author: Magie, Ordinary.

text:
    In the matter of the will of Mary A. Gilham, deceased.
    [Filed July 22d, 1902.]
    The probate of a will, contested on the grounds of lack of testamentary capacity in the testatrix and of undue influence, sustained.
    On appeal from a decree of the Essex county orphans court.

      Mr. Austin Van Gieson (with whom was Mr. Joseph Osfield, of the Rhode Island bar), for Mary E. Stringer, appellant.

      Messrs. Guild, Lum <& Tamblyn, for Mary Gafiey:

      Mr. Alfred F. Stevens, for the proponents below.

      Mr. William J. Kearns, for the surviving executor.
   Magie, Ordinary.

The appeal in this cause is from a decree of the Essex county orphans court admitting to probate a paper-writing as the last will and testament of Mary A. Gilham, who died domiciled in that county.

The appellant is Mary E. Stringer, who appears to be a grandniece of the deceased, and was a contestant against the admission' of the paper to probate in the court below.

Her contention in this court is confined to two of the grounds which were presented in the contest in the orphans court, viz., testamentary incapacity and undue influence.

As this contention presents mere questions of fact, I shall content myself with stating as briefly as possible the conclusions I have reached after a careful examination of the evidence on the two points on which it is contended that the decree below was erroneous.

First. As to the alleged testamentary incapacity.

Appellant does not contend that deceased had become incapacitated from senility, nor that she was afflicted by any mental lesion or disease. Her sole claim is that by the administration of morphine and the use of stimulants the mind of the deceased had become so dull and obscured that she was incapable of recalling the estate of which she was possessed, or of discriminating between those who would naturally be objects of her bounty in distributing her property after her death.

In this contention it is of the first importance to determine from the evidence what amount of morphine had been administered and how frequently it had been administered to the deceased, and what amount of the stimulant (which was whiskey) was, in fact, used by the deceased prior to the time of the execution of the instrument in question. Appellant called witnesses who testified respecting the morphine which was administered within their observation, and respecting statements made by deceased as to the amount administered to her. This testimony came from witnesses who were not habitually with deceased, but only casual visitors to her at irregular intervals. Their testimony is vague and uncertain, and; where it conflicts with the testimony of the attending physician of deceased, who directed the administration of the morphine and who personally administered it whenever it was administered hypodermically, it cannot be given much weight. Eor example, the witness who testified to the administration of morphine internally by tablets and simultaneously by hypodermic injections, and to the hypodermic injections being made three or four times a day at a period prior to the execution of the will, may well be presumed to have erred in recollection as to the amount of which she speaks, for the attending physician, a gentleman intelligent and skillful, testified to successive administrations of the kind named by the witness, and the witness has observed or heard thereof from the deceased and confused them in her recollection. From the whole evidence, I think, it conclusively proved that deceased had taken morphine internally, which was administered in the form of tablets, commencing about six months prior to her death, July 23d, 1900, and continued to take it in that form up to about a month before her death. Thereafter morphine was administered hypodermically at intervals of two or three days, until a little before July 1st. Then it was administered hypodermically twice a day until after July 15th, when the will was executed. .After that time it was sometimes administered three times a day. The dose administered hypodermically amounted to one-fourth of a grain.

The evidence is also conclusive, in my judgment, that during the period when morphine was administered hypodermically twice a day, the administration was practically at intervals of twelve hours, viz., at about eleven o’clock in the morning and at eleven o’clock at night.

As to the use of whiskey by deceased, a like positive result cannot be discovered from the evidence. That deceased took that stimulant in considerable quantities during the period of six months prior to the execution of the will seems clear. One of the witnesses declares deceased told her that she went to bed drunk every night. I do not think that this statement, however, was intended to indicate a state of habitual intoxication or to be inconsistent, with complete sobriety on the next morning.

It must next be considered what effect the evidence discloses to have been produced upon deceased by the use of the drug and the stimulant.

Deceased, at the time of her death, was about seventy-uine years old. She had been twice married, but was then a widow without descendants. She had been for some years living alone in a house owned by her in Newark. About six months before her death she engaged a servant named Mary Gaffey, who lived with her and served her until her death. She had one niece, Delicia Hayes, who also lived in Newark. She had kin living in England, but who 'they were is not clearly disclosed by the evidence. The only other kin of deceased in this country, so far as the evidence discloses, were the appellant, Mary E. Stringer, and her sister, Ella, who were her grandnieces. They lived in Rhode Island, and had never seen deceased except when they came to Newark on visits to Mrs. Hayes. There seem to have been only two such visits. The appellant had seen deceased six times in all. Her sister had seen deceased less often. The casual intimacy thus disclosed was not kept up by correspondence.

About eighteen months before her death deceased was attacked by cancer in the breast, which eventually involved the internal organs. She was attended by an intelligent and competent physician. Upon his suggesting an operation for the removal of the cancer, deceased declined to submit to it, upon learning from him that the operation would not necessarily result in eradicating the evil. As the disease progressed she suffered, at first, at times, and afterwards more continuously, from excruciating pain. To alleviate this pain and to enable her to endure it was the object of the administration of morphine and the use of the stimulant. When her digestion failed she was sustained by peptonoids and whiskey. Probably she took more whiskey than was prescribed for her, but I find no evidence at all of habitual intoxication.

Appellant produced several witnesses who testified to interviews with deceased during quite a period of time prior to the execution of the will, when they found her stupefied and unable to converse, and evidently unfit to do business. But this condition is precisely what would be expected from the drug administered and the stimulant shown to have been taken, and it is significant that the interviews proved always took place after a morning hypodermic injection or after more or less whiskey had been taken. The evidence is competent and is not unimportant, but its importance is confined to such inferences as it justifies in respect to the condition of deceased at the time of the execution of the will. The crucial point is her then condition, and evidence that she had been stupefied and incapacitated at periods before and after that time does not necessarily indicate incapacity at that time, and must have very little weight if opposed to sufficient credible evidence of capacity then existing.

Appellant also called several intelligent physicians, qualified as experts, and elicited opinions from them as to the probable effect of the treatment of deceased upon her mental condition. Their testimony is rendered less valuable than it would otherwise have been because counsel for the appellant based their examination upon the vague evidence of the witnesses for appellant, which was assumed to justify belief that the hypodermic administration of morphine in doses of one-quarter grain had been made three times a day prior to the execution of the will. The proponents of the will, however, elicited from them opinions upon the real facts as I have found them established in that respect. These experts did not criticise the treatment of deceased by her physician. .Some of them suggest that the doses were large when administered so frequently, but all admit that the attending physician is the best judge of the amount required for the ease of the patient whom he is constantly observing. But they all express the opinion that the treatment, if not open to criticism, must at least have rendered the patient incapable of attending to business.

On the other hand, physicians equally intelligent and experienced testify, upon the same hypothetical questions, that the results would not always agree with those just described. They declare that the treatment proved would not necessarily deprive the patient of the power of transacting business, and they instance cases within their own observation where such power existed.

In this state of the evidence it is manifest that we must give careful consideration to the testimony as to the condition of the deceased at the time of the execution of the will given by those present and taking part therein. The will was drawn and executed on Sunday,- July 15th, somewhere between ten and twelve o’clock in the morning. Ho hypodermic injection had been given her since eleven o’clock the night before. The lawyer called to draw the will, who was previously a stranger to her and her affairs, declares that she appeared to- be clear minded, and that she gave to him the particulars of her property and the persons to- whom she desired it to be given. This information was given to him in the absence of any other person. He- drew the will in her presence and read it to her twice, being incited to the second reading because she stated that she did not understand a particular item. Afterwards she expressed satisfaction with the- will, and a neighbor, who had lived in the house adjoining that of the deceased for years and had known her well, was called in to act as a witness with the lawyer. The will was again read and, I think, executed. At all events, just before, or just after, the execution of the will itself, the attending physician came in to administer the usual hypodermic injection, and did so. At the sight of him who had so carefully administered to her in her sufferings she expressed a wish to give him something as a memento. After he left the lawyer, at her request, added a codicil at the foot of the will bequeathing to him a diamond ring. The neighbor who was called as a witness testified that deceased knew what she was doing, and intelligently approved of and executed the will and codicil.

If this case rested alone on the evidence of the two attesting witnesses, I could not find the- deceased lacking in testamentary capacity without finding them guilty of perjury. But when to their evidence is added that of her intelligent physician, who, for eighteen months, had carefully observed and become thoroughly acquainted with her, and who declares that, at that time, she was clear headed and in her normal mental condition, I find it impossible to reach the conclusion that deceased was not then possessed of that degree of capacity which, under our decisions, is sufficient to qualify one to dispose of property by testament.

Second. As to the alleged undue influence.

Appellant does not contend that there is direct proof that the beneficiaries under the will asked deceased to- remember them in her will or to leave them some part of her property. There is nothing to indicate importunity on the part of the beneficiaries. The claim is that they were about her, with ample opportunity to present and urge such requests, and that the will, as made, indicates that such requests must have been urged and must have induced a disposition of the property contrary to that which deceased would otherwise have made.

The beneficiaries are (1) a Mr. Mason, to whom she bequeathed some shares of stock in a manufacturing company, of which he was the manager; (2) a Mrs. Shettle, who was a niece of the deceased by marriage; (3) Mary Gaffey, who- was called in the will her “servant and faithful friend;” (4) a Mrs. McKeon, who is called her “true friend and neighbor;” (5) one William E. McKeon, who is called her “friend,” and (6) her own niece, Eelicia Hayes, to whom is devised and bequeathed some specific real and personal property, and who is made residuary legatee and devisee. Mrs. Hayes and William E. McKeon are appointed executors.

