(147 N.E.) said Lucinda E. Shaw procured through the | on his payment to her of eighteen thousand fraud or undue influence of Albert W. Meyer?" the petitioner appealed to this court. It is his contention that the order should be reversed. G. L. c. 215, §§ 9, 16, 28. The court appointed a stenographer under section 18, referred to in the record as a commissioner to take evidence. But the case was submitted and is before us on conflicting offers of proof. The question is whether, treating the offers of proof as statements of expected proof, there was evidence on which the issues could be granted by the judge in the exercise of his discretion. Cook v. Mosher, 243 Mass. 149, 152, 137 N. E. 299. dollars she returned to Boston about 1912 The material facts on which the contestant relied were as follows. The testatrix married Charles N. Shaw May 3, 1887, and died December 25, 1923, in the fifty-ninth year of her age. The only issue of the marriage was a child born in early married life, but who died in infancy. During succeeding years Shaw, under the name of Page & Shaw, was a manufacturer of candy, from which business he received a very large income. While the firm in 1912 was incorporated under the name of Page & Shaw, he continued in control of the corporation, and at his direction a certificate for "five hundred shares of the seven per cent. stock" was issued to Lucinda Ellen Shaw, and so remained at her death. But most of the common stock was issued to, and was the property of, Shaw until he sold it in December, 1917, or January, 1918, for a very large sum of money. He also purchased and had conveyed to his wife residential and other real property amounting in value to "at least one hundred and three thousand dollars," of which she died seized. Within two years after marriage they rented a safe deposit box in their joint names, to which each had a key, and the right of access without the presence of the other. Shaw purchased and deposited from time to time investment securities of a high grade amounting to two hundred and seventy thousand dollars. There were also gold coin and bank bills which he had placed in the box aggregating ten thousand dollars, and every item of personal property standing in the name of Mrs. Shaw, who had no known blood relatives or next of kin, had been deposited by her husband. Shaw however had a cousin from whom he eventually became estranged. By uncontrollable rage, used profane and obmutual agreement cross-wills had been duly executed, each spouse giving to the survivor all of his or her property, and these wills were also kept in the box. In 1908 Mrs. Shaw, notwithstanding his objections, went to the city of New York for the purpose of opening and managing a retail candy store under the name of "Page & Shaw," and while there she became very friendly with Albert W. Meyer, one of the beneficiaries named in her will. Upon Shaw's insistence, and scene language without apparent provocation. She also suffered from an incurable internal disease, causing her intense pain, and at times uncontrollable physical agony. On December 6, 1923, although very ill, weak, in a shaking condition, scarcely able to walk, she rode without the knowledge of Shaw to the vault, and removed the will previously made in favor of her husband, and securities of the value of $270,000, as well as the bank bills and gold coin, and after hiring another - box in her own name in which the securities | ry. Cook v. Mosher, 243 Mass. 149, 137 N. E. and moneys were redeposited, she took her 299; Clark v. McNeil, 246 Mass. 256, 140 own will and departed. On the day follow- N. E. 922; Burroughs v. White, 246 Mass. ing her visit she sent for counsel whom she 259, 140 N. E. 940; Angell v. Lighthipe, 249 never had previously consulted, and inform- Mass. 146 N. E. 692. The petitioner ed him that she desired to make a will. however contends that the second issue The instrument now in question was finally should have been limited to the inquiry drafted and signed seven days before her whether the whole will, or only a part, was death. The contestant's offer of proof con- procured through the fraud or undue intains the statement, that during the period fluence of Meyer. The several charities, as of consultation with counsel, and when the well as Harry B. Chessman, Samuel W. will was signed, the testatrix was suffering Towne and Bradford L. Howe, to each of from intense pain, causing her at times to whom the testatrix also gave an annuity for scream with agony, and was under the in- life, with the right after Shaw's death to fluence of opiates most of the time, and was receive in common with Meyer a "partial at all times mentally unbalanced and of un- pro rata distribution of the