Ex parte PLITT et al., 19 F. Cas. 875

KANE, District Judge. The estate which has been the subject of litigation, remains in the hands of the administrator. There has been no order that the fund, or the residue of it, should be paid into court. It is therefore, as it has been, a fund subject to our decree, but not in our registry; within the judicial control, but over which that control is yet to be exercised. It is not moneys “deposited” in court, or moneys “received, kept, and to be paid out” by the clerk.

That officer has, therefore, no claim upon it, under either the former or the present fee bill, of the sort which has been contended for, except so far as he may appear, upon future taxation, to have disbursed any portions of it under the occasional orders of the court. Over and above the fees of office, this fund is subject to three classes of charge: 1st. The necessary expenses of ascertaining it, and reducing it into possession. 2nd. A reasonable compensation for its safe keeping, and the supervision of its interests. 3rd.

The expenses of ascertaining the proper distributees, and making distribution among them. All of these would be included by the practice of the English chancery, in the general designation of expenses, or of costs taxable between solicitor and client; and as such, would in a case like this be allowed against the fund. See the orders in Stanton v. Hatfield, 1 Keen, 358, and in Gaunt v. Taylor, 2 Hare, 413, and the opinion of the Vice-Chancellor in Thompson v. Cooper, 2 Colly. 90.

In the first of these classes, we are disposed to include certain costs and expenses, which were paid by John Aspden, of London, for a commission to England, and in the early proceedings in the state court at Philadelphia against the executor; and we add to these the sum of one thousand dollars, as a compensation for his vigilant and effective service in securing a very large amount of money to the estate, and in lieu of all expenses incurred by him in and about the same. The administrator de bonis non is the only person before us whose claim would have a place in the second class.

He has, however, been satisfied for his expenses, care and trouble, by an allowance in the orphans’ court, where he has settled his administration account. Among the expenses of ascertaining the proper distributees of this fund, or, more properly speaking, as among the costs to be taxed under the decree, we allow the several charges incurred by John Aspden, of Lancashire, in and about the execution of commissions to examine witnesses abroad. The claim of Dr. Jackson seems to us plainly outside of all the classes we have indicated.

His action did not contribute to the increase of the fund, or aid the court in determining the mode of its distribution. He was the administrator in this country of one of the suitors for the estate, and he sought unsuccessfully to become administrator in England also. He failed to obtain a decree in favour of the interests which he represented; and we do not see that he has any other rights, against the fund than the other parties who shared his failure. The claims for professional services rendered in this cause by Mr. Webster and Mr. Gilpin, refer themselves to the third class of which we have spoken.

We have no doubt of the power of the court, where a fund is within its control, as in the case before us, to take care of the rights of the solicitors who have claims against it, whether for their costs, technically speaking, or their .reasonable counsel fees. We can regard them in no other light than as meritorious assignees of a

part interest; and they are so regarded in the English chancery. White v. Pearce, 7 Hare, 278. The principle and the rule are fully established in that country by the cases which have been already cited; and these are sustained in the United States by .the New York adjudications, both at common law and in equity (Pinder v. Morris, 3 Caines, 165; Bradt v. Koon, 4 Cow. 416; Talcott v. Bronson, 4 Paige, 501); and they are recog-nised by the supreme court of Pennsylvania (Balsbaugh v. Frazer, 7 Har. [19 Pa. St.] 98).

Whether it was originally wise to invest the due compensation of counsel with the incidents of a legal demand, and whether the dignity, and with it the usefulness of the profession, might not have been better secured by leaving its members to a merely honour-ary recourse, has divided the opinions of intelligent and honest thinkers. But the question is now, and has long been a merely speculative one in Pennsylvania; and our courts have either to remodel the law, or to enforce it as it stands, by admitting the lawyer to sue for his quantum meruit.

So, too, of the practice, which has obtained to a considerable extent, of stipulating beforehand for professional fees, contingent on the result of the litigation. It is not a practice to be generally commended, exposing honourable men not unfrequently to misapprehension and illiberal remark, and giving the apparent sanction of their example to conduct, which they would be among the foremost to reprehend.

Such contracts may sometimes be necessary in a community such as that of Pennsylvania has been, and perhaps as it is yet; and where they have been made in abundant good faith — uberrima fide —without suppression or reserve of fact, or exaggeration of apprehended difficulties, or undue influence of any sort or degree; and where the compensation bargained for is absolutely just and fair, so that the transaction is characterized throughout by “all good fidelity to the client;” the court will hold such contracts to be valid.