The relation between deceased and Mr. Mason is not made clear by the evidence. Mrs. Shettle had long been intimate with her, and declares that deceased had promised her the greater part or the whole of her property. Mary Gaffey had been her servant for six months, during which she had suffered the exquisite pain of a relentless disease. While there is evidence that deceased had disputes with her upon religious subjects, there is nothing to indicate that Mary had not been the faithful friend which she was declared to be. Mrs. McKeon had been a neighbor for years and deceased and she were intimate. William E. McKeon was a son of Mi-s. McKeon, living at home, and had for some years rendered services to the deceased in the management of her house and in the management of her business affairs. Mrs. Hayes was, as has been said, the own niece of deceased.

Being among these surrounding friends and her servant, with whom she was intimate and from whom she had received services, it may well be inferred that she determined to divide her property among them in varying amounts, although she thereby excluded the appellant and her sister, who were but little known to her. Even if it should be inferred that these beneficiaries, or some-of them, presented claims to the deceased, and asked or urged her recognition of such claims in the will, the ease of appellant is not made out. Influence might thus be exerted upon her, 'but such influence would not necessarily be undue. To avoid a testamentary disposition on this ground it must be made to appear that the will of the deceased was dominated by those exerting influence, so that she was incapable of resisting, and was compelled to do what she otherwise would not have done. I find no justifiable inference from this evidence of undue influence.

It is suggested, rather than argued, that the circumstances proved justify the inference of a conspiracy between William F. McKeon and the lawyer who drafted the will.

I deem it unnecessary to analyze the evidence on which this suggestion is made. It is sufficient to say that if it raises some suspicion, it falls far short of such proof as is required.

The result is that this decree must be affirmed.


source: Caselaw Access Project

author: Foet, J.

license: Public Domain

text:
    Camden Iron Works, complainant, v. The City of Camden, George Pfeiffer, Jr., et al., defendants. George Pfeiffer, Jr., appellant, v. The Camden Iron Works, respondent. The Camden Iron Works, appellant, v. George Pfeiffer, Jr., respondent.
    [Filed June 16th, 1902.]
    1. Actions to foreclose a lien under a notice filed with the proper city officer upon the moneys in the control of a city due or to grow due to a contractor under a contract with the city for the making of any public improvement, being made cognizable in equity, he who seeks equity must do equity; he must come into court with clean hands.
    2. His claim must be made in good faith and must not contain any known and conscious demand beyond the actual amount' due, or omit, knowingly and consciously, any credit or offset .to which the contractor is entitled.
    3. Knowingly and consciously making an untrue and excessive claim will defeat the right to a lien under the statute. Where it appears upon the face of the claim or by proof that a claim is untrue or excessive, the court must be satisfied that the erroneous part of the claim was made in good faith, or the lien will fail.
    On appeals from a decree advised by Vice-Chancellor Eeed, whose opinion is reported in 15 Dick. Ch. Rep. 211.

    On June 24th, 1896, George Pfeiffer, Jr., entered into an agreement with the city of Camden, a municipal corporation, for extending and improving its water-supply. A supplemental agreement between the parties was added November 7th, 1896. Pfeiffer was to receive $561,500 for all his work. Pfeiffer claims to have completed the work.
    The Camden Iron Works, the complainants, entered into contract to furnish a part of the material with which Pfeiffer performed his contract with the city. There were two contracts between Pfeiffer and the Camden Iron Works, both dated October 31st, 1896. One for straight pipe and 'special castings, the other for a stand-pipe of thirty feet diameter and one hundred and ten feet in height.
    On May 18th, 1898, the Camden Iron Works gave two notices, in writing, to the proper officials of the city of Camden; one recited that there was owing to them from Pfeiffer $32,228.45 in accordance with thé particulars of such demand attached to the notice. That $18,891.18 of the claim was then due, and $13,337.’27 would be due upon the acceptance by the city of the work done by Pfeiffer for the city under his contract.
    The other notice was for $2,558.08, being the amount claimed to be owing by Pfeiffer for the balance on the stand-pipe contract, with interest thereon.
    The bill of particulars attached to the two notices were respectively as follows, being numbered “No. 1” and “No. 2” for convenience:

      No. 1 for $32,228.45.
    Camden, New Jersey, May 18th, 1898.
    George Peeifeer, Jr.,

      To Camden Iron Works, Dr.

    Special castings shipped to date, 36,754 lbs., at 2%- cents per lb... $826 96
    6", 12", 16", 20" pipe shipped to date, 11,431 lbs., at $22.50—2,000 lbs... 128 60
    30" pipe shipped to date, 2,860,583 lbs., at $22.50—2,240 lbs., i...... 27,635 28
    36" pipe shipped to date, 2,344,961 lbs., at $22.50—2,000 lbs......... 26,380 81
    $54,971 65
    Less payment on ac......$10,841 96
    25,465 59
    - 36,307 65
    -$18,664 10
    Pipe made and held subject to order:
    225 pcs. 30" pipe, 975,398 lbs., at $21.64—2,240 lbs................ $9,423 04
    34 pcs. 36" pipe, 203,703 lbs., at $22.50—2,000 lbs................ 2,291 66
    - 11,714 70
    Interest on $42,507.12, from Feb. 20th, 1897, to May 18th, 1898, 1 yr., 2 mos., 28 days............. $3,173 86
    Less interest on $25,465.59, from July 6th, 1897, to Blay 18th, 1898, 1,324 21
    - 1,849 65'
    $32,228 45
    No. 2 for $5,558.08.
    Camden, New Jersey, May 18tb, 1898.
    George Pfeiffer, Jr., ;

      To Camden Iron Works, Dr.

    Stand-pipe, as per contract........ $9,000 00
    Less payment on account.... $2,400
    “ “ “ “ .... 4,160
    - 6,560 00
    - $2,440 00
    Interest on $4,800, March 20th, 1897, to May 18th, 1898, 1 yr., 1 mo., ■ 28 days........................ $334 40
    Less interest on $4,160, July 6th, 1897, to May 18th, 1898, 10 mos., 12 days........................ 216 32
    - 118 08
    $2,558 08

      Both, claims were duly verified as required by statute.
    At the time these notices were filed there was due, or about to become due, Pfeiffer from the city, under his contract, $120,000.
    These notices stopped, therefore, $34,786.53 of this sum so due Pfeiffer.
    The decree of the chancellor, advised by Vice-Chancellor Reed, decrees that there is due the complainant on notice No. 1, $14,499.49, and on notice No. 2, $2,509.39, making a total of claim allowed under both notices of $17,020.88 only.
    And. it was further decreed that, for that amount, “George Pfeiffer, Jr., was, on May 18th, 1898, the date of the filing of the complainant’s lien claims in this cause, and still is indebted to the complainant upon its said claims, for which it is entitled to, and has a lien upon, the said moneys due from the said city of Camden to the said George Pfeiffer, Jr.”
    From this decree there are cross-appeals. One by the Camden Iron Works against SO' much of the decree as disallowed a large part of its lien claim, and the other by George Pfeiffer, Jr., from the allowance of any lien in favor of the Camden Iron Works upon the funds due him by the city of Camden, under his contract, on either of said lien claim notices.

      Mr. Edward A. Armstrong and Mr. David J. Pancoast, for the Camden Iron Works.

      Mr. Samuel U. Grey, for George Pfeiffer, Jr.
   The opinion of the court was delivered by

Foet, J.

The bill in this case was filed to foreclose two lien claims against funds due by the city of Camden to George Pfeiffer, Jr., its contractor upon certain public improvements for the extension of the city water-supply.

The right to file the lien claim is founded upon an act entitled “An act to secure the payment of laborers, mechanics, merchants', traders and persons employed upon or furnishing materials toward the performing of any work in public improvements in cities, towns, townships and other municipalities in this state,” approved March 30th, 1892. The method of serving the notices and the like provided for by the statute was duly pursued. Gen. Stat. p. 2078.

It has been decided by this court that suits to foreclose a lien given by this statute must be in the court of chancery. Delafield Construction Co. v. Sayre, 31 Vr. 449.

In disposing of these appeals, I shall first consider the appeal of George1 Pfeiffer, Jr. His appeal is founded upon the theory that the decree of the chancellor is erroneous, because it allows a part of the claim of the complainant, under the $32,228.45 notice, when he should have decreed, because of the wilfully excessive, false and fraudulent character of a large part of that claim, in favor of the appellant and against the right of the complainant to any lien claim whatever for any part of said claim. By the statute approved March 30th, 1892, above recited, and under which the complainant’s lien claims are filed, it is enacted that -any “laborer, mechanic, merchant or trader,” who shall perform any labor or furnish any material toward the performance or completion of any city contract, shall have a lien for the value of such labor or materials upon moneys in the control of said city, due or to' grow due to the contractor with said city, for any public improvement,

“to the full value of such claim or demand, and these liens may be filed and become an absolute lien to the full and par value of all such work and materials to the extent of the amount due or to grow due under said contract, in favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with said city, town, township or other municipality is made or the subcontractor of said person or persons, their assigns or legal representatives.”

In. order to secure the benefit of this statute, it is enacted that it shall be necessary for every lien claimant to comply with the second section of the act, which provides as follows:

“That at any time before the whole work to be performed by the contractor for any such city, town, township or other municipality, is completed or accepted by said city, town, township or other municipality, and within fifteen days after the same is so completed or accepted, any claimant may file with the chairman or head of the department, council, board, bureau or commission having charge of said work, and with the financial officer of said city, town, township or other municipality, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, aDd, if not due, when it will be due, giving the amount of the demand after deducting all just credits and offsets, with the name of the person by whom employed or to whom the materials were furnished; also a statement of the terms, time given, conditions of his contract, and also that the labor was performed or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city, town, township or other municipality; but no variance as to name of the contractor shall affect the validity of the said claim or lien.”

It will be noted that the claim of the claimant must be

“verified by his oath or affirmation stating the amount claimed, from whom due, and, if not due, when it will be due, giving the amount of the demand, after deducting all just credits and offsets.”

