#### James A. Dennison, Plaintiff, *v.*James B. Lawrence, Defendant.

(Supreme Court, New York Trial Term,

April, 1899.)

Attorney and client — Contingent fee on will contest.

Where the contest of a will results in sustaining all its provisions except those relating to certain remainders over, an attorney employed by an heir-at-law “ to contest the validity of the will ” under an agreement that he shall receive a fixed sum “ of money in any manner obtained and recovered ”, but not .otherwise, can recover nothing of an heir who has deceived no present property or right of property because the decision established the validity of certain trusts created by the testator and continuing during the life of the heirs.

*100The action was by the plaintiff as an attorney to recover $1,000 for professional services rendered under the following special contract:

.'“We hereby retain and employ James A. Dennison, Esq., counsellor-at-law, to take such proceedings as to him may seem best to test the validity of the will of James W. Lawrence, and in consideration of his services rendered and to be rendered therein, we hereby promise and agree to pay to the said James A. Dennison, the sum of $3,000, being $1,000 for each of'us, of the money in any, manner obtained and recovered, it being understood and agreed that said James A. Dennison is to take, full charge of and manage said proceeding or proceedings; and if he is unsuccessful he-shall receive no compensation for his services.”

The agreement was signed by three heirs of the testator, of. whom " the defendant was one.

The plaintiff, under this contract, brought suit, which terminated in upholding the will and the trusts therein, except as to what the-plaintiff terms certain “ cross remainders,” which were declared void; The defendant received no present property or right of property, under the decision. ...

The question was whether the. plaintiff had, under the . circumstances, earned his fee., ■

Jas. A. Dennison, for plaintiff.

Lockwood & Hill, for defendant.

McAdam, J.

The plaintiff was retained as an attorney to test the . validity of the will of James W. Lawrence, under a special contract by which he was to have $1,.000 from the defendant if he succeeded. This -meant that if he established the invalidity of -the entire will, .so far as it assumed to dispose-of the testator’s estate, and prevent its descent as in case of intestacy, he would earn his fee; otherwise not. The theory of the complaint, drawn by the plaintiff under his contract, shows this-purpose, for he claimed that the entire will was invalid, and that .the executor was bound to account, as in case- of intestacy, for the property in his hands.. The plaintiff’s .contract . required the judicial establishment of a present property right in the heirs, the breaking up of the trust barrier, and a present duty of *101the executor to distribute the body of the estate as if there had been no will; and in this he failed, for the court held that a valid trust had been created during the lifetime of each of the testator’s three children, and that the remainders over were alone illegal., Brown v. Richter, 76 Hun, 469; aff’d, 144 N. Y. 706. The subsequent death of Mrs. Brown, one of the heirs, and the result of the suit brought by her administrator against the executor (25 App. Div. 239), do not enlarge the scope of the contract made, nor aid the plaintiff in any manner. Upon the entire case there must be judgment for the defendant.

Judgment for defendant.