outstanding claims against the estate, to authorize the surrogate to retain for their payment. (2 R. S. 96, § 74.)

The decree appealed from appears to be right, in every respect. It must therefore be affirmed, with costs. The appellant must pay to the respondent the amount decreed to be paid to him; arid interest thereon from the time of entering the appeal with the surrogate, by way of damages for the delay and vexation caused by the appeal. The appellant must also pay to the surrogate the amount directed to be paid for the costs. And the decree upon the appeal may be enrolled, and execution thereon issued here, according to the course and practice of this court, to obtain payment of the several sums decreed to foe paid by the appellant.