And it is further provided that the claim shall state

“that the labor was performed or materials were furnished, to the said contractor and were actually performed or used In the execution and completion of said contract with said city.”

- The requirements of the statute therefore are an accurate, verified account, with a statement thereon of all just credits and offsets. Good faith in the claim and accuracy in its statement are made the foundation of its right to be enforced against moneys due a contractor from a city. The statute does not declare that if wilful or fraudulent misstatements are knowingly made in the account, it shall be non-enforceable or void. Neither does the statute declare that innocent mistake or honest error shall not avoid the right to enforce the lien.

In the states having statutes giving lien claims, either on buildings or vessels or on funds in the hands of municipalities due to contractors, the statutes seem to provide that, in order to avoid a lien’ because of error or mistake, it shall be necessary to show that it was a wilful and fraudulent one, knowingly made.

These provisions of the statute, are remedial, and were enacted to protect the claimant in cases of innocent mistake, for the reason that, without such a provision of the statute, where a verified claim was required, and the claim was also required by the statute to be “just and true” or “actually due,” and to show thereon “all just credits and offsets,” it was held by the courts that an unjust or inaccurate claim, made carelessly or without proper caution, would not be enforced as a lien.

The State of Massachusetts has two lien acts. They are found • in the public statutes of 1882 as chapters 191 and 192. By-séction 14 of chapter 192, a lien is given upon vessels constructed or repaired in any port, for labor done thereon or materials' furnished therefor. The fifteenth section requires that the lien-shall be filed by the claimant, within four days after the vessel departs from the port where the debt was contracted, in the office of the clerk of the city or town within, which the vessel was at the time the work was done, containing

“a statement subscribed and sworn to by him or by some person in his behalf, giving a just and true account of the demand claimed to be due to him with all just credits,” &c.

In procedure, the provisions of chapter 191 of the Building Lien act is made applicable to chapter 192 of the Vessel act, and section 8 of chapter 191 provides that

“the validity of the lien- shall not be affected: by any inaccuracy * * * in stating the amount due for labor or materials, unless it appears that the person filing the statement has wilfully and- knowingly claimed more than is his due.”

,This remedial section was adopted by the legislature of Massachusetts in 1855, and was enacted to prevent the defeat of a claim as a lien which contained any inaccuracy in the statement, when not wilfully and knowingly made. Prior to the act of 1855, the statute under which liens were filed, even for building contracts in that state, simply contained the clause that the claimant must file “a certificate containing a just and true account of the demand justly due to him after all just credits given.” Under that clause, the supreme court of Massachusetts held that an error, though honestly made, in omitting a credit on a lien claim of $4 only avoided the entire right to the lien, because it was not a just and true statement. The court said: “The amount of all just credits is a fact which lay particularly within the petitioner’s own knowledge and which he was bound to state properly; if the owner of the land had paid the amount thus stated, he would have lost $4 ih settling with Ms contractor.” Lynch v. Cronan, 6 Gray 531; Truesdell v. Gay, 13 Gray 311.

Subsequently, in 1856, after the statute of 1855 had been passed, the supreme court of Massachusetts held that, because of the act of 1855, and since that act, the erroneous inclusion honestly made in a lien claim of labor done upon a building, but not due to the claimants, would not defeat the lien. They put it expressly upon the remedial statute of 1855. Parker v. Bell, 7 Gray 429; Hubbard v. Brown, 8 Allen 590.

The same condition of statute now exists in the State of New York, with regard to liens, as that which existed in the State of Massachusetts prior to 1855. There is no provision in the New York statute that a mistake innocently or carelessly made shall not affect the lien, nor is there any act which provides that only wilful and fraudulent misstatements shall avoid the lien. The court of appeals of New York has not passed upon the question whether an inaccurate, untrue, excessive or oppressive claim will defeat a lien or whether an innocent mistake made in the amount claimed, or the credits given, will defeat the lien, but the supreme court and other courts of New York have passed upon this question, and uniformly held that an inaccurate, untrue, excessive or oppressive claim, when filed, will defeat the claimant’s right to a lien. The court of appeals, in Ringle v. Wallis Iron Works, has considered all these questions and recognized the fact that the supreme court and the general term thereof, in New York, have held such claims to be void, but the majority of the court said that it was unnecessary to decide that question in that case. Judge Gray, however, in Ms dissenting opinion, even in that case, said: “That because the notice of lien failed to comply with the requirements of the statute and contained untruthful statements as to the material facts, no valid lien was created which plaintiffs could enforce.” In the majority opinion, Judge O’Brien says: “This court has not yet been committed, so far as I have been able to ascertain, to the doctrine that a party, by inserting statements of fact in the notice of lien which are shown to be untrue, thereby forfeits the right to a lien and renders the notice void or ineffectual to create a lien. Cases have been cited from the supreme court and other courts in support of this proposition. We will not now stop to inquire whether this qualification has been properly ingrafted upon the statute, and, if so, to what limitations such a rule should be subjected. It is quite clear that the cases refer to statements in the-notices that are not only untrue but wilfully and intentionally false in some important or material respect.”

Further on in the opinion, speaking of the facts in that case, he says: “Hor is there anything in the record to warrant the inference that the plaintiffs knowingly and consciously inserted any false statements in the notice, and nothing less than that, even upon the view of the court below, will be sufficient to defeat the lien.” Ringle v. Wallis Iron Works, 149 N. Y. 439.

It will be noted that, notwithstanding the Hew York statute contains no provision as to wilful and fraudulent statements in a lien claim, the courts of that state, in all cases upon which they have passed, have held that the provision of their statute which requires a true and just statement of the claim will defeat the right to a lien where the plaintiffs knowingly and consciously insert any false statement in the notice.

The language of our statute in the case before us requires that the claim shall' be verified, stating the amount claimed; that there shall be a deduction of all just credits and offsets, and an affirmation that the labor was performed or the materials were furnished and “were actually performed or used in the execution or completion of the said contract with said city.” This statute clearly requires an honest and truthful statement of the claim for labor performed or material furnished in the execution of the contract, and, in order to make the accuracy of the statement quite essential, the statute provides that the verification shall be that the work was actually performed or the material actually used in the execution or completion of the contract. The statute is not broad enough to cover materials not actually used in the construction of the city work. The reason for this must be quite obvious.

The swearing to an erroneous claim thoughtlessly and carelessly, without any. effort to obtain accessible data from which the error might be corrected, is swearing wilfully and knowingly. Gibbs v. Hanchette, 90 Mich. 657.

In the statement of a fact which could have been avoided by reasonable diligence, the lien is lost. Nicolai v. Van Fridagh, 23 Oreg. 149.

A material misstatement in a claim, if made fraudulently, or, what is about the same thing, made wilfully and knowingly, violates the lien altogether; but, by statute in some states and by judicial construction in others, an error which is innocently made, and which does not mislead anyone to his prejudice, does not render the lien void, but, at most, merely renders it void as far as the erroneous item is concerned. In states where this rule prevails a lien may be enforced for the amount actually due, even though the claim, through innocent mistake, exaggerates the total debt. Boisot Mech. L. § 425.

When the law requires “a certificate containing a just and true account of the demand justly due to him, after all just credits given,” to be filed, the omission of a credit dissolved the lien. Phil. Mech. L. § 356; Lynch v. Cronan, supra.

Tire amount of a claim ’should be accurately given, where the amount is required to be stated, so that the owner may, if he desires, discharge the lien by depositing “the amount claimed” without thereby having to deposit more than the just amount. Hoyt Mech. L. 140.

Even under the Massachusetts statute, -where it is required that the claimant shall wilfully and knowingly claim more than is due in his certificate to defeat his lien,'the courts have held that, if the claimant knowingly omits a credit given in his statement of account filed in the clerk’s office, the jury will be authorized to consider this fact and to draw from it the inference that he wilfully and knowingly claimed more than was due. Corbett v. Greenlaw, 117 Mass. 167.

The most liberal rule as to the defeat of a lien because it contains non-lienable items is that which allows inquiry to be made as to whether the non-lienable items were inserted in the claim in good faith. Title Guarantee Co. v. Wren, 76 Am. St. Rep. 454, 460, note.

The citations herein made, and a careful examination of manj others, including all the text-books on the subject that I have been able to find, seem to malee it clear that the rule applicable to the right of the claimant in this case to a lien upon the funds of the city of Camden due to Pfeiffer, the contractor, is that, if the account as filed is not the amount of the demand which is truly and substantially due to the claimant, after deducting all just credits and setoffs, but is knowingly and consciously excessive and untrue, it will not be enforced as a lien. It needs to be remembered that these proceedings for the enforcement of liens under this statute are made cognizable in equity, and that the principles of equity are applicable to one who comes into court to foreclose a lien of this character. He who seeks equity must do equity, and he who comes into equity must come with clean hands.

If the standard established by the Hew York court of appeals, in Ringle v. Wallis Iron Works, supra, be set up to measure the right of the claimant in this case to a lien, we think that the facts before us would not justify us in sustaining it. They declare the rule to be, where there is no statute fixing it, that if a claimant knowingly and consciously inserts any false statement in the notice, it will be sufficient to defeat the lien.