principal," are sound mind, due to mental anxiety, and the not charged with knowledge of his misconsuffering caused by her incurable disease. duct; nor does it appear that either had Shaw, who knew of the nature of his wife's been promised, or expected a legacy. If Meyillness, was not informed of her critical con- er dominated the mind of the testatrix, and dition until December 14, when he received a because of hostility, the scheme of the enletter from Meyer that "her case was hope- tire will apart from the gifts to himself, was less." With several of his friends he spent to deprive Charles N. Shaw of property which the succeeding days in attempts to obtain he would have inherited if his wife had died information as to her actual condition, but intestate, it could be found by the jury that was unsuccessful. On the evening of Decem- the whole will was tainted with fraud. It ber 22 accompanied by other persons, he went was his will, and not the will of the testatrix. to the house and was admitted by Meyer Emery v. Emery, 218 Mass. 227, 105 who objected to his seeing Mrs. Shaw. But N. E. 879; Neill v. Brackett, 234 Mass. 367, Shaw insisted and went upstairs to her room 370, 126 N. E. 93; Carroll v. Hause, 48 Dick. where he found her completely unconscious. 269. But if this was not shown, only the He immediately left the house, to which parts of the will by which he alone was benhe returned in the early evening of the efited could be set aside, and the second isnext day when as he started to go upstairs sue should be framed accordingly. Old ColMeyer told him to wait. At this time Mrs. ony Trust Co. v. Bailey, supra. On the ap Shaw's voice could be heard, and it was ob- peal of Effie Lighthipe the entry will be, order affirmed. But on the appeal of the vious that she was suffering much pain. Meyer went up and was absent for several min- petitioner, while the first issue is to stand, utes. While he was there some form of the second issue is to be so modified as to read, "Was the will propounded for probate opiate was administered, and when he came down and told Shaw that he could go up, cured to be made in whole or in part by as the last will of said Lucinda E. Shaw proShaw found his wife completely unconscious, the fraud or undue influence of Albert W. and he did not see her again. Meyer exercised upon the said Lucinda E. Shaw, and, if in part, what part?" and as so modified it is affirmed. The will drawn under these alleged circumstances bequeathed to Meyer outright personal property of the appraised value of $66.139.70, and a life interest in real property valued at $25,000, with a yearly annuity of $1,500. But she left none of her estate to Shaw except a portion of the income for his life derived from the residue, to be held in trust. Upon his death the trustee is directed from time to time to make a partial pro rata distribution of the principal to the individual legatees including Meyer when in the judg ment of the trustee such distribution may safely be made. Upon the death of the last survivor of the beneficiaries for life, the trust is to terminate, and the remaining estate is to be distributed among certain charities each of which is specifically named. [4] It cannot be held as matter of law that the issues requested are not supported by expected evidence to be introduced at the trial, the weight of which was for the ju Ordered accordingly. SMITH v. WEEKS et al. (Supreme Judicial Court of Massachusetts. 1. Assignments 30-It is not a defense in equity that assignment sued on was only of part of fund, or that controversy is over enforceable rights of plaintiff. It is not a defense in equity that assignment sued on was only of part of fund, and controversy is over enforceable rights of plaintiff. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) 2. Attorney and client 163,165-Bill In at- fendants severally appeal. Reversed for furtorney's action on assignment of part of in- ther proceedings. terest in estate in consideration of services, past and future, held not demurrable. The fiduciary relation between attorney and client precludes application of conditions governing ordinary mercantile bargaining to contracts between such parties. 4. Champerty and maintenance5 (6)-Assignment to attorney of part of Interest in estate in consideration of services to be rendered in litigating claims against it unenforceable. An absolute assignment to an attorney of part of interest in estate in consideration of services to be rendered in litigating claims against estate is unenforceable. 