In re McCormick's Estate

• Decision Date: 10 January 1936
• Citation: 182 A. 485
• Parties: In re McCORMICK'S ESTATE.
• Court: New Jersey Supreme Court

182 A. 485

In re McCORMICK'S ESTATE.

Orphans' Court of New Jersey. Bergen County.

Jan. 10, 1936.

Proceeding in the matter of the estate of Lucy I. McCormick, also known as MacCormick, deceased, by Walter J. Freund, opposed by Charlotte C. McCormick, administratrix. On petition and order to show cause.

Order in accordance with opinion.

Walter J. Freund, of Jersey City, per se.

Kipp & Ashen, of Rutherford, opposed.

LEYDEN, Judge.

This application, seeking the equitable intervention of the court, was originally made in our court of common picas on petition and order to show cause, as a step in the cause there pending, but later transferred by mutual consent to this court. The litigants have agreed that the determination here will be effectual and binding in the action in the pleas.

The petitioner, Walter J. Freund, a duly licensed attorney and counselor at law of the state of New Jersey, seeks to impress a lien for legal services rendered by him to Arthur T. W. MacCormick in the matter of the above estate, and, to the extent of the sum of $150, to discharge the writ of attachment issued out of the court of common pleas in the matter of Charlotte C. McCormick, Plaintiff, v. Arthur T. W. MacCormick, Defendant. The facts are: On January 6, 1930, Lucy I. McCormick died intestate, a resident of this county, leaving her surviving as her only heirs at law and next of kin Charlotte C. McCormick, a sister; Mildred L. McCormick, a sister; Mildred McCormick, an infant, daughter and only child of Gerard C. McCormick, a deceased brother; Hannah McCormick, widow of said Gerard C. McCormick, deceased; Arthur T. W. MacCormick, a brother; and Edmond V. MacCormick, a brother. On October 18, 1933 Charlotte C. McCormick qualified as administratrix of the estate of Lucy I. McCormick, and letters of administration were issued to her.

Subsequently she stated and filed her account as administratrix under citation so to do, and the brothers, Arthur T. W. MacCormick and Edmond V. MacCormick, being dissatisfied with certain items of charge and discharge, filed exceptions thereto. For this purpose Arthur T. W. MacCormick retained the petitioner to act as his proctor; it being agreed that the petitioner's fee would be paid from MacCormick's distributive share of the estate. Some of the exceptions were well taken, and the administratrix was surcharged in the sum of $2,995.71. This resulted in raising the distributive share of Arthur T. W. MacCormick from a negligible amount to the sum of $646.68. On March 6, 1935, by a decree of this court, it was ordered and adjudged that the balance remaining in the hands of the accountant, Charlotte C. McCormick, amounting to $3,233.44, be disposed of according to law, and thereupon Arthur T. W. MacCormick became entitled to receive his distributive share. It was not paid, but on March 25, 1935, a writ of attachment was sued out of the Bergen county court of common pleas at the suit of Charlotte C. McCormick, Plaintiff, v. Arthur T. W. MacCormick, Defendant, wherein it is alleged that on or about the 2d day of June 1931, the plaintiff loaned to the defendant the sum of $600 to be repaid on demand. To the allegations of the complaint, defendant has filed a general denial, and the issues thereby presented are awaiting determination.

Pursuant to the writ, the sheriff of the county of Bergen attached in the hands of Charlotte C. McCormick, as administratrix, the distributive share of Arthur T. W. MacCormick.

MacCormick, though anxious and willing to compensate Mr. Freund in the sum of $150 for the services rendered, is thus prevented from so doing, and the petitioner, anticipating, and rightly so, that the attachment action may defeat his just claim, seeks as one of its officers the protection of the court.

I think his contention is meritorious.

From the earliest times, founded in the common law, an attorney has had the right to retain possession of all documents, money, or other property of his client coming into his hands professionally until a general balance due him for professional services is paid. This right, sometimes called the general or retaining lien, extends to any general balance that may be due to an attorney for professional services, either in the particular matter with which he came into possession of the things retained or in any other matter. 6 C.J. pp. 765, 766, pars. 362, 363.

In 1914 our Legislature recognized the necessity of affording greater protection to attorneys, counselors, and solicitors from unscrupulous clients, and created the familiar statutory lien. The purpose was to broaden the rights of attorneys in the matter of their compensation and to impress a lien upon the client's cause of action...