It would be difficult to examine the facts in this case and reach any conclusion which would relieve the claimant from the imputation of filing with the city of Camden an inaccurate,'untrue, excessive and oppressive claim under the terms of its contract with Pfeiffer. It is self-evident that the claimant charged, in excess of the amount fixed by the contract upon the straight pipes; shipped under it to Pfeiffer, $3,746.56. It is equally clear that, under the plain letter of the same contract, the whole charge of $11,714.70 in the claim which makes up the $32,228.45 was absolutely without any basis of right. A careful examination, of the testimony fails to disclose a single statement in the evidence of the president of the Camden Iron Works, or by any other witness called on its part, in explanation or in justification of either the excessive charge of $3,746.56 or the wholly improper inclusion of the $11,714.70 in the claim. The letter of Pfeiffer to the Camden Iron Works of February 10th, 1897, shows that the impropriety and wholly baseless character of such a claim was brought to the attention of the claimant, in great detail, over four months before the claimant filed with the clerk of the city of Camden its inaccurate, untrue, excessive and oppressive claim. It is an irresistible conclusion that it filed this lien notice against both light and knowledge. The letters in evidence, the testimony of the president of the company, the whole course of conduct of the claimant company in relation to garnisheeing other funds of Pfeiffer in a trust company in Philadelphia after, or at the time of, the filing of its lien notices with the city of Camden, is so flagrantly unfair, unjust and oppressive as to give the irresistible inference that the act of the claimant company, in filing its lien for an untrue and excessive amount, was knowingly and consciously done. It is not even pretended that it had legal advice that its lien notice, as filed, contained claims which it might justly make under its contract with Pfeiffer.

This finding, therefore, leads to the conclusion that the decree of the chancellor, in so far as it allowed the sum of $14,499.49 upon the lien claim for $32,228.45, or any part of that claim, was erroneous, and should be reversed.

So much of the decree as allows $2,509.39 upon the second claim filed, which relates to the stand-pipe, ordered and delivered under another contract, should be affirmed. These two claims must be treated and considered separately. Each could have been dealt with by the contractor and the city as independent and substantive. The filing of the one in no way hindered or delayed the adjustment of the other. The error found in the second claim, as filed, for $2,558.08, amounting to $48.69, under the proof in the ease, was, quite evidently, not a known and conscious mistake of the claimant, but arose out of an agreement to credit, made between the contractor, Pfeiffer, and an employe of the claimant company, and might have been, and undoubtedly was, honestly and innocently omitted in crediting. The finding of the vice-chancellor in that respect is affirmed.

The conclusion reached as to each of the claims before us, and the principles governing us in arriving at the result, we believe to be in accord with the views expressed by Chief-Justice Beasley in relation to claims by notice, given to an owner, under the third section of the Mechanics’ Lien law. “It is reasonable,” he says, “to require the materialman or workman to be certain that the claim he makes is, in all respects, correct before he'proceeds to impound moneys in the hands of the owner and to interrupt the due execution of the building contract. A privilege to make exorbitant and ill-founded claims, and, on refusal of payment, to intercept such sums and hold them in the hands of the owner an indefinite time, could be simply an instrument of vexation and oppression. The statute says the workman or materialman shall give notice of the contractor’s refusal to make payment, 'and of the amount due to him or them and so demanded,’ and it proceeds to authorize the owner thereupon to retain 'the amount so due and claimed,’ obviously, -then, the amount demanded must be the amount due. As the amount claimed is to be retained by the owner, it would be sheer injustice to allow more to be claimed than is justly due. If the workman or materialman claims, therefore, more than has, in fact, been earned by him, such exaggeration is, I think, fatal to his right to use the statutory procedure against the owner.” Reeve v. Elmendorf, 9 Vr. 125, 132.

The decree will therefore be reversed and modified.

The appeal of’ George Pfeiffer, Jr., will be sustained to the extent of eliminating from the lien the $14,419.49 allowed by the decree of the chancellor on claim Ho. 1 for $32,228.45, and the whole of that lien claim will be disallowed. The decree, so far as it allows $2,509.39 on the second lien notice, is approved, with interest from the date of the filing of the lien, viz., May 18th, 1898. The refusal to allow interest, we think, is erroneous. The claim being just, interest should follow. Both parties are entitled to costs on their respective appeals.

On appeal of the Camden Iron Works—

For reversal and modification—The Chiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Adams, Vredenburgh, Voórhees, Vroom —13.

For affirmance—None.

On appeal of George Pfeiffer, Jr.-—■

For reversal—The Chiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Adams, Vredenburgi-i, Voorhees, Vroom—13.

For affirmance—None.


author: Pitney, J.

text:
    Mary W. Lynde, petitioner, v. Charles W. Lynde, defendant. On petition of Mary W. Lynde, the petitioner above named, v. James Westervelt, respondent.
    [Filed July 7th, 1902.]
    1. A solicitor in chancery of this state, 'Who was also an attorney and counsellor-at-law of the State of New York, was employed to take proceedings in chancery for the recovery of permanent alimony on a divorce a vinculo matrimonii theretofore granted by that court. The proceedings were taken, resulting in a decree in chancery against the former husband for a considerable sum of money for alimony accrued, and requiring him thereafter to pay permanent alimony to the former wife at a stated sum per week. The defendant being a resident of New York, the solicitor in his capacity as an- attorney-at-law of that state, brought suits there against the former husband to recover the arrears of alimony .mentioned in the decree and certain installments which had thereafter fallen due. The litigation was settled in New York and a general release was given by the former wife to the former husband, discharging him from all claims for alimony, past and future. In the settlement her solicitor and attorney received for her account a large sum of money, being the consideration of the settlement and release. The solicitor retained this money, or a large share of it, and refused to pay it over to his client.-—■ Held, that the court of chancery has jurisdiction to exercise its summary power over the solicitor as an officer of the court, in order to require him to do justice to his client.
    2. A wife’s claim for an allowance of permanent alimony, on a divorce a vinculo, is a purely personal right and not a property right. Alimony to be allowed and paid in futuro is intended for the personal benefit and support of the wife, and in its nature is not susceptible of assignment by the wife to another, nor capable of being enjoyed by her in anticipation.
    3. A contract between- a wife and her solicitor, providing that for his services in procuring an allowance of alimony and enforcing its payment he shall receive a share of the alimony recovered, is void not only because the claim for alimony is incapable of assignment, but also because the contract is in contravention of public policy.
    On appeal from an order advised by Vice-Chancellor Reed, who delivered the following conelnsions:
    The right of this court to take control of this matter is challenged by the respondent upon the ground that the money in his hands was not raised in any proceeding in this court, but by actions in the courts of the State of Hew York.
    It is to be observed that the moneys came to the respondent by the terms of a settlement, and that this settlement included not merely a release by the petitioner of all her rights in the judgments obtained in Hew York, but of all rights, past and future, under the decree made by this court. As solicitor in the suit in which the decree satisfied by this settlement was made, I am of the opinion that he is amenable to this court for his conduct in dealing with the money so received.
    It is not a question whether, as an attorney of the State of New York, his conduct in the New York actions is also the subject of judicial supervision there.
    Assuming that this court has the right to take control of this matter, and order the respondent to pay to the petitioner such portion of the moneys in his hands as remains after deducting a reasonable compensation for his services, the question remains, should this court exercise that power in this case ?
    The ground upon which a court moves in matters of this kind is stated by Mr. Justice Dixon, in delivering his opinion for the court of errors and appeals, in Strong & Sons v. Mundy, 7 Dick. Ch. Rep. 833. “The right to proceed summarily against an attorney arises from his dishonest and oppressive or clearly illegal conduct. If it appears that there exists between a lawyer and his client a fair dispute, which can be decided only on the settlement of doubtful questions of fact or law, the court should not exercise its summary power, but should leave the parties to their ordinary remedies.” Among the cases cited in support of this statement of the law is In re Paschal, 10 Wall. 433, in which Mr. Justice Bradley, for the supreme court of the United States, said: “If an attorney has collected money for his client, it is, prima facie, his duty, after deducting his own costs and disbursements, to pay it over to such client; and his refusal to do so, without some good excuse, is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justice. It is this misconduct on which the court seizes as a ground of jurisdiction to compel him to pay the money in conformity with his professional duty. The application against him in such cases is not equivalent to an action of tort or assumpsit, but it is a quasi criminal proceeding, in which the question is not whether the attorney has received the money, but whether he has acted improperly or dishonestly in not paying it over. If no dishonesty appears, the party’ will be left to his action at law.”
    Tested by the doctrine thus enunciated, I am of the opinion that the facts displayed do not present a case for the exercise of the summary power of this court. While it is true that in the absence of a contract an attorney who agrees to enforce a right or collect a claim, in consideration of a certain sum or of a pereentage upon the amount recovered, must pay out of the sum mentioned, or out of his proportion thereof, for the services of any counsel employed by him, it is equally true that if such counsel is employed by the client of the attorney, or by the attorney himself at the client’s request, under an arrangement that the counsel shall be first paid out of the gross amount recovered, the attorney cannot be compelled to pay the counsel’s fees.
    The question, then, is one, the solution of which depends upon conflicting testimony—the petitioner denying and the respondent asserting the existence of an agreement that the counsel should be paid out of the sum recovered. There is nothing illegal in such a contract, and the only question is whether such a contract existed. The appropriate forum for the adjudication of the rights of the parties is a court of law. The petition must be dismissed.

      Mr. -John M. Dickinson and Mr. Edwin Robert Walker, for Mary W. Lynde, appellant.

      Mr. Richard V. Lindabury, for James Westervelt, respondent.
   The opinion of the court was delivered by

Pitney, J.

This is an appeal by Mrs. Lynde from an order made by- the court of chancery dismissing a petition filed by her, in that court, wherein she prayed that the respondent, James. Westervelt, who was her solicitor in the main cause, should be required to pay into court the sum of $38,ñ00, which he had received from the defendant in the cause in settlement of a controversy about alimony, so that out of the said sum a reasonable fee might be fixed and allowed to the solicitor for his services rendered to her, and the balance of the moneys might be paid to Mrs. Lynde.

The learned vice-chancellor who heard the matter refused the relief prayed for by Mrs. Lynde, on the ground that the facts shown did not warrant the exercise of the summary power of the court over a solicitor.