5. Champerty and mantenance 5 (6)-Assignment to attorney of part of estate as security for services is valid, though absolute in form. If assignment to attorney of part of interest in estate, though absolute in form, was actually given as security for contemplated and necessary professional services, in litigating claims against estate, it was not champertous, and attorney could recover only fair value, with incidental disbursements. 6. Equity 429-Amendment of final decree after its entry is invalid. C. F. Eldredge, of Boston, for appellant Kimball. W. R. Buckminster and J. M. Maloney, both of Boston, for other appellants. A. E. Seagrave, of Fall River, and H. F. Reed, of Boston, for appellee. BRALEY, J. The bill was originally brought against the defendants Weeks and Wellington, as they are trustees under the will of Thomas Dana, and Julian Dana de Cordova, who gave to the plaintiff a partial assignment of the trust funds to which under the provisions of the will he had become entitled. But Cordova having died, Wellington was appointed special administrator of his estate, and having been duly authorized by the court of probate, he appeared to defend, and also filed a cross-bill. The trustees demurred. The demurrer was overruled and they appealed. The presiding judge after making certain findings of fact, and rulings of law on evidence, which is fully reported, entered a final decree dismissing the crossbill, and granting the plaintiff relief, from which the defendants severally appealed. The plaintiff, an attorney at law, received November 17, 1922, from Cordova, his client, the following instrument: "I, Julian Dana de Cordova, in consideration of services rendered and to be rendered by E. Irving Smith in the matter of my interest in the property and funds now held by Arthur J. Wellington and Edgar Weeks, the present Trustees under the will of Thomas Dana, and in further consideration of the agreement by the said Smith to pay out of money he may receive under this assignment debts now owed by me to the amount of twelve thousand dollars ($12,000) do hereby assign, transfer and con Amendment of final decree after its entry vey to the said E. Irving Smith all my right, is invalid. 7. Equity 195-Function of "cross-bill" is to secure affirmative relief, which cannot be administered under answer to original bill. Function of "cross-bill" is to secure affirmative relief, which cannot be administered under answer to original bill. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, CrossBill.] Appeal from Superior Court, Suffolk County; Marcus Morton, Judge. title and interest in and to the said property and funds and all my claim on account thereof against the said trustees to the amount of sixty-two thousand dollars ($62,000), with full authority to the said Smith to collect and receive the same." [1] It is not a defense in equity that the assignment was only of part of the fund, and the controversy is over the enforceable rights of the plaintiff. Security Bank of New York v. Callahan, 220 Mass. 84, 87, 107 N. E. 385. The undisputed material allegations of the bill, and the plaintiff's statements in his anSuit by E. Irving Smith against Edgar swer to the cross-bill, abundantly show that Weeks and Arthur J. Wellington, as trustees he was retained in October, 1922, by Cordova under the will of Thomas Dana, and Julian "to extricate the estate to which De Cordova Dana de Cordova and Robert M. Kimball, had fallen heir from the grasp of certain wherein Arthur J. Wellington, after the persons who had made a loan of $40,000 upon death of Cordova, appeared also as special his expectancy, and now demanded a sum in administrator of his estate, and filed cross- excess of the entire estate." The plaintiff, From a decree dismissing the cross-bill acting under his employment, brought suit and granting plaintiff relief sought, the de- which resulted in saving for his client a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes bill. * * * very substantial part of the trust fund. De signment was of no value. But if it was sucCordova v. Weeks, 246 Mass. 100, 140 N. E. cessful, he was to participate for his own 269. At the date of the assignment, "and benefit in property connected with, and formthereafter De Cordova was without money | ing part of the litigation. The assignment if and without resources, * * * judgments absolute is under such circumstances unenwere outstanding against him and poor debt- forceable. The maintenance of a suit in conor proceedings, and he did not know which sideration of some bargain to have part of way to turn, he feared to lose his the thing in dispute, or some profit out of it, whole estate." It was under these circum- was illegal at common law. Hall v. Hallett, stances that the plaintiff told him "that in 1 Cox. Cas. in Ch. 134; Wood v. Downes, 12 view of the uncertainty of results of litiga- Ves. Jr. 120; Thurston v. Percival, 1 