Opinion
November Term, 1899.
Frank M. Hardenbrook, for the appellant.
John L. Hill, for the respondent.
The action is brought to recover the amount due to the plaintiff under a contract, which is as follows: "We hereby retain and employ James A. Dennison, Esq., Counsellor at Law, to take such proceedings as to him may seem best to test the validity of the will of James W. Lawrence, and in consideration of his services rendered and to be rendered therein we hereby promise and agree to pay to the said James A. Dennison the sum of three thousand dollars, being one thousand dollars for each of us of the moneys in any manner obtained and recovered, for so it being understood and agreed that said James A. Dennison is to take full charge of, and manage said proceeding or proceedings; and if he is unsuccessful he shall receive no compensation for his services."
This agreement was signed by the plaintiff and by the three children of James W. Lawrence, one of whom was the defendant. Under this retainer the plaintiff commenced an action in the Supreme Court, in which action, after setting forth in full the will of James W. Lawrence, the plaintiff prayed that the said last will and testament be ordered, adjudged and declared to be null and void, as unlawfully suspending the absolute ownership of said personal property so left by said defendant, against the provisions of the statute in such case made and provided. Upon the trial of the case at Special Term judgment was entered in favor of the plaintiff, it being then held that the disposition made by the will was void, and that the decedent's estate should be distributed as in case of intestacy. But upon an appeal to the late General Term, in this department, that judgment was reversed and it was held that the ulterior gift over was void, but that the several trusts contained in the 4th, 5th and 6th subdivisions of the 3d paragraph of the will, except the ulterior gifts over, were valid; and upon appeal to the Court of Appeals this judgment of the General Term was affirmed. It would seem, therefore, that in the action instituted by the plaintiff under the retainer he was successful, so far as to obtain an adjudication that the plaintiff would be entitled to a share of the estate in case of the death of either of the beneficiaries without issue.
It also appeared that, subsequent to the final decision of the Court of Appeals in the action brought by the plaintiff under this agreement, one of the children of the testator, who had signed this contract with the plaintiff, died without issue, and her administrator commenced an action against the executor of the will to compel him to divide the amount held in trust for the deceased child among the next of kin of the decedent. With that action this plaintiff had nothing to do. That action was defended by the executor, but it was held by this court ( Brown v. Richter, 25 App. Div. 239), reversing the judgment of the Special Term, that the decedent died intestate as to the remainder in the property after the termination of the life estate of each of his children who should die without issue, and that such remainder was to be divided among the next of kin of the testator, to be ascertained as of the time of his death, holding that one-ninth of the personalty of the estate was to be paid to each of the children of the testator or their representative. The plaintiff in this case claims that the one-ninth to which the defendant was entitled under the decision of this court in the case of Brown v. Richter ( supra) was money obtained and recovered by him under his agreement with the defendant. The will of the testator gave the remainder of his estate, real and personal, to his executors in trust to invest the same and to pay the income to his wife during her life, and, upon her death, to divide the estate into as many equal portions as he had children surviving, the issue of a deceased child to count one in such division, and to pay the income of one of such portions to each of his three children, and, upon the decease of each child without issue, the principal thereof was to be added to the other portions and disposed of as such other portions were to be disposed of. The result of the action brought by the plaintiff was a judgment construing the will so that this provision for the distribution of the remainders held for the lives of testator's children by which the principal was to be added to the portions held for the surviving children upon the death of each child without issue was invalid, and that at the death of each child the amount held in trust for that child, where the child left no issue, was to be divided among the next of kin of the testator; and it was under this judgment that the plaintiff became entitled to one-ninth of the residuary estate upon the death of Caroline L. Brown, one of the children of the testator. This one-ninth of the estate of the deceased was money "obtained and recovered" for the defendant by the action brought by the plaintiff, as it was by the judgment in that action that the defendant's right to this part of the estate was determined; and, when the defendant became entitled to receive that part of the estate, he was bound to pay the sum of $1,000 to the plaintiff. The action in this court with which the plaintiff had nothing to do was merely to determine whether the plaintiff would be entitled to one-half of a third of the estate or one-third of such third, not as to whether he was to receive any part of the estate.
It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.