Spellman v. Bankers Trust Co.

• Decision Date: 09 February 1925
• Docket Number: No. 209.,209.
• Citation: 6 F.2d 799
• Parties: SPELLMAN v. BANKERS' TRUST CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

6 F.2d 799 (1925)

SPELLMAN v. BANKERS' TRUST CO. et al.

No. 209.

Circuit Court of Appeals, Second Circuit.

February 9, 1925.

Merle I. St. John, of New York City, for appellant.

Sullivan & Cromwell, of New York City (Ralph Royall, of New York City, of counsel), for respondents.

Before HOUGH, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge.

Appellant sued, claiming to be an equitable assignee of a fractional share of the estate of John H. Flagler, deceased. He is a lawyer of the state of Missouri, but not admitted to practice in New York state. He was employed by one Beatrice F. Flagler, widow of John H. Flagler, by written contract dated September 16, 1922, providing:

"Now, therefore, for and in consideration of the premises and of the legal services rendered and to be rendered her in this behalf the said Beatrice F. Flagler hereby agrees to pay to said Spellman fifty (50) per cent. of whatever may be recovered for her from said John H. Flagler estate or from any beneficiary in his will, in excess of what is left to her under the terms of the will and codicil above referred to, whether same be by money or property judgment in court or by compromise or adjustment before suit is brought or afterwards. * * * If recovery be in property said Beatrice F. Flagler agrees to execute and deliver to said Spellman necessary deeds, assignments, or bills of sale to convey to and vest in him the interest therein contemplated by this contract."

Professional services under this retainer, it is pleaded, consisted of various conferences with his client and others interested in the estate. No settlement with the executors whereby any funds came to Mrs. Flagler was made, nor was there any decree, by consent or otherwise, entered, awarding to her any sums of money or property by reason of the claims set forth as to the invalidity of the will of Flagler. On September 11, 1923, the client terminated this employment. The claim of the appellant is that the widow had an interest in the estate because in his will the testator bequeathed property in violation of section 17 of the Decedent Estate Law of New York; that is to say, that —

"No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more." Consol. Laws, c. 13.

Appellant's contention, as set forth in the original complaint, was that the agreement amounted to an assignment of a one-half interest in whatever sums Mrs. Flagler, his client, was entitled to in the estate of Flagler because of bequests made in violation of section 17 of the Decedent Estate Law of New York. It was argued below, as it is on this appeal, that by the amended pleading and the bill of particulars served the appellant has an equitable assignment through this written agreement of a one-half interest in whatever Mrs. Flagler was entitled to. The appellant, not being a member of the bar to the state of New York, is not entitled to the protection of the statutory lien granted to a lawyer of this state. It being admitted that no funds were obtained by Mrs. Flagler by reason of the services rendered by the appellant, and since it appears that there is no determination that any provision of the will was invalid, either by agreement or judicial decree, there is no fund to which any lien might attach.

The contract of retainer having been made in New York state, we hold that the rights of the parties should be determined under the contract law of New York. In re Paschal, 77 U. S. (10 Wall.) 483, 19 L. Ed. 992. Where an attorney has been discharged he having been retained on the promise of a contingent fee, he is entitled only to the...