The undisputed facts are as follows:

In the year 1893 Mrs. Lynde obtained, in the court of chancery, a decree of divorce a vinculo matrimonii. This decree, through inadvertence in its preparation, made no provision for the allowance of alimony. In the month of January, 1896, Mrs. Lynde, for the first time, met Westervelt, who was an attorney-at-law and solicitor in chancery of this state, and was also an attorney and counsellor of the State of New York. She employed him to take proceedings in her behalf to recover alimony from her former husband. According to her insistment no express agreement was made between her and Westervelt as to his compensation. He sets up an alleged agreement for a contingent fee based upon the amount of the recovery. This question will be dealt with hereafter.

Whatever may have been the terms of the employment, it appears that, on the 11th day of February, 1896, Westervelt, as her solicitor, filed a petition in the court of chancery, praying that the decree of divorce be opened and that it be amended by decreeing an allowance of alimony to Mrs. Lynde. To this petition her former husband, Charles W. Lynde, made appearance, and, after litigation, the court of chancery decided (Lynde v. Lynde, 9 Dick. Ch. Rep. 473) to permit Mrs. Lynde to make application, at the foot of the decree, for an allowance of alimony. From the order of the chancellor thus made an appeal was taken, and the order was affirmed by this court. 10 Dick. Ch. Rep. 591. Thereupon further proceedings were had in the court of chancery, resulting in the making of a decree, on December 28th, 1897, whereby it was adjudged and decreed that the said Charles W. Lynde should pay to Mrs. Lynde the sum of $7,840 for alimony accrued from the filing of her petition to the date of the decree; a counsel fee of $1,000, and her costs of suit, taxed at $136.07, amounting, in the aggregate, to $8,976.07; and the decree also required him to pay to her thereafter the sum of $80 per week, from the date of the decree, as permanent alimony. The defendant, Lynde, was a resident of the State of New York. A receiver appointed by the chancellor was unable to obtain possession of any property of his in New Jersey in order to enforce the provisions of the decree. It therefore became necessary to take proceedings in the State of New York to enforce the payment of the accrued alimony mentioned in the decree of December 28th, 1897, and to fasten upon Mr. Lynde the liability for alimony thereafter to accrue. For this purpose Westervelt began an action in the supreme court of New York, which, after trial, resulted in a money judgment in Mrs. Lynde’s favor against her former husband for the amount of the alimony, counsel fee and costs specified in the New Jersey decree, and also for alimony at $80 per week from the date of that decree until the entry of judgment in the New York suit, which was in the month of January, 1899. The money judgment amounted, with costs, to $14,896.03. The same judgment directed the defendant to pay alimony to Mrs. Lynde thereafter at the rate of $80 per week. On appeal from that judgment by the defendant the appellate division of the supreme court of the State of New York modified the judgment by reducing the amount of the recovery to the sum of $8,840, with interest and costs, and by abrogating the equitable relief. Lynde v. Lynde, 41 N. Y. App. Div. 280; 48 L. R. A. 679; 58 N. Y. Supr. Ct. 567.

Thereupon Westervelt instituted three additional actions in the supreme court of New York, in each of which the relief asked was a money judgment for sundry installments of alimony that had fallen due since the decree of December 28th, 1897.

About the same time both parties appealed from the decision of the appellate division to the court of appeals, and that court, in the month of April, 1900, affirmed the judgment of the appellate division in all respects. Lynde v. Lynde, 162 N. Y. 405. Thereupon each party sued out a writ of error from the United States supreme court, and in that court the judgment of the New York court of appeals was affirmed. Lynde v. Lynde, 181 U. S. 183. This decision was rendered April 15th, 1901. Shortly thereafter a fifth action ivas commenced by Westervelt for Mrs. Lynde against her former husband in the State of New York. Its purpose does not appear, but presumably it was intended to recover an additional installment of alimony.

During the months of May, June and July, 1901, negotiations for settlement were in progress, which finally reached a conclusion on the 12th day of July. It was closed by Westervelt with the opposing attorneys, in Mrs. Lynde’s absence, but with her .consent so far as the terms of settlement were concerned. In the settlement Westervelt received Charles W. Lynde’s check for $38,500, payable to Mrs. Lynde’s order, and also his note, to her order, for $2,500, payable .in eight months upon condition that she should, if required, make deposition in court concerning a fact which, by the parties, was. considered material in the settlement. Por this consideration Mrs. Lynde released her husband from “all claims against him for or on account of any alimony or maintenance, past or futurethe New Jersey decree of December 28th, 1897, and the New York judgment were both satisfied of record, and all pending actions were discontinued. It should be observed in passing that the New York judgment, as modified on appeal, was for only $8,840, besides costs, and represented the alimony and counsel fee adjudged due to Mrs. Isolde by the New Jersey decree. The residue of the $41,000 was paid, or agreed to be paid, by Charles W. Lynde for Mrs. Lynde’s release pf her pending actions for alimony from December 28th, 1897, to July 12th, 1901, and of her claim for future alimony.

As soon as the settlement was closed, Westervelt endorsed the $38,500 check in Mrs. Lynde’s name, and deposited it to the credit of his own account in bank. This endorsement was made under a power of attorney that Mrs. Lynde had given him on the same day, in anticipation of the settlement. Whether he had a right to use the power of attorney for this purpose is one of the questions arising in the present inquiry.

Having thus obtained possession of the $38,500, Westervelt notified Mrs. Lynde by letter that the settlement had been closed at $41,000 (this, of course, included the $2,500 note), and that her share would be about $19,000; promising to send a statement and forward her share at an early day. This notification brought Mrs. Lynde to his office, accompanied by one of her present counsel, and a somewhat heated interview took place, during which she strenuously objected to the charges proposed to be made by Westervelt. A few days later he sent her by mail a statement made up entirely in accordance with his own insistment, charging her $15,000. as his own fee for professional services, $4,900 for fees of Mr. George H. Bruce and Messrs. Gayley & Fleming, who had been employed as counsel in the litigation, and the further sum of $2,513.21 claimed to be due to Westervelt for taxed costs and disbursements; the charges amounting in all to $22,413.21, and showing a balance due from him to her, according to his own contention, amounting to $16,086.79. For the latter amount Westervelt sent her his check, made out to her order, on the face of which were written the words: “In full of all claims In re Lynde v. Lynde or otherwise.” At the same time he sent her the conditional note for $2,500 signed by her husband.

Mrs. Lynde refused to accept this check and note as payment in full from Westervelt, and thereupon filed her petition in the court of chancery invoking the aid of that court against him. This petition sets forth with some particularity the transactions alleged to have taken place between her and Westervelt, and prays that the money received by him as above mentioned may' be forthwith paid into court to- await the further order of the court; that out of that money a just and reasonable fee may be fixed and allowed to him for his services, and that the balance of the moneys so received may be paid to- her. The petition is verified by her affidavit, and contains charges of improper and oppressive conduct on the part of Westervelt in the following respects, viz.:

(a) Improper conduct in securing possession of the money paid by Lynde upon the settlement; the averment -being that in anticipation of the settlement Westervelt had induced her to give him a general power of attorney to endorse checks by false representations as to the purpose for which he intended to use it.

(&) That Westervelt, on obtaining the money, unjustly retained from it the charges above mentioned, aggregating $22,-413.21. ‘ She avers that Westervelt’s charges were exorbitant and unconscionable; that she had never entered into any contract or agreement entitling him to retain such charges, and that she had not employed Mr. Bruce and Messrs. Gayley & Fleming, nor entered into any agreement with them.

(c) And the further charge that upon a dispute arising between Mrs. Lynde and Westervelt, with respect to his charges, he had sent her a check for the amount conceded by him to be due to her ($16,086.79), on the face of which were written the words: “In full of all claims In re Lynde v. Lynde or otherwise ;” so that she could not draw the money without admitting that she had no further claim against him.

Upon the filing of her petition and affidavit an order was made by the court of chancery requiring Westervelt to show cause why the prayer of the petition should not be granted. He appeared and filed an answer to the petition, accompanied by voluminous affidavits purporting to give a circumstantial account of the transactions in question.

He admits receipt of the proceeds of settlement, gives an account of the circumstances under which he obtained from her the power of attorney, which does not differ materially from her account of the matter, and admits without qualification the third charge above specified. At the same time he attempts to justify the fee of $15,000 charged for his own services on the ground that at the time he was employed by Mrs. Lynde an express agreement was made between them to the effect that he should take proceedings in her .behalf seeking to recover alimony from her husband, that she should pay the disbursements incident to such proceedings, and that for his services he should receive a fee contingent upon the recovery of alimony and proportionate to the amount recovered, to' wit, one-third of the recovery if the matter did not involve protracted litigation or many appeals or an unusual amount of work; otherwise one-half of the recovery. He also says that some time after the commencement of his employment Mrs. Lynde authorized the employment of associate counsel, whose fees were to be paid by her out of the gross recovery, before division thereof under the contract between her and Westervelt. The charge of $4,900 for counsel fees of associates is justified under this agreement. The charge of $2,513.21 is claimed to be due to Westervelt for taxed costs and disbursements ; how much of this amount represents disbursements and how much attorney’s or solicitor’s fees is not stated.

The case was disposed of by the learned vice-chancellor upon the petition and answer, and the ex parte affidavits.

Before proceeding to a consideration of the merits, a question of jurisdiction requires to be dealt with.

The fundamental ground upon which rests the jurisdiction that is invoked in the present case is that attorneys and solicitors are officers of the respective courts in which they practice. They, like judges, clerks and sheriffs, are a part of the machinery of the law created for the administration of justice. It is obvious that justice is not executed by the entry of a judgment or the making of a decree in favor of one suitor and against another; nor is it completely executed when the defeated suitor is required to discharge the liability thus imposed. If payment is made by him to the opposing solicitor, it is made to an officer of the court, and, in a broad sense, is paid into court, as truly so as if paid to the clerk. In order completely to execute justice, it still remains for that officer’s just compensation to be paid and for the successful suitor to be dismissed with the net avails of the litigation.