But it is unnecessary to say, that such contracts, as they can scarcely be excepted from the general rule, which denounces as suspicious the dealings of fiduciaries with those under their protection, must undergo the most exact and jealous scrutiny before they can expect the judicial ratification. These general observations have been invited by some portions of the argument; they have no purposed application to anything presented by the facts before us. Indeed, the case may be regarded as illustrating very fairly the occasional policy of these contracts.

But a small proportion of those, whose rights in the Aspden estate have been Anally affirmed by the courts, were in circumstances to support the long and costly litigation which those rights have undergone; and the compensation which they engaged to pay in case of success, though large in the aggregate, was altogether moderate, because contingent on the result. The gentlemen who have devoted, for so many years, and through so many discouragements, their talents, mature learning, and untiring energy, to the prosecution of this case through all its chances, have confessedly earned all that they have received.

Included in the per centage which was payable to them, was the agreed compensation for the services of Mr. Webster. But he was not directly a party to the agreement by which the clients bound themselves to the payment. His agreement was with the original counsel, and they were to pay him out of the fee they were themselves to receive. Whether his compensation was to be measured by one standard or another, whether it was specific or contingent as to amount, to be modified by reference to the extent and character of his services, or to be dependent solely on the amount recovered, we are relieved from inquiring.

The clients have complied with the terms of their engagement; and the per centage which they engaged for, and to which Mr. Webster looked, has been paid out of the fund with the consent of all parties, to the gentlemen who were entitled, in the first instance, at least, to receive it. In this the claim of Mr. Webster’s exeeu-tors differs from that which has been presented by Mr. Gilpin. The parties who were before us asserting title as the next of kin, were themselves divided in interest and right, and were represented by different and numerous counsel.

In the progress of the cause, after it had come back to us from the supreme court, we directed a feigned issue to be tried at law between the asserted heir-at-law on the one side, and all those who claimed to be the next of kin, as a single class, on the other. It became necessary, of course, that a limited number of counsel should be elected to represent the two great parties to this issue, and an order of court was made to that effect. Mr.

Gilpin, who had been before retained by one of the parties, having in one aspect a minor interest, and in another an interest adverse to the rest, was chosen at a meeting of all the counsel, as one of the persons to try the cause for the next of kin. The selection was ratified by the court. The effort of Mr. Gil-pin in opening the case, evinced the highest degree of professional ability and research: it is scarcely too much to say that it gained the cause.

The gentlemen who were associated with him on the law side of the court, having been originally retained by parties who were ultimately successful in the secondary contest in equity, have been compensated for their services. With Mr. Gilpin the case is different. Those whom he immediately represented, though victorious in the feigned issue like the rest of the next of kin, were defeated in the contest which followed, and have recovered a comparatively trifling amount.

He has not felt himself authorized, under the circumstances, to accept compensation from his original clients alone, for the services which he rendered to them in common with all the rest, under the order of the court and the appointment of their counsel. The parties, against whom his claim would be sustained at law, as for services rendered at their “instance,” or at least with their “consent” (Balsbaugh v. Frazer, 7 Har. [19 Pa. St.] 95) are numerous and scattered. Some of them have appeared before us by their counsel, to recognize the fitness and justice of the demand asserted for Mr.

Gil-pin: others, admitting its propriety in general terms, have questioned the manner in which it should be assessed among the several parties: others, again, are unrepresented, or decline consenting to its payment from the fund. Now, it is the familiar rule of courts of equity, where a suit has been instituted and carried on for the benefit of many, that all who come in to avail themselves of the decree shall bear their just proportion of the charges. Thompson v. Cooper, 2 Colly. 90, which was a creditor’s suit against an administration; Rogers v. Ross, 4 Johns.

Ch. 608, which was a controversy like the present, growing out of the ambiguous language of a will: and Mason v. Cod-wise, 6 Johns.

Ch. 297, 301, where Chancellor Kent, by the terms of his decretal order, declared that he who comes in under the general decree, “is admitted upon the condition of being contributory to the plaintiff for his proportion of the expense of the suit.” It appears to the court, that if any case can occur, in which this rule should be enforced by holding the fund liable for the remuneration of the solicitor, it is this: where a gentleman has been chosen, by the concurrence of all the parties in interest before this court, to render service for them all; that service to be rendered in a trial at law directed by this court, and by counsel, who, by the further order of this court, were to be specially assigned for its performance;— where the service has been rendered so ably, and with such important results to all; — and where, from the number, position, and relations of the parties, it has been from the first, and yet is impossible that they should unite in tendering to him a just honorary recompense.

And it appears to us also, that where, from the character of the controversy, seven and a half per cent, has been esteemed by the parties themselves a fair compensation to the rest of the counsel who succeeded, the charge of three-quarters of one per cent, should not be deemed a more than adequate return for the successful labours of Mr. Gil-pin. Decree accordingly.