1. A citizen of Louisiana in his lifetime had a valid claim
against the United States for the recovery of which a remedy was
given in the Southern Claims Commission. After his decease, his
widow was duly appointed tutrix to his minor children and heirs.
that it was her duty to take legal steps to recover
the money from the United States, and that whether the action was
brought in her own name or in hers jointly with the children, she
was equally bound to prosecute it with diligence.
2. On the principles set forth in Wyman v.
l09 U.S. 654, held
payment of a claim against the United States to a tutrix appointed
under the laws of Louisiana is a valid payment making her
responsible to the minors, if wronged, for the receipt of the money
by herself or by her authorized attorney.
3. A contract with an attorney to prosecute a claim for a
contingent fee is not void, and under the circumstances of this
case, the parties having agreed upon fifty percent, of the claim as
a contingent fee, the Court is not prepared to assume that the
division is extortionate. Stanton v. Embrey, 93 U. S.
, approved and followed.
Page 110 U. S. 43
MR. JUSTICE MILLER delivered the opinion of the Court.
Laura J. Bemiss, widow of John Bemiss, having a claim against
the United States pending before the commission commonly called the
Southern Claims Commission, under the Act of March 3, 1871,
employed George Taylor and F. C. Wood, attorneys at law, residing
in Washington City, to prosecute said claim, and by an instrument
in writing agreed to give them fifty percent of the amount which
might be recovered. The sum recovered was $27,310, and, under a
power of attorney given by her to Mr. Taylor, he received from the
Treasury the sum of $14,598.33, and Mrs. Bemiss the balance, of
The present suit originates in a bill in chancery brought by
Belle Bemiss, Elizabeth Bemiss, and Mattie Bemiss, minor children
of Mrs. Bemiss and of her husband, John Bemiss, deceased, to
recover of Taylor and Wood, and of Mrs. Bemiss, the money thus
Mrs. Bemiss makes her answer a cross-bill against Taylor and
Wood, and asserts the invalidity of her contract with them for
compensation, and prays also that they may be required to refund
the money which they received under it.
To the bill and cross-bill Taylor and Wood answer, under oath
(and their answer is in no material matter disproved), that they
were employed by Mrs. Bemiss by a letter written from Louisiana,
where she resided, asking them to accept a retainer in the case, by
reason of a suggestion of a friend of hers in Louisiana, and she
offered them five percent of the amount recovered as their
compensation. To this they assented, and enclosed her a contract to
that effect, which she signed and returned to them. She also
executed a power of attorney to them, authorizing them to manage
the case and receive the sum awarded to her.
The answer further states that, without any suggestion from
Page 110 U. S. 44
them, Mrs. Bemiss employed at different times two other
attorneys in Louisiana, to each of whom she agreed to pay ten
percent of the amount of the award, and that defendants had
advanced to Mrs. Bemiss, pending the litigation, the sum of $800,
which, with interest to the time they received the money from the
Treasury, was added to the one-half they were entitled to by the
terms of the contract. They also paid the ten percent out of their
share to each of the attorneys employed by her, so that, deducting
this twenty percent, and the money advanced to her and its
interest, they received for their compensation only thirty percent
of the money recovered, or $8,193.
It is urged against the validity of this contract of employment
that Mrs. Bemiss had no authority to bind her children, the minor
heirs of her deceased husband, by such a contract, and that as to
their interest in the award it is void.
The bill of the minor heirs states that Mrs. Bemiss had been
appointed by the proper court in Louisiana natural tutrix of these
children. We are of opinion that this appointment made it her duty
to take the necessary legal steps to obtain this money from the
United States, and that whether the suit was brought in her own
name or in hers jointly with her children, she was equally bound to
prosecute it with diligence, and to do all that was necessary to
recover the money. It would be a queer condition of the law if,
while it imposed this obligation upon her, it gave her no authority
to employ counsel to prosecute the claim before the only legal
tribunal which could allow it, and if she could employ counsel, it
follows, as a matter of course, she could make a contract for the
amount of their compensation.
This agreement would bind her as tutrix as well as in her
individual right, and it is in both characters she professes to
Such undoubtedly is the law of Louisiana, which must govern as
to her powers as tutrix, since it is there she was appointed, and
there both she and her children resided when she made the agreement
with Taylor and Wood.
Of her authority to make such a contract tract as tutrix we have
Page 110 U. S. 45
Another objection raised is that since by the act of Congress
making the appropriation to pay the money, it is expressly made
payable to Mrs. Bemiss and her children by name, her authority as
tutrix under the Louisiana appointment did not authorize payment to
her in the District of Columbia.
The subject of such payments by the United States to
administrators appointed in the states is very fully discussed in
the case of Wyman v. United States,
with the present case, and upon the principles there laid down we
are of opinion that payment to Mrs. Bemiss as tutrix under the
Louisiana appointment is a valid payment, and that she is
responsible under that appointment, and the receipt of the money by
herself and by her authorized attorney, to these minors, if they
have been wronged. And this is a matter of accounting with them in
her fiduciary character of tutrix.
It remains to be considered whether there is in this contract of
employment anything which, after it has been fully executed on both
sides, should require it to be declared void in a court of equity,
and the money received under it returned. It was decided in the
case of Stanton v. Embry, 93 U. S.
, that contracts by attorneys for compensation in
prosecuting claims against the United States were not void because
the amount of it was made contingent upon success, or upon the sum
recovered. And the well known difficulties and delays in obtaining
payment of just claims which are not within the ordinary course of
procedure of the auditing officers of the government, justifies a
liberal compensation in successful cases, where none is to be
received in case of failure.
Any other rule would work much hardship in cases of creditors of
small means, residing far from the seat of government, who can give
neither money nor personal attention to securing their rights.
This, however, does not remove the suspicion which naturally
attaches to such contracts, and where it can be shown that they are
obtained from the suitor by any undue influence of the attorney
over the client, or by any fraud or imposition, or that the
compensation is clearly excessive, so as to amount to
Page 110 U. S. 46
extortion, the court will in a proper case protect the party
While fifty percent seems to be more than a fair proportion in
the division between client and attorney in an ordinary case, we
are not prepared to assume that it is extortionate for that reason
alone, and the testimony of the lawyers on that subject, taken as
experts, does not justify such a conclusion. In the case before us,
it is beyond dispute that the attorneys of Mrs. Bemiss exercised no
influence over her whatever in adjusting the amount of the fee
stipulated in the agreement. They had never known her until this
employment, and it was through no suggestion of theirs or any agent
of theirs that she applied to them. Her first letter to them on the
subject made the offer of fifty percent, and no more was asked for
by them. The evidence of two of the judges who composed the court
shows that the case was a difficult and complicated one, and that
both Taylor and Wood attended to it vigorously and gave it much
time and attention, and that it was in court a considerable
It seems probable that Mrs. Bemiss was an impatient and not very
wise woman, but there is no evidence of such weakness of mind as to
incapacitate her from making a contract, and there is absolutely no
evidence of any advantage taken of her at any stage of the
proceeding. On the contrary, the payment by these principal
attorneys of two-fifths of the fee they had contracted for to other
attorneys employed by her without consulting them, for which she
was bound, while they were not, shows anything but harsh or
oppressive conduct, and would go far to mitigate any objection to
enforcing the contract founded on the idea of excessive
We are of opinion that on the appeal of Taylor and Wood the
decree of the court below must be reversed, and as the minor
children, plaintiffs below, assign no error, because they had no
decree against their mother, a decree must be rendered in that
court dismissing the bill.