It is on the ground of this relation that courts of justice, in favor of their officers, enforce a lien upon moneys, papers and documents that have come to their hands in the course of their duties to secure the payment of their fees. It is on the same ground that courts enforce the equitable rights of an attorney or solicitor against the proceeds of a judgment or decree not yet collected. And it is upon this ground that, when it appears that an attorney or solicitor has received, in his capacity as an officer of the court,.any moneys which his duty requires him to pay over to the client, the court, if necessary, exercises its summary, disciplinary, punitive powers to require the attorney or solicitor to do justice to the client. Illustrative cases are numerous. Phillips v. MacKay, 25 Vr. 319 ; Strong v. Mundy, 7 Dick. Ch. Rep. 833; Delaney v. Husband, 35 Vr. 275; Bowling Green Savings Bank v. Todd, 52 N. Y. 489; Mercer v. Graves (1872), L. R. 7 Q. B. 499; In re Freston (1883), L. R. 11 Q. B. Div. 545; In re Dudley (1883), L. R. 12 Q. B. Div. 44; In re Grey (1892), 2 Q. B. Div. 440.

In the present case Westervelt, in his answer, denies that the moneys in question were collected by him as a solicitor of the court of chancery or by virtue of any proceedings in that court, and alleges that the moneys were paid and collected by virtue of the actions that were brought by him for Mrs. Lynde in the supreme court of the State of Hew York. In his affidavit he says that the settlement which resulted in the payment of the money was in no1 sense due to any proceedings in the court of chancery, except in so far as the decree of that court formed the basis of the several actions in the New York courts; that the moneys in question were not collected by him as an officer of the court of chancery, but as an attorney and counsellor of New York, in suits begun and concluded in New York.

It has, however, been repeatedly held that the summary jurisdiction of the court over attorneys and solicitors is not even confined to matters arising out of litigation, but extends to any case “where the employment is so connected with his professional character as to afford a presumption that his character formed the ground of his employment by the client.” Such is the language of Chief-Justice Abbott, in In re Aitkin (1820), 4 Barn. & Ald. 47. See, also, In re Knight (1822), 1 Bing. 91; In re Gee (1845), 2 Dowl. & L. 997; In re Fairthorne (1846), 3 Dowl. &. L. 548.

Nor will the court desist from requiring its own attorney to do his duty simply because the transaction in question arose in litigation in another court. Ex parte Bodenham (1838), 8 Adolph. & E. 959; In re Greaves (1827), 1 Cromp. & J. 374, note; In re Paterson (1832), 1 Dowl. Pr. 468; Batterson v. Osborne, 18 N. Y. Supp. 431.

Nor from requiring an attorney to perform his duty, although he be the attorney of another court, practicing in the court which exercises the summary jurisdiction. Evans v. Duncombe (1831), 1 Cromp. & J. 372, 1 Tyrw. 283; Thompson v. Gordon (1846), 15 Mees. & W. 611 (per Alderson, B.).

It is therefore deemed a matter of no practical consequence that, after the conclusion of the judicial proceedings in this state, litigation ensued in the State of New York, in which Mr. Westervelt appeared by virtue of his office as an attorney-at-law of that state. The foundation of Mrs. Lynde’s claim was in New Jersey. The court of chancery had jurisdiction to decree alimony as incidental to the divorce. The money was paid in settlement of that decree, both with respect to alimony already accrued and with respect to the duty to pay alimony thereafter. And, so far as appears, no judgment was rendered in any of the New York actions fixing the liability of Mr. Lynde, by the rendition of a money judgment, in any amount beyond that which had accrued prior to the making of the decree in the court of chancery. But, above all, the money came to Mr. Westervelt’s hands by virtue of his original employment as a solicitor in chancery. Except for his holding that office, he would not have been concerned in the matter.

At this point it is further objected that Mr. Westervelt holds his commission to practice in this state, not from the court of chancery, but from the supreme court, to which court alone, it is said, he is amenable generally for his professional acts, wherever performed. This objection is without force. It does not even raise the question whether attorneys of the supreme court, by virtue of that commission, have a right to appear as solicitors in the court of chancery. In this state, while there is a recognized distinction between the functions of an attorney-at-law and those of a solicitor in chancery, yet it is the practice, and has been so from time immemorial, that examinations for admission are held under the auspices of the supreme court, the successful candidates being commissioned by the governor as both attorneys and solicitors. But it is, as we conceive, quite immaterial, for the present purpose, whence Mr. Westervelt derived 'his authority to appear generally as a solicitor in chancery, or whether he had such authority. He admittedly accepted Mrs. Lynde’s retainer to1 appear for her in that capacity, and did so appear. In consequence of that retainer and appearance he finally received the proceeds of the settlement, 'and he is therefore fully amenable to the summary jurisdiction of the court of chancery in the premises. This position is fully sustained by the authorities, already cited, as well as by the reason of the matter.

Turning now to the merits, we perceive that Mr. Westervelt is in possession of a large sum of money received in settlement of Mrs. Lynde’s claim for alimony, past and future; that he asserts a lien upon this money for the amount of the fees and charges already mentioned, and that these fees and charges are justified upon the basis of an express agreement alleged to have been made before the commencement of the proceedings that resulted in the decree for alimony, by which agreement the solicitor was entitled to a large share of the amount recovered.

As already mentioned, Mrs. Lynde denies the making of this agreement. The circumstances of its alleged making, as disclosed by the answer and annexed affidavits, were as follows: Mrs. Lynde at the time resided in Trenton, and occupied a position of clerical employment there. Westervelt lived at Montclair, in this state, and had his office in the city of New York. He had been admitted to the bar of New Jersey in the month of June, 1895, as an attorney-at-law and solicitor in chancery. He was not admitted as a counsellor in this state until the year 1900. He was introduced to Mrs. Lynde, in the month of January, 1896, by one Ball, a New York lawyer of eighteen years’ standing, whose office was in a room adjoining that of Westervelt. Ball himself was a stranger to Mrs. Lynde. The circumstances of the introduction .are detailed in the affidavits of Ball and of Westervelt. Ball swears that he is connected by marriage with the family of Charles W. Lynde, the defendant; that in his capacity as attorney for the sister of Lynde’s father, upon the settlement of the estate of the father, Ball obtained information with reference to the rights and interests of Mrs. Lynde and of Charles W. Lynde; that he wrote to Mrs. Lynde, telling her that she had certain rights and interests which ought to be protected;, that shortly thereafter she called at Ball’s office and he had an interview with her and informed her of the facts out of which grew the proceedings thereafter taken in her behalf by Westervelt; that Mrs. Lynde requested him (Ball) to act as her attorney in obtaining her rights as against Mr. Lynde; that Ball thereupon explained to her that the proceedings necessary to be taken to obtain her rights would, in the first instance, require the services of a New Jersey attorney, and that he therefore could not personally act for her; but he informed her that he could refer her to a friend, who was a member of the New Jersey bar, who could act for her as attorney, and that he (Ball) would aid her by furnishing any information that was within his power; that Mrs. Lynde thereupon requested Ball to introduce her to said New Jersey attorney, and he complied, and introduced her to Westervelt; that Ball was present during the interview which ensued between Mrs. Lynde and Westervelt, an'd that in the course of that interview the agreement already referred to was made between Mrs. Lynde and Westervelt. Westervelt himself gives a- sworn account of the interview, which agrees substantially with that given by Ball. He also says it was he (Westervelt) who suggested taking up the case on a contingent fee; that Mrs. Lynde asked how much that would be, and that he replied that it was usual in such cases to charge from one-third to one-half; whereupon she agreed.

In what we shall hereafter say upon another topic, we must not be understood as in anywise approving the methods by which this agreement was procured, or assenting to the notion that such an agreement, made under such circumstances, would, in any event, be sustained. A client inexperienced in business, coming in response to an invitation, apparently reposing entire confidence in the lawyers and desiring their aid because of the information they possess, at the first interview, makes an agreement binding her to pay, in the event of a successful outcome of the litigation, a fee equal to one-third or one-half the amount recovered. On the lawyer’s own story, the client accepted without question his statement as to the share customarily charged as a contingent fee. It would at the least seem that under such circumstances the burden would rest upon the attorney to show that the bargain was a fair one for the client. The late Ohief-Justice Beasle}', in an opinion holding that because of .the non-adoption in this state of the law of champerty and maintenance, a contract between attorney and client providing for a contingent fee, proportioned to the amount of the recovery, was not necessarily void, at the same time said: “Such contracts will be inspected with jealous vigilance by the courts on account of the delicacy of the relationship of the parties to them, and the most transparent candor and good faith are required on the part of the attorney in these dealings with his client.” Schomp v. Schenck, 11 Vr. 195, 200. And although the case cited by him related to a transaction occurring pendente lite, the same rule has been frequently applied to transactions occurring at or even before the employment of the attorney; the inquiry being whether there existed in fact a relation of trust and confidence between the parties. Arden v. Patterson, 5 Johns. Ch. 44 (per Chancel lor Kent); Allison v. Mills, 26 Conn. 213; Taylor v. Bemiss, 110 U. S. 42 (per Miller, J., at p. 45); Ex parte Plitt, 2 Wall. Jr. 453 (1853) (per Grier, J., at p. 476; per Kane, J., at p. 480); Foster v. Jack, 4 Watts 335 (1835) (per Chief-Justice Gibson, at p. 339); County of Chester v. Barber, 97 Pa. St. 455 (1881) (per Paxson, J., at p. 463); Brown v. Bulkley, 1 McCart. 451, 458; Dunn v. Dunn, 15 Stew. Eq. 431; Porter v. Bergen, 9 Dick. Ch. Rep. 405; Tate v. Williamson (1866), L. R. 2 Ch. App. 55, 61.

