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(110 U. S. 61)


(January 7, 1884.)



Testator bequeathed certain property to his executors in trust for his daughter for

life, and after her death for her children. There were also bequests to two religious societies. All the parties were citizens of Illinois, except the societies, wbich were incorporated elsewhere. In a suit by the daughter to annul the will, where the executors and the religious corporations were made parties defendant, held, that the executors, representing the children, were necessary partics to the controversy, and that the religious societies could not, therefore, remove the suit into a federal court.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

Geo. P. Strong, for appellants.
Gustavus Koerner, for appellee.

Waite, C. J. This is an appeal from an order remanding a cause which has been removed from a state court. The case is as follows: Isaac Foreman, a citizen of Illinois, died on the twenty-eighth of October, 1878, leaving a will by which, after devising certain propgerty to his wife, Rebecca Foreman, for life, he appointed John J. Thomas, Frederick H. Pieper, and Theophilus Harrison, all citizens of Illinois, his executors. After directing his executors to convert all his property into money, he proceeded as follows:

“(4) After the payment of all my just debts, I give and bequeath to my said executors the sum of two thousand dollars ($2,000) in trust for the use and benefit of my daughter, Mary Price, during her natural life. I de sire my said executors to safely loan on interest said sum of money, and pay to my said daughter the interest or profits thereof annually during her life, and after her death the proceeds or interest thereof to be paid annually for the maintenance and education of her child or children, and such principal sum to be paid to her child or children when he, she, or they become of age. And should my said daughter die leaving no child or children, or should all of them die before coming of age, then the said sum of two thousand dollars shall be payable by my said executors, two-thirds thereof to the American Bible Society, and one-third thereof to the Missionary Society of the Methodist Episcopal Church of the United States of America.”

All the residue of the proceeds of his property were to be paid over to the two societies in the same proportions.

This suit was begun by Mary Price, a citizen of Illinois, the daugh. ter, on the nineteenth of November, 1878, to set aside the will on the ground that the testator was of unsound mind when it was made. The widow, the executors, and the two societies were all made defendants. A joint answer was filed by all the defendants on the fourteenth of January, 1879. On the twenty-first of September, 1880, the widow filed a separate answer, in which she set forth her election to renounce the will, and take her dower and legal share of the estate of her hus. band. She therefore disclaimed all interest in the controversy. Thereupon the two societies filed a petition for the removal of the suit to the circuit court of the United States for the southern district of Illinois, under the third subdivision of section 639 of the Revised Statutes, on account of “prejudice and local influence.” When the care got to the circuit court it was remanded on the ground that the executors were necessary defendants and citizens of the same state with the complainant. To reverse that order this appeal was taken. That a suit cannot be removed under the third subdivision of section 639, unless all the parties on one side of the controversy are citizens of different states from those on the other, was settled in the cases of the Sewing machine Cos. 18 Wall. 587, and Vannerar v. Bryant, 21 Wall. 43; and that the executors were necessary parties we have no doubt. The sum of $2,000 was specifically bequeathed to them in trust for the complainant, Mrs. Price, during her life, and after her death for her children, or, in case of their death before coming of age, for the two societies. The interest of the children is left entirely to the protection of the executors, and is not represented either by the mother, who is complainant, or by the societies, who are defendants. If the children had united with the mother in contesting the will the case might have been different, but they have not done so, and their interests must be treated accordingly.

Without, therefore, deciding any of the other questions which have been argued, or might be suggested, the order remanding the case is affirmed.

(110 U. S. 42)

TAYLOR and another v. BEMISS and others.

BEMIss and others v. TAYLOR and another.

BEMISS (otherwise WILLIS) v. Bemiss and others.

(January 7, 1884.)



A tutrix of minor children, legally appointed in Louisiana, is authorized, in pur

suance of the duty imposed upon her of prosecuting the legal claims of the children, to bind them by a contract with an attorney for the prosecution of

the claim. Euch a contract for the prosecution of a claim against the United States is not

void, because the amount of compensation is made contingent upon success, or upon the sum recovered, unless it appears that the agreement was clearls

extortionate, or that the attorney bas taken an undue advantage of his client. Where, by special act of congress, monev was made payable to certain minor chil.

dren in Louisiana, held, that a payment in the District of Columbia, to she attorney of their tutrix, was a valid payment.

