In re Evans' Will — 68 N.Y.S. 936

Majority

p. 936

(33 Misc. Rep. 567.)

In re EVANS’ WILL.

(Surrogate’s Court, New York County.

January, 1901.)

Headnote

1. Wills—Abandonment on Contest—Riqht op Attorney to Proceed.

Where a contract by which an attorney is employed to contest a will authorizes his client to settle the cause before or after the commencement of the suit, the attorney is not entitled to proceed with the contest after his client has withdrawn, for the purpose of protecting his lien for services.

2. Same.

Where a will contest is abandoned, an application to permit "a witness who testified before a commissioner in Paris to sign his deposition before the probate clerk will be granted.

Application for the probate of the last will of Thomas W. Evans. Application to strike out objections, and to vacate an order for examination of nonresident witnesses.

Application granted.

Wolcott G-. Lane, for proponent.

Grant & Lockwood, for Edward A. Crane individually and as executor.

J. ISToble Hayes, for David Keane, opposed.

It has long been the practice of this court to permit contestants in proceedings to admit wills to probate to withdraw their objections, notwithstanding the protests of their attorneys claiming liens for services. An unreported memorandum of Ransom, S., states the rule, and places it upon the ground that in probate cases the surrogate has special powers and duties imposed upon him by the statute, which vest in him the control, to a great "extent, of the proceedings, irrespective of the wishes of the parties or their attorneys, and that the rights and interests of other parties require that a contest should not be continued to be prosecuted for the mere purpose of determining a controversy between one of the parties in interest and his attorney. In re Wittner (1890) Surr. Dec. 464. I am not disposed to overrule this decision, and, independent of it, I greatly doubt that the filing of objections to the probate of a will can be treated as the assertion of an affirmative cause of action, or as an answer containing a counterclaim, such as to require the establishment of a lien by the attorney under section 66 of the Code of Civil Procedure. However this may be, the agreement in writing made by the attorney Mr. Keane with his clients, which constituted his authority to appear and contest in their behalf, expressly provided that the parties of the second part (the clients) “shall be at liberty at any stage of the case, either before, during, or after suit commenced, to settle or compromise upon such terms as they may desire as to their respective interests.” This reservation, so explicitly made and assented to, must control; and the remedy of the attorney, which must be against the results of the compromise, must be sought in some other tribunal. These considerations require the granting of the application to strike out the objections and to vacate the order for the examination of the nonresident witness to the will, made upon the footing of the objections.

p. 937

There being now no one before the court entitled to resist probate of the will offered, the application to permit the witness who testified before the commissioner in Paris to sign his deposition before the probate clerk must also be granted.

Decreed accordingly.