But there is another question inherent in the admitted facts of this case, and that is, whether the subject-matter of the supposed contract between Westervelt and Mrs. Lynde, to wit, her claim for allowance of "alimony against her husband, was of such a nature as to admit of being subjected to an engagement of the kind referred to. It is obvious that if her claim was in its essence not assignable, if it was not property, nor a future interest in property, such as could be passed under an equitable assignment, the supposed contract cannot be sustained, oven if made, and made under such circumstances as otherwise would entitle it to recognition and enforcement. For, if her claim was in its nature not assignable, it could not be subjected to an equitable lien by any contract between the parties. And, if any principle of public policy prohibits its assignment, the same result follows.

It is hardly necessary to say that the question thus raised is different from that in Aspinwall v. Aspinwall, 4 Dick. Ch. Rep. 302; S. C., 8 Dick. Ch. Rep. 684, which related to the liability of a husband arising from his express agreement to pay to his wife a fixed allowance during her life for support of herself and her children. Nor is this case ruled by Bullock v. Bullock, 6 Dick. Ch. Rep. 444; S. C., 7 Dick. Ch. Rep. 561; S. C., 28 Vr. 508, which had to do with proceedings in this state for enforcement of past-due alimony decreed by the court of a sister state.

An examination into the history of the allowance of alimony, and the nature and uses of alimony, will demonstrate that a claim for such an allowance is far different from a right of property. It is not a right to recover damages or compensation for injury to property or person or for deprivation of propertjr. Nor is it a claim for a property interest in a share of the husband’s estate.

Alimony, in its origin, was the method by which the spiritual courts of England enforced the duty of support owed by the husband to the wife, during such time as they were legally separated pending the marriage relation. The courts of law could not adequately enforce this duty, but made a clumsy and circuitous attempt to do so, under some circumstances, by employing the fiction that a wife, living apart from her husband by reason of his fault, was his agent for the purpose of binding him to pay third parties for necessaries furnished to her. Manby v. Scott, 2 Sm. Lead. Cas. *408; Snover v. Blair, 1 Dutch. 94; Vusler v. Cox, 24 Vr. 516.

At the common law a divorce from the bond of matrimony was granted by the ecclesiastical courts only for such causes as rendered the marriage void ab initio. Naturally, alimony was not allowed as an incident to such a divorce, for, there being no marriage, the duty of maintenance had not been undertaken. 2 Bish. M. D. & S. § 855. Divorces a mensa et thoro, however, amounting merely to a legal separation, were granted for causes which rendered it improper or impossible for the parties to live together, and in such case the ecclesiastical court ordered a periodical allowance to be paid by the husband to the wife for her support, the amount thereof being settled at the discretion of the judge in view of all the circumstances of the case, taking into consideration especially the wife’s needs and the husband’s means. The spiritual courts reserved and exercised the power of varying the amount of the alimony, from time to time, as required by change of circumstances. 1 Bl. Com. 441; 2 Bish. M. D. & S. § 828, &c.

Divorces from the bond of matrimony were not granted by the ecclesiastical courts on the ground of adultery or for any other cause which supervened the marriage. For such causes, however, divorces were granted by act of parliament.

In this state the subjeet-mattér of divorce having been, by statute, committed to the court of chancery, and causes for absolute divorce having been allowed other than such as rendered the marriage void ab initio, there followed, as a logical consequence, the allowance of permanent alimony in cases of absolute divorce, as a means of enforcing the continuing duty of support which the husband owed to the wife, and of which he was not permitted to absolve himself by his own misconduct, although that misconduct resulted in a dissolution of the marriage.

By the act of December 2d, 1794 (Pat. L. of 1794 p. 143), giving jurisdiction to the court of chancery in cases of divorce and specifying the causes, it was, by section- 7, provided as follows:

“That when a divorce shall be decreed on account of the parties being within the prohibited degrees, or for the cause of adultery or extreme cruelty, the chancery shall, and may, in every such divorce* take such order touching the care, and maintenance of the children of that marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and, if any, the security to be given for the same, as, from the circumstances of the parties, and nature of the case, may be fit, equitable and just.”

On February 3d, 1818, a new act concerning divorce was passed (P. L. of 1818 p. 20), by which the act of 1794 and a supplement thereto, passed in 1795, were repealed. This act of 1818 materially changed the law respecting divorces, and also, for the first time, authorized a suit by the wife against the husband for maintenance (without divorce) in case of abandonment and refusal or neglect té support his wife. The section providing for permanent alimony incidental to- a suit for divorce is as follows:

“Sec. 9. That when a divorce shall be decreed on account of the parties being within the prohibited degrees, or for the cause of adultery or extreme cruelty, it shall and may be lawful for the court of chancery to take such order touching the alimony and maintenance of the wife and also touching the care and maintenance of the children, or any of them, by the said husband-, as from the circumstances of the parties and the nature of the case shall tie lit, reasonable and just, and in case a wife is the complainant to order the defendant to give reasonable security for such alimony and maintenance, and upon his neglect or refusal to give such reasonable security as shall be required of him, or upon default of him and his surety, if any there be, to pay or provide such alimony and maintenance, to award and issue process for the immediate sequestration of the defendant’s personal estate and the rents and profits of his real estate, and to appoint a receiver thereof and- cause such personal estate, and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied towards such maintenance and allowance, or to such, maintenance or allowance as to the said court shall from time to time seem reasonable and just, or to enforce the performance of the said decree or orders by such other lawful ways and means as is usual and according to the course and practice of the court of chancery.”

In the revised Divorce act of February 16th, 1820 (P. L. of 1820 p. 43; Rev. of 1821 p. 667), section 9 was amended by omitting the words printed in italics above; the section, as thus amended, having the effect of permitting the allowance of permanent alimony on the granting of a divorce, irrespective of the cause of divorce. Section 9, as thus revised, is substantially identical with section 19 of the revised act concerning divorces, approved March 27th, 1874. Gen. Stat. p. 1269 (1895).

An examination of the statute shows clearly that alimony is imposed as a personal duty upon the husband for the personal benefit and support of the wife, or of the wife and children, in case there be children. The amount of the allowance, the method of its enforcement, the method of its application, and the security to be exacted of the husband for its payment, are all confided to the discretion of the chancellor; and he is left at liberty to increase or decrease the amount of the alimony, from time to time, according to the circumstances- of the case. It will be observed that the statutory scheme is modeled closely after the practice of the ecclesiastical courts of England with reference to alimony. The purpose is to require the husband to pay- to- the wife periodically such sum as, in view of his circumstances and the necessities of the wife, will be a reasonable fulfillment of his continuing duty to support her. The purpose is not to enrich the wife. The ecclesiastical courts, indeed, would not ordinarily enforce arrears of alimony extending beyond a year. De Blaquiere v. De Blaquiere (1830), 3 Hagg. Ec. 322. And it was in view of the close analogy between our statutory alimony and that allowed by the ecclesiastical courts that this court held that, by force of the statute, alimony, as incidental to a divorce a vinculo, could not be given in a gross sum, nor in a portion of the real estate of the husband. Calame v. Calame, 10 C. E. Gr. 548. And the same view was adopted by the late Chancellor McGill, in Lynde v. Lynde, 9 Dick. Ch. Rep. 476, whose opinion was adopted by this court. 10 Dick. Ch. Rep. 591.

It will be observed that in onr statute alimony on a divorce a vinculo is placed on the same basis as that which is allowed on a divorce a, mensa et thoro. Both are provided for by the same section of the act, and both are placed within the discretion of the court of chancery, so far as concerns their adjustment, from time to time, according to the varying circumstances of the parties. 2 Bish. M. D. & S. §§ 1038, 1048.

It follows, as a ne'cessary consequence of what has been said, that a wife’s claim for an allowance of alimony is a purely personal right, and not, in any sense, a property right. It is, in its nature, not susceptible of assignment by the wife to another, nor capable of enjoyment by her in anticipation. And this result is fully sustained by the authorities.

In Miller v. Miller, Sax. 386, there were articles of separation binding the wife to accept a nominal sum annually for her support. Under the circumstances of the case it was held that she was not entitled to have the articles of separation set aside, but the master who heard the cause proceeded to inquire whether these articles would bar the complainant from the recovery of alimony, and he held they would not.

An examination of the English cases will be useful.

In Stones v. Cook (1834), 7 Sim. 22; S. C. (1835), 8 Sim. 321, note, Vice-Chancellor Shadwell said that the ecclesiastical court would probably allow the wife’s executors to enforce payment of arrears of alimony, accrued in her lifetime, against the husband, and that, for this reason, a bill in chancery in aid of the ecclesiastical jurisdiction was not necessary. But as the case was in doubt, the learned vice-chancellor overruled the demurrer. This decision was reversed by Lord-Chancellor Lyndhurst, who took it for granted that the claim for alimony must cease with the death of the wife; that executors might maintain a suit in the ecclesiastical court, but not for arrears of alimony; and that, notwithstanding this, there was no authority to warrant the court of chancery in entertaining a bill by the wife’s executors against the husband for arrears of alimony accrued prior to her death.

In Vandergucht v. De Blaquiere (1838), 8 Sim. 315; 7 L. J. Ch. 270; 2 Jur. 738, it appeared to the vice-chancellor that a married woman, living separate from her husband, after a decree of divorce a mensa et thoro, and entitled to alimony under the sentence of the ecclesiastical court, had undertaken to charge future installments for payment of necessaries purchased by her. Vice-Chancellor Shadwell said: “Alimony materially differs from separate property. It is liable to be varied by the ecclesiastical court according to the husband’s circumstances; whereas, separate property always remains the same, whatever alteration may take place in the circumstances of the husband.” Hpon this ground he refused to enforce the charge. Afterwards, however, additional proofs having been submitted, Lord-Chancellor Cottenham varied the vice-chancellor’s order with respect to a portion of the fund that had been subjected to the charge, on the ground that this portion appeared not be the fruits of alimony, leaving untouched the title to the alimony. Vandergucht v. De Blaquiere, 5 Mylne & Cr. 229, 244; 3 Jur. 1116. It should be remarked that the circumstance of the wife’s disability to contract, by reason of the coverture, was not alluded to in the case, and indeed is of no consequence. In equity, and also in the ecclesiastical law, a married woman was permitted to charge her separate estate; and so the real question in the case was whether alimony was separate property such-as could be charged.