Pick. tion and the doubt whether anything could 415, 416; Belding v. Smythe, 138 Mass. 530; be recovered" he "was entitled to an abso- Boston Bar Association v. Hale, 197 Mass. lute assignment of the trust funds to the ex- 423, 437, 83 N. E. 885; Berman v. Coakley, tent of $50,000 on account of services ren- 243 Mass. 348, 137 N. E. 667, 26 A. L. R. 92. dered and to be rendered." The bill alleges, But even if the judge could properly find on in the fourth paragraph, that the assignment the evidence, that it was the intention of the in so far as the plaintiff's individual inter- parties, that the assignment, although absoests are concerned was in consideration of lute in form, was actually given as security services rendered and to be rendered in re- for contemplated and necessary professional spect to said litigation, and "that the same services and disbursements, and the transacwas received and accepted as payment on ac- tion as thus limited was not champertous, count of said services; that said assignment the plaintiff may recover only their fair valwas made for consideration, and the plaintiff ue, with incidental disbursements. Tapley v. is entitled to the immediate payment, or sat- Coffin, 12 Gray, 420; Ackert v. Barker, 131 isfaction of the same." The third and fourth | Mass. 436; Blaisdell v. Ahern, 144 Mass. prayers are that the plaintiff is entitled ab- 393, 395, 397, 11 N. E. 681, 59 Am. Rep. 99; solutely to the transfer of the amount subject | Delval v. Gagnon, 213 Mass. 203, 99 N. E. to the claim of the defendant Kimball from whom the plaintiff borrowed $1,000 and gave as collateral security a transfer of his interest under the assignment. The judge's findings, that the plaintiff as trustee for Cordova is entitled to $12,000 to be expended in payment of certain debts shown by the exhibit attached to the final decree, the remainder to be returned to the administrator, leaves $50,000 which he ordered the trustees to transfer to the plaintiff. [2] There was due the plaintiff for past services at the date of the assignment $1,200, which according to the plaintiff's own evidence was included in the debts referred to in the assignment, and is also one of the items allowed in the final decree as part of the $12,000 to be received and disbursed by him. But the bill having alleged generally, that the assignment was for past, as well as future services, and the defendants in De Cordova v. Weeks, supra, not being necessary parties to the present suit as the demurrants contended, the interlocutory decree overruling the demurrer should be affirmed. [3-5] It is settled, that the relation of attorney and client is one of trust and confidence. Its fiduciary character precludes the application of conditions governing ordinary mercantile bargaining. The doctrine is founded on public policy. It is demanded by the welfare of society. Manheim v. Woods, 213 Mass. 537, 539, 100 N. E. 747; Rolikatis v. Lovett, 213 Mass. 545, 100 N. E. 748; Holdsworth v. Healey, 249 Mass. 436, 144 N. E. 386. The plaintiff's money was to come out of the fund then subject to the assignor's creditors as security for their debt. If the suit against them failed, the plaintiff's as 1095; Dudley v. Nickerson, 214 Mass. 274. 101 N. E. 465; Bennett v. Tighe, 224 Mass. 159, 112 N. E. 629. During the trial, the judge announced: "I find for the purpose of this case that the $50,000 was substantially more than the plaintiff would have had a right to charge for his services in the absence of any agreement," -and in his final findings says: "The assignment was mainly in consideration of future litigation but in part for past services. The plaintiff if not successful knew that it would be difficult to collect payment for his services, but I am not able to find from the evidence that there was an understanding that he was to receive no pay if not successful." [6] But, after treating the assignment as security for future services, he erroneously ruled that the full amount was recoverable. While the final decree must be reversed, the finding that the trustees should transfer to the plaintiff $12,000 in trust to be disbursed among the creditors of Cordova as shown by the schedule is to stand; and further pro ceedings are to be taken in the trial court not inconsistent with the opinion. Old Corner Book Store v. Upham, 194 Mass. 101, 106, 80 N. E. 22S, 120 Am. St. Rep. 532. The rights of the defendant Mitchell also will be thereby fully protected, as the amendment for this purpose to the final decree after it had been entered was on the record invalid. White v. Gove, 183 Mass. 333, 340, 67 N. E. 359. [7] The cross-bill was dismissed rightly. The function of a cross-bill is to secure affirmative relief which cannot