Appeals from the Supreme Court of the District of Columbia. Geo. S. Boutwell, for Taylor and Wood. Enoch Totten, for Bemiss and others. F. T. Browning, for L. J. Bemiss. * MILLER, J. Laura J. Bemiss, widow of John Bemiss, having a claim against the United States pending before the commission com. monly called the southern claims commission, under the act of March 3, 1871, employed George Taylor and F. C. Wood, attorneys at law, residing in Washington City, to prosecute said claim, and by an in. strument in writing agreed to give them 50 per cent. of the amount which might be recovered. The sum recovered was $27,310, and, under a power of attorney given by her to Mr. Taylor, he received from the treasury the sum of $14,598.33, and Mrs. Bemiss the balance, of $12,711.67. The present suit originates in a bill in chancery brought by Belle Bemiss, Elizabeth Bemiss, and Mattie Bemiss, minor children of Mrs. Bemiss and of her husband, John Bemiss, deceased, to recover of Taylor and Wood, and of Mrs. Bemiss, the money thus received. Mrs. Bemiss makes her answer a cross-bill against Taylor and Wood, and asserts the invalidity of her contract with them for compensation, and prays also that they may be required to refund the money which they received under it. To the bill and cross-bill Taylor and Wood answer, under oath, (and their answer is in no material matter disproved,) that they were employed by Mrs. Bemiss by a letter written from Louisiana, where she resided, asking them to accept a retainer in the case, by reason of a suggestion of a friend of hers in Louisiana, and she offered them 50 per cent. of the amount recovered as their compensation. To this they assented, and inclosed her a contract to that effect, which she signed and returned to them. She also executed a power of attorney to them, authorizing them to manage the case and receive the sum awarded to her. The answer further states that, without any sug. gestion from them, Mrs. Bemiss employed, at different times, two other attorneys in Louisiana, to each of whom she agreed to pay 10 per cent. of the amount of the award, and that defendants had advanced to Mrs. Bemiss, pending the litigation, the sum of $800, which, with interest to the time they received the money from the treasury, was added to the one-half they were entitled to by the terms of the contract. They also paid the 10 per cent. out of their share to each of the attorneys employed by her, so that, deducting this 20 per cent., and the money advanced to her and its interest, they received for their compensation only 30 per cent. of the money recovered, or $8,193.

It is urged against the validity of this contract of employment that Mrs. Bemiss had no authority to bind her children, the minor heirs of her deceased husband, by such a contract, and that as to their interest in the award it is void. The bill of the minor heirs states that Mrs. Bemiss had been appointed by the proper court in Louisiana


uatural tutrix of these children. We are of opinion that this appointarent made it her duty to take the necessary legal steps to obtain this money from the United States, and that, whether the suit was brought in her own name or in hers jointly with her children, she was equally bound to prosecute it with diligence, and to do all that was necessary to recover the money. It would be a queer condition of the law if, while it imposed this obligation upon her, it gave her no authority to employ counsel to prosecute the claim before the only legal tribunal which could allow it; and if she could employ counsel, it follows, as a matter of course, she could make a contract for the amount of their compensation. This agreement would bind her as tutrix as well as in her individual right, and it is in both characters she professes to contract. Such undoubtedly is the law of Louisiana, which must govern as to her powers as tutrix, since it is there she was appointed, and there both she and her children resided when she made the agreement with Taylor and Wood. Of her authority to make such a contract as tutrix we have no doubt.

"Another objection raised is that, since by the act of congress mak-ing the appropriation to pay the money, it is expressly made payable to Mrs. Bemiss and her children by name, her authority as tutrix under the Louisiana appointment did not authorize payment to her in the District of Columbia. The subject of such payments by the United States to administrators appointed in the states is very fully discussed in the case of Wyman v. U. S., [ante, 417,] decided simultaneously with the present case, and upon the principles there laid down we are of opinion that payment to Mrs. Bemiss as tutrix under the Louisiana appointment is a valid payment, and that she is responsible under that appointment, and the receipt of the money by herself and by her authorized attorney, to these minors, if they have been wronged. And this is a matter of accounting with them in her fiduciary character of tutrix.

It remains to be considered whether there is in this contract of em. ployment anything which, after it has been fully executed on both sides, should require it to be declared void in a court of equity, and the money received under it returned. It was decided in the case of Stanton v. Embry, 93 U. S. 548, that contracts by attorneys for compensation in prosecuting claims against the United States were not void because the amount of it was made contingent upon success, or upon the sum recovered. And the well-known difficulties and delays in obtaining payment of just claims which are not within the ordinary course of procedure of the auditing officers of the government, justifies a liberal compensation in successful cases, where none is to be received in case of failure. Any other rule would work much hardship in cases of creditors of small means, residing far from the seat of government, who can give neither money nor personal attention to securing their rights. This, however, does not remove the suspicion which naturally attaches to such contracts, and where it can be shown

that they are obtained from the suitor by any undue influence of the

attorney over the client, or by any fraud or imposition, or that the . compensation is clearly excessive, so as to amount to extortion, the

court will in a proper case protect the party aggrieved. While 50 per cent. seems to be more than a fair proportion in the division between client and attorney in an ordinary case, we are not prepared to assume that it is extortionate for that reason alone, and the testimony of the lawyers on that subject, taken as experts, does not justify such a conclusion. In the case before us, it is beyond dispute that the attorneys of Mrs. Bemiss exercised no influence over her what. ever in adjusting the amount of the fee stipulated in the agreement. They had never known her until this employment, and it was through no suggestion of theirs or any agent of theirs that she applied to them. Her first letter to them on the subject made the offer of 50 per cent., and no more was asked for by them. The evidence of two of the judges who composed the court shows that the case was a difficult and complicated one, and that both Taylor and Wood attended to it vigorously, and gave it much time and attention, and that it was in court a considerable time. It seems probable that Mrs. Bemiss was an impatient and not very wise woman, but there is no evidence of such weakness of mind as to incapacitate her from making a contract, and there is absolutely no evidence of any advantage taken of her at any stage of the proceeding. On the contrary, the payment by these principal attorneys of two-fifths of the fee they had contracted for to other attorneys employed by her without consulting them, for which she was bound, while they were not, shows anything but harsh or oppressive conduct, and would go far to mitigate any objection to enforcing the contract founded on the idea of excessive compensation.

We are of opinion that on the appeal of Taylor and Wood the decree of the court below must be reversed, and ns the minor chil. dren, plaintiffs below, assign no error, because they had no decree against their mother, a decree must be rendered in that court dis. missing the bill.

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