In re Robinson (1884), 27 Ch. Div. 160. In this case it appeared that the divorce court had made a decree for a judicial separation between the parties and had ordered the husband to pay permanent alimony to the wife in monthly payments. After-wards the husband was declared a lunatic, and, in the lunacy matter, an order was made for the payment out of his estate of an annuity to the wife, until further order, equivalent to the alimony theretofore decreed by the divorce court. After the making of this order the wife assigned the annuity to a third party, and the assignee applied by petition to have the' annuity paid to him. It was held by the court of appeal that the petition must be refused, on the ground that whether the annuity was considered as alimony or as an allowance made to the wife by the court in lunacy, it was in either case not assignable. In the reasoning of the lords-justices, the decision was based on the ground that the annual recurring payments (whether considered strictly as alimony or not) were for the personal benefit of the wife, and were in their nature inalienable; that such future payments were not in the nature of property, but were payments made to the wife for her maintenance, of which she could not deprive herself by anticipation.

Harrison, v. Harrison (1888), 13 Prob. Div. 180. In this case a decree for dissolution of marriage had been made on the wife’s petition, with an order requiring her husband to secure to her an annuity for life. It was held in the court of appeal that such an annuity, under the terms of the statute, differed from alimony in that it was not capable of being withdrawn. The annuity was therefore held to be property, such as might be subjected to a charge for the benefit of the solicitors who had recovered it, but the court of appeal refused, in the exercise of its discretion, to make the order under the circumstances of the case.

In Watkins v. Watkins (1896), Prob. Div. 222, it was held by the court of appeal that sums of money ordered to be paid by the husband for the maintenance of his divorced wife, after a divorce a vinculo, under authority of a statute which permitted the court to reduce the allowance fixed or discharge the order for maintenance, but not to increase the allowance, were so far analogous to the alimony of the ecclesiastical law that they should be treated as a purely personal allowance which could neither be alienated nor released so long as the order subsists. In the judgments delivered by the lords-justiees, no doubt was entertained that permanent alimony, which is under the control of the court, and can be either increased, decreased or suspended at the discretion of the court, is, in its essence, inalienable.

In Linton v. Linton (1885), 15 Q. B. Div. 239; 54 L. J. Q. B. 529; 33 W. R. 714; 2 Morrell 179; 49 J. P. 597, it was held in the court of appeal that future payments of alimony were not capable of being valued, and were not a "debt or liability” within the meaning of the Bankruptcy act, and so could not be proven in the bankruptcy of the husband; and that, notwithstanding his bankruptcy, he was still liable to pay the alimony.

In re Hawkins (1894), 1 Q. B. 25; 10 R. 29; 69 L. T. 769; 42 W. R. 202; 1 Mans. B. R. 6. It was held by the queen’s bench division that arrears of alimony which accrued after the date of a receiving order in bankruptcy, and before proof, were not provable in bankruptcy; and it was said by Vaughan Williams, J., that such arrears would not be provable whether they accrued before or after the date of the receiving order.

In Kerr v. Kerr (1897), 2 Q. B. 439; 66 L. J. Q. B. 838; 77 L. T. 29; 46 W. R. 46; 4 Mans. 207, it was held that arrears of alimony, which accrue before the making of a receiving order in bankruptcy against the husband, are not provable by the wife in bankruptcy. In this case, Vaughan Williams, J., said: “The practice of the divorce division so much treats the sums periodically payable under its order as a fund for maintenance and not as propertjr, and so much keeps its hand on the obligation to make these periodical payments for maintenance, that it is á searching rule that the court will not, in the absence of special circumstances, make an order enforcing more than one year’s arrears.”

Hot only does it follow, from the very nature of alimony, that it cannot be subjected in advance to a charge in favor of the solicitor through whose services it is awarded, but a like result follows from the plainest principles of public policy. According to the familiar practice of the court of chancery, the taxed costs ahd reasonable counsel fees of the wife are awarded against her husband. Westcott v. Hinckley, 27 Vr. 343, is an authority to the effect that there exists no legal liability upon the husband to pay such costs and counsel fees, and that they rest exclusively in the discretion of the chancellor. Applications for such allowances, as well as for alimony, peculiarly call for good faith and candor on the part of the applicant. It is a fraud on the court, and also upon the husband, for such an application to be based upon the supposed necessities of the wife, when in truth she has bartered away in advance a share of that which she is to receive. The present case furnishes a forcible illustration of the consequences that would flow from countenancing bargains made between the wife and her solicitor, with the design of appealing to the discretion of the chancellor for an allowance under the name of alimony, when in truth perhaps one-third or one-half of the entire amount (as in this case) is to be appropriated not to the needs of the wife, hut to the use of the solicitor. The chancellor here allowed a large sum for alimony, accrued between the date of the application and the final adjudication; he also allowed the usual taxed costs, and a counsel fee of $1,000. Can it be supposed that he would have allowed this counsel fee had he known that one-third at least of the accrued alimony was to be diverted to the payment of “legal expenses ?” Or rather, would he not have “taken order” (to use the words of the statute) so as to insure that the alimony allowed should be devoted strictly to the purpose for which it was intended ?

A case quite in point with the one now before us was that of Jordan v. Westerman, 62 Mich. 170 (1886); 4 Am. St. Rep. 836. There a contract made between solicitors and client at the time the former were employed, whereby the client agreed that the solicitors should have'one-half of whatever temporary or permanent alimony the court should require the defendant to pay, was held void. This decision is particularly apt as authority, because the statute law of Michigan respecting allowance of alimony pendente lite, and of permanent alimony as incidental to divorce, does not differ in any feature, essential to the present inquiry, from the law and practice governing alimony in this state. The contract was objected to on three grounds, viz., (a) that the plaintiff as a married woman was incapable of making a contract; (b) that the subject-matter was not capable of being assigned; (c) that the contract was void as against public policy. The court passed by the first of these without argument, and sustained both the other grounds of objection. The reasoning of the opinion is very able and instructive.

As we have reached the conclusion that Mr. Westervelt is not entitled to impose a lien upon the fund in question for the amount of his claim, it becomes unnecessary to consider those allegations of Mrs. Iynde?s petition which relate to the power of attorney. For, whether he acquired possession of the fund fairly or not, in either case he is not entitled to retain possession of it for the purpose of enforcing his claim. It is not doubted that he has rendered services of much value to Mrs. Lynde. For these he should be paid a reasonable sum. He claims to have paid $4,900 to Mr. Bruce and Messrs. Gayley & Fleming, the counsel who were concerned in the litigation. It should be stated that the ease shows no ground for any criticism upon these gentlemen, and none is intimated. But, so far as appears, the amount of their fees was fixed without the approval of Mrs. Lynde being either given or asked. Moreover, she denies having authorized their employment at her expense. Supposing Westervelt has paid them the $4,900 as he claims, it remains to be determined, as between him and Mrs. Lynde, whether these fees are chargeable against her, and, if so, whether they are reasonable. Any sum she is chargeable with on that account should be taken into consideration in fixing the amount to be allowed to Westervelt for his services. In his affidavit he claims to have paid a large sum of money out of the fund in question to Mr. Ball, the Hew York lawyer, who introduced him to Mrs. Lynde. This payment, if made, appears to have been entirely without warrant, and is not to be credited to Mr. Westervelt as a disbursement. The bill of $2,513.21 will, of .course, be the subject of inquiry. It was said upon the argument that Mrs. Lynde had, with Westervelt’s consent, drawn the money upon the check for $16,086.79, after erasing the words “in full,” &e. If this is true, that amount will, of course, be credited to him.

The order appealed from should be reversed, and a new order directed to be made requiring the respondent, James Westervelt, to pay forthwith into the hands of the clerk in chancery, or to such other custodian as the court of chancery may designate, the entire sum of $38,500 above referred to-, after deducting the amount of counsel fees actually paid by him to Mr. Bruce and •to Messrs. Gayley & Fleming (not exceeding, in the aggregate, $4,900), and deducting an amount not exceeding $2,513.21 for other disbursements and taxed costs paid by Westervelt from the fund of $38,500, or chargeable thereon, and after deducting also the amount of the $16,086.79 check sent by him to Mrs. Lynde, if it appears that she has collected the money thereon. Upon the payment being made into court, the court of chancery -should then proceed, in a summary way, to ascertain and determine what is reasonable compensation for Mr. Westervelt’s professional services rendered in Mrs. Lynde’s behalf in the; litigation above referred to, and also to inquire into the reasonableness of the fees paid to Mr. Bruce and Messrs. Cayley & Fleming, and whether these are properly chargeable to Mrs. Lynde; and also to inquire into the bill of $2,513.21! From any amount found due to Mr. Westervelt there should be deducted the costs of the proceedings, including the costs of this appeal, and also such part, if any, of the $4,900 and $2,513.21 as the court may find to be properly chargeable against his compensation, or not properly chargeable to Mrs. Lynde; the balance, if any, of his compensation to be paid to him, and the residue of the fund to go to Mrs. Lynde. If, upon taking the account, the balance appears to be against Mr. Westervelt, he should, of course, be required to pay it.

Let the order appealed from be reversed, and the cause remitted to the court of chancery, to be there proceeded with in accordance with the views above expressed.

For reversal—Dixon, Garrison, Collins, Fort, Garretson, Pitney, Bogert, Adams, Vrede'nburgh:, Voorhees—10.

For affirmance—None.