be administered (147 N.E.) under the answer to the original bill. The the appeal for want of prosecution, in that plaintiff as trustee has not received anything the appeal had not been entered in compliunder the assignment for which at present ance with G. L. c. 214, § 19. That motion he should account and in the establishment was heard on affidavits filed by the attorneys of his claim for services whatever he may for the respective parties. That in behalf of have obtained in any form by way of partial the plaintiff sets out facts as to delay in payment is to be deducted. getting and inaccuracies in the transcript Ordered accordingly. of evidence heard at the trial, but avers that it was received "about six months after the trial," that is to say, at latest by March, 1923. An extract from a letter of the attorney for the defendant to the judge is inserted in the affidavit of the attorney for the plaintiff, of this tenor: ROBINSON v. DONALDSON et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.) Appeal and error 432-Appeal held dismissable for want of prosecution. Where findings of fact and rulings on evidence were filed by trial judge on August 13, and nothing done to perfect appeal until January 7 next following, held, under G. L. c. 214, §§ 19, 23, 24, particularly section 19, requiring appeal to be filed "forthwith," appeal was dismissable on motion filed pursuant to chapter 231, nor was delay justified for purpose of procuring transcript of evidence not desired by appealing party. Appeal from Superior Court, Suffolk County; Marcus Morton, Judge. Suit by Solomon Robinson against Isabelle M. Donaldson, formerly known as Isabelle M. Dowling, and the Washington Theater, Inc., to reach and apply, in payment of damages alleged to be recoverable under lease from principal defendant, property in hands of other defendant. From decree of dismissal, plaintiff appeals, and from order denying motion to dismiss plaintiff's appeal, defendant appeals. Plaintiff's appeal dismissed for want of prosecution. W. H. Garland, of Boston, for appellant. RUGG, C. J. This is a suit to reach and apply, in payment of damages alleged to be recoverable under a lease from the principal defendant, Isabelle M. Donaldson, to the plaintiff, property in the hands of the other defendant. G. L. c. 214, § 3, cl. 7. See H. G. Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 118, 103 N. E. 469. The case was heard before a judge of the superior court, who made a finding for the defendant on September 5, 1922. A final decree dismissing the plaintiff's bill was entered on June 11, 1923. From that decree the plaintiff on June 14, 1923, appealed and requested a report of the material facts found by the judge. G. L. c. 214, § 23. The judge filed such report with his rulings on evidence on August 13, 1923. The defendant on January 7, 1924, filed in the superior court under G. L. c. 231, a motion to dismiss "If, as I understand was agreed, the testimony taken by the commissioner is to be resituation being that at the close of the plainported, though in abbreviated form, and the tiff's evidence and offers of proof you ruled that upon a proper construction of the lease, and upon all the evidence offered by him, he was not entitled to recover, I see no occasion for an elaborate, nor indeed any, finding of fact. The case will then be presented fairly, squarely and succinctly to the Supreme Court whether or not the plaintiff introduced any evidence upon which, under the rules of law, damages could be awarded him." The affidavit continues: "Motion allowed after hearing unless papers are prepared and entered in the full court on or before March 3, 1924." The question is whether that order can be supported on the affidavits. The record on the plaintiff's appeal as printed contains simply the bill, answer, finding, report of facts and rulings on evidence made by the judge, and the appeal. No transcript of evidence is printed. It covers a little less than nine printed pages. The case was ripe for final preparation and printing of record on August 13, 1923, when the judge filed his finding of material facts and rulings on evidence. The words of G. L. c. 214, § 19, are that an appeal such as this "shall forthwith be entered in the Supreme Judicial Court." It is manifest that this record shows no facts susceptible of being construed as a compliance with that mandate of the statute. No excuse is disclosed for a delay from August 13, 1923, when the judge's findings were filed, to January 7, 1924, when the motion to dismiss was filed. A judge of the superior court has no power to relax the terms of the statute. The appealing party must bring himself within For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |