In this case, the Circuit Court had jurisdiction under the
provision of the Act of March 3, 1875, 18 Stat. 470, 472, to
enforce a lien for professional services on property within the
district, although some of the defendants did not reside
therein.
An objection to the jurisdiction of the Circuit Court based on
the residence of defendant, although diverse citizenship exists,
may be waived, and is waived if not seasonably made.
In re
Moore, 209 U. S. 490.
Page 211 U. S. 336
A decree in a suit in the Circuit Court between citizens of
different states is not violative of § 720, Rev.Stat., because it
determines liens on distributive shares in an estate under
administration in a state probate court and enjoins transmission of
that share to the original administrator until satisfaction of the
lien.
Quaere whether it is within the power of a state court
to order property on which there is an asserted lien to be sent out
of the district, thereby defeating the jurisdiction of the circuit
court to enforce the lien under the Act of March 3, 1875, 18 Stat.
470, 472.
The fact that proceedings for the administration of an estate
are pending in the probate court does not deprive the circuit court
of the United States of jurisdiction to determine whether a lien
exits in favor of citizens of another state on some of the
distributive shares, the lien only to be enforced after the probate
court shall have finished its functions.
Section 629, Rev.Stat., does not deprive the circuit court of
jurisdiction of an action brought by a citizen of another state
against an administrator to enforce a lien on the distributive
share of an heir of defendant's intestate because that heir, being
of the same state as the defendant, could not sue him in the
circuit court.
An ancillary administrator in one jurisdiction is not in privity
with an ancillary administrator in another jurisdiction, and a
judgment against the one is not
res judicata and a bar to
a suit by the other.
Brown v. Fletcher's Estate,
210 U. S. 82.
Where the case in which counsel is employed on a contingent fee
is so settled that the clients receive as much as though the
contingency on which the fee depends were realized, and the
settlement is achieved after a trial and by the service of the
counsel, his contract is performed, and he is entitled to the
agreed compensation.
An express executory agreement in writing whereby the
contracting party sufficiently indicates an intent to make some
identified property security for a debt or other obligation creates
an equitable lien on such property, and in this case an agreement
by contestants to pay counsel a contingent fee if the propounding
of a will is prevented created a lien on the distributive shares in
the estate to which those contestants became entitled on a
settlement of the matter effected by the successful services of the
counsel so employed.
148 F. 169 reversed; 136 F. 689 modified and affirmed.
The petitioner, as administratrix of the estate of Robert G.
Ingersoll, deceased, sued the respondents and certain other
persons, in the Circuit Court of the United States for the
District
Page 211 U. S. 337
of Massachusetts, to subject certain interests in the estate of
Andrew J. Davis to a lien which is alleged to have accrued to her
intestate by the agreement which is set out in the opinion, and by
the laws of Montana, in which state the services were rendered.
Andrew J. Davis, a man of great wealth, a citizen of Montana,
died, leaving property in that state and in Massachusetts. By a
will, which was offered for probate in Montana, all of his property
was left to his brother, John A. Davis. Certain other of his next
of kin, five in number (referred to in the bill as the "five
heirs"), associated to contest the probate of the will. Henry A.
Root, one of the respondents, and a nephew of Andrew J. Davis,
agreed with the four other contestants to conduct the litigation
and to procure evidence and counsel at his own expense, receiving
therefor an assignment of a part of the prospective distributive
shares of the others. Joseph H. Coram, another respondent, also
acquired an interest in the prospective shares of some of the
contestants. Robert G. Ingersoll, the petitioner's intestate, was
engaged as counsel to conduct the litigation, and Root and Coram
entered into the agreement with him, which will hereafter be set
out.
Upon the trial of the contest, the jury disagreed. Pending the
preparation for the second trial, an agreement of compromise was
made by which Ingersoll's clients received a larger portion of the
estate than though Davis had died intestate. It is alleged that
this was the result of Ingersoll's services as counsel. "By
reason," it is alleged,
"and in consideration of the prosecution of said contests, and
the force, effect, and stress thereof, as against the proponent of
such alleged will, in preventing the admission thereof to probate,
and in consideration of the determination of said controversy and
litigation, and for no other consideration or reason,"
was the compromise effected. It is hence further alleged that
the
"will was defeated insofar as it could affect the rights,
shares, or interest in and to said estate of said five heirs
mentioned in
Page 211 U. S. 338
said agreement and promise made and delivered by said Root and
Coram to said Robert G. Ingersoll, for as much as they were
entitled to only 350 eleven hundredths of said estate as such heirs
at law of Andrew J. Davis, deceased, and got absolute right and
title to 515 1/2 eleven hundredths thereof, through the prosecution
of said contests and decree determining the same."
250 eleven hundredths, it is alleged, were allotted directly to
said five heirs and 265 1/2 eleven hundredths for their use and
benefit, to Charles H. Palmer (a respondent here) and Andrew J.
Davis, Jr., trustees. A copy of the decree was annexed to the bill
and made part of it. And it is alleged that, by reason of said
agreement and the fulfillment thereof and the "provisions of the
laws and statutes of Montana," which are set out, an attorney's
lien accrued in favor of said Ingersoll and his legal
representatives,
"and is existing and is in force and effect upon the portions,
parcels, and interests of, in, and to the funds and other property
of said Andrew J. Davis, deceased, so acquired for said five
heirs."
That Root and Coram have conveyed away the real estate vested in
them by the decree determining the said will contests, and that the
distributions under said decree
"have practically exhausted the funds and property of said
estate in the State of Montana, and that, by reason of the
employment of Ingersoll and the services rendered by him, and by
the promises of payment, an equitable lien exists on the funds and
effects acquired by said heirs, situate in Boston,
Massachusetts,"
and that such funds and effects should not be distributed or
carried away
"in default of payments of said indebtedness owing by Root and
Coram to the estate and legal representatives of Robert G.
Ingersoll, deceased, but that said funds and effects situate in
Boston, Massachusetts, should be and remain subject to said
indebtedness, and to be resorted to for the payment thereof."
It is alleged that John H. Leyson is the duly appointed,
qualified, and acting administrator of the estate of Andrew J.
Davis, deceased, situate in Massachusetts, and has custody of the
funds and effect acquired by Root and his associates, and
Page 211 U. S. 339
upon which the said lien exists in favor of the estate and legal
representatives of Ingersoll, and that, if such funds and effects
should be distributed, the lien will be defeated.
The death of Ingersoll in the State of New York is alleged, and
the appointment of Eva A. Ingersoll, administratrix, by the
Surrogate's Court of the County of Westchester, of that state, and
her qualification. And it is alleged that she was subsequently
appointed administratrix of his estate by the Probate Court of the
County of Suffolk, Commonwealth of Massachusetts, situate in that
commonwealth, and that she duly qualified as such. It is alleged
that the estate of Andrew J. Davis, situate in Boston, and in the
hands of said John H. Leyson as administrator, consists of money,
convertible stocks and bonds of the value of $450,000, after paying
expenses of administration, of which funds and effects Coram and
other parties for whom Ingersoll prosecuted said will contest are
entitled, by virtue of the decree of the district court of the
State of Montana, directly and through Charles H. Palmer and Andrew
J. Davis, Jr., to 515 1/2 eleven hundredths, "acquired as part of
the fruits of the labors of said Robert G. Ingersoll in the
prosecution of said will contests." That Root, Coram, and their
associates have petitioned the Probate Court of Suffolk County to
order distribution of said shares of said funds and effects to
them. That all of said 515 1/2 eleven hundredths, except the
interest owned by Sarah Maria Cummings and the interest owned by
Ellen S. Cornue, are subject to the lien of Ingersoll. It is
alleged that the interests of Elizabeth S. Ladd and Mary L. Dunbar
have been transferred to Root and Coram.
A conspiracy and purpose of Coram and Root to defeat the lien of
Ingersoll are alleged, and that distribution of the estate in
Massachusetts is sought as a means thereto; further, that, if the
funds and effects be removed from Massachusetts or distributed to
Root and Coram before the representatives of said Ingersoll have an
opportunity to enforce their lien, the same will be placed beyond
their reach and the payment of
Page 211 U. S. 340
the indebtedness secured thereby defeated; that the funds and
effects remaining in Montana will be required and used to pay
indebtedness and expenses of administration there, and that Root
and Coram have no tangible property other than their shares and
interest in the estate of Davis.
It is further alleged that petitioner brought suit in the
District Court of the State of Montana in her name, as
administratrix of Robert G. Ingersoll, to enforce payment of said
claim existing in favor of the estate and legal representatives of
Ingersoll. That Root and the other defendants therein appeared and
demurred to the complaint on the ground that the same did not state
facts sufficient to constitute a cause of action, but did not
specify or raise the objection that she was not qualified to
prosecute said suit, although she alleged her appointment as
administratrix by the surrogate's court of New York. That, upon her
urging the pendency of said suit against the petition for
distribution filed by Root and Coram and their associates, it was
objected that said suit had not been brought by an administrator of
Ingersoll appointed in Montana. The court sustained the objection.
That thereupon John S. Harris was appointed administrator in
Montana, and substituted in said suit for petitioner. The cause
coming on to be heard in the District Court of Montana, Root
objected to the introduction of any evidence on the ground that the
complaint therein did not state facts sufficient to constitute a
cause of action. The motion was sustained, and, without further
proceedings, the court granted a nonsuit and dismissed the
complaint on the alleged ground that it did not state facts
sufficient to constitute a cause of action; in consequence no trial
thereof has been had, nor has the claim and lien of Ingersoll even
been adjudicated, nor is it barred by any statute of
limitation.
The bill prays an injunction against Leyson to restrain him from
delivering, and against respondents to restrain them from
receiving, said funds and effects, and for the appointment of a
receiver, discovery of Coram's interest, and judgment for
Page 211 U. S. 341
the same, and that it be declared a lien on such interest.
Judgment is prayed against Root for $95,000, with interest, and
that the sum be declared a lien on his shares and interests. What
else is prayed need not be noticed.
There were demurrers to the bill that went to the parties, the
jurisdiction of the court, to the merits, and that the judgment of
the District Court of Montana constituted a bar. The grounds of
demurrer to jurisdiction were expressed in the demurrer filed by
Root and Coram and Herbert P. Cummings, executor of the last will
and testament of Sarah Maria Cummings, one of the five heirs, as
follows:
"2. These defendants also demur to the bill of complaint upon
the further ground that this court has not jurisdiction of this
action, because it appears from the said bill that this action is
brought to secure from this court a writ of injunction staying
proceedings now pending in the Probate Court in and for the County
of Suffolk and Commonwealth of Massachusetts, to distribute the
funds and effects of the estate of Andrew J. Davis, deceased,
situate in the State of Massachusetts, among the persons entitled
thereto, or to otherwise dispose of said funds and effects, and
this Court is forbidden by § 720 of the United States Revised
Statutes from granting a writ of injunction to stay proceedings in
any court of a state."
The demurrer of Leyson was more general, stating that the court
"had no jurisdiction to grant the relief prayed for in the bill of
complaint or any part thereof." And Andrew J. Davis particularized
this by the specification that to enjoin the disposition of
property in the hands of Leyson as administrator
"would be an interference with the proceedings of the Probate
Court of Suffolk County, having jurisdiction of the matter, and
would be unauthorized and illegal."
The demurrers were overruled except as against certain parties,
and except so far as the bill claimed a statutory lien. The court
said:
"No statutory lien can be maintained, and that portion of the
bill must be regarded as ineffectual; and, as it is specially
demurred to, it must be stricken out."
127
Page 211 U. S. 342
F. 418. The bill was amended in compliance with the order of the
court, making Charles H. Ladd, individually and as administrator of
the estate of Elizabeth S. Ladd, a party. The bill, however, was
subsequently ordered to be dismissed as to him, Mary Louise Dunbar
(one of the five heirs), and Herbert R. Cummings, executor. 132 F.
168. They seem, however, to have been regarded as parties until the
final disposition of the case, for they joined Coram, Root, and
Palmer in an answer. Leyson filed a separate answer. In the
answers, some of the allegations of the bill were denied and others
admitted. The answers also pleaded in bar of the suit the
proceedings and judgment in the action brought in the District
Court of Silver Bow County, State of Montana. Proofs were taken,
the allegations of the bill were found to be true, and a decree
entered for petitioner. 136 F. 689. Root, Coram, and Palmer took an
appeal to the circuit court of appeals, the other respondents
declining to join them, which court reversed the decision by a
divided court. 148 F. 169. This certiorari was then granted.
Page 211 U. S. 354
MR. JUSTICE McKENNA, after stating the case as above, delivered
the opinion of the Court.
A question of jurisdiction occurs. It was discussed somewhat in
the original briefs of counsel, but questions were submitted to
them as appropriate to elicit further discussion.
* We find it,
however, more convenient and more conducive to brevity, in passing
on the question of jurisdiction, to be somewhat
Page 211 U. S. 355
general. The petitioner (and her intestate) were citizens of New
York. The defendants in the suit below, nine in number, were
citizens of Massachusetts. Coram was a citizen of Massachusetts.
Root and Andrew J. Davis, trustee, were citizens of Montana. Leyson
was also a citizen of Montana. It is hence contended that, while
there was diversity of citizenship when the suit was brought, there
was no jurisdiction against Root and Andrew J. Davis, they not
being inhabitants of the district. The suit against them, it is
further contended, was without jurisdiction also, because it was
not brought either in the district of the residence of the
plaintiff or the defendant. And this, it was said, was recognized
by the bill, which prayed an order for the absent defendants to
appear and plead in accordance with § 738 of the Revised Statutes,
now Act of March 3, 1875. 18 Stat. 470, 472, c. 137. That act
provides for notice to absent defendants in any suit "to enforce
any legal or equitable lien . . . or cloud upon the title to real
or personal property within the district." And it is urged that the
circuit judge said that the proceeding could only be sustained
under that act.
The objection that Massachusetts was not the district of the
residence of either Root or Davis was not made to the bill. The
objection to the jurisdiction made by the demurrers was to the
jurisdiction of the circuit court to interfere with or stay
proceedings in a probate court of the Commonwealth of
Massachusetts. It makes no difference how the parties were served
or brought in. Being in, all objections to the bill should have
been made. The bill prayed a personal judgment against Root as well
as a lien upon his share, and those represented by Coram, in the
hands of Leyson as administrator of Davis, deceased, and that
Leyson be restrained from paying them and Root and Coram from
receiving or carrying them away. And general relief was also
prayed. In other words, the whole case arising from Ingersoll's
service and the remedies for that service was presented. And to
this case the defendants were summoned to answer . They did answer
as to the jurisdiction of the court as to subject matter, as to the
relation of the
Page 211 U. S. 356
courts of the United States to the courts of Massachusetts. They
did not answer as to the jurisdiction of the court as to parties,
as to the rights of the parties to be sued in the district of their
residence. The latter objection may be waived, and is waived by not
being made.
In re Moore, 209 U. S. 490.
To decide what jurisdiction the circuit court exercised, we must
consider the decree. It found all of the allegations of the bill to
be true, and that there was due and owing to the plaintiff
(petitioner here), on the contract executed by Coram and Root, the
sum of $95,000, with interest, amounting in all to the sum of
$138,010.83. It adjudged Root to be personally indebted and liable
for that sum, and awarded execution against him, and for any
balance that should be due if the property upon which the lien was
declared, as presently mentioned, should not satisfy such
indebtedness; that Coram was personally obligated and liable for
the payment of said indebtedness upon the full amount which he had
received, or should receive, from the shares of the estate of
Andrew J. Davis, deceased, acquired for the five heirs mentioned in
said agreement, or either of them, under or pursuant to the decree
of the District Court of the State of Montana. It was also found
and decreed that there was in the State of Massachusetts, in the
hands of John H. Leyson, as administrator of Andrew J. Davis,
deceased, $337,862, and 137 bonds of the United States, and 170
bonds of the Butte & Boston Consolidated Mining Company, of
which money and bonds and the increase thereof, the said five heirs
of Andrew J. Davis, deceased, and their legal representatives and
successors in interest, were entitled to receive 515 1/2 eleven
hundredths under and pursuant to the decree of the District Court
of the State of Montana, and of which money and bonds and the
increase thereof Coram and Root were entitled to have and receive
415 1/2 eleven hundredths parts on distribution of such money and
bonds by the proper court having jurisdiction thereof in the
administration and distribution of the estate of Andrew J. Davis,
deceased. Upon such 415 1/2 eleven hundredths
Page 211 U. S. 357
parts petitioner was decreed to have a lien "subject to all
proper and lawful administration," as a part of the estate of
Andrew J. Davis, deceased,
"pursuant to the orders and decrees or judgments of the Probate
Court of Suffolk County, Massachusetts, now having probate
jurisdiction thereof, or any court which may hereafter have probate
jurisdiction . . . to administer the same as part of the estate of
said Andrew J. Davis, deceased, in the due and lawful course of
administration thereof."
A lien is decreed upon said money and bonds, and foreclosed,
subject to the terms of the decree, wheresoever said money and
bonds may be taken or removed, whether within or without the State
of Massachusetts, and in the custody of whomsoever the same may
come,
"subject only to the proper and lawful probate and
administration . . . pursuant to the orders, judgments, or decrees
of the Probate Court of Suffolk County, in the State of
Massachusetts, now having probate jurisdiction thereon . . . to
administer the same as a part of the estate of Andrew J. Davis,
deceased, in the due and lawful course of administration
thereof."
And it was decreed that, as soon as the probate administration
is finished and distribution is ordered by the probate court having
jurisdiction, that Leyson, as administrator, or his successor in
custody thereof, should set apart and bring into court the said 415
1/2 eleven hundredths of said money and bonds, to be applied to the
satisfaction of the lien of complainant. It was decreed that each
and all of the injunctive and restraining terms and commands of the
interlocutory injunction order be made perpetual, and Leyson was
enjoined and restrained, as administrator, from removing out of
Massachusetts 415 1/2 eleven hundredths parts of the money and
bonds in his possession,
"unless and until the proper court within the State of
Massachusetts, having probate jurisdiction of such money and bonds,
by its final order, judgment, or decree, directs such John H.
Leyson, as such administrator, to remove such 415 1/2 eleven
hundredths of such money and bonds out of the State of
Massachusetts. "
Page 211 U. S. 358
We have made this epitome of the main provisions of the decree
to show how careful the court was to require the observance of its
direction expressed in its opinion that the decree should declare
that nothing in it was intended to contravene, or should
contravene, "any action of any probate tribunal in Massachusetts
with reference to distribution, or to any order or judgment
remitting to the courts of the domicil."
The decree therefore deals exclusively with the parties. It
adjudges what contract they made, the extent of their obligation,
and how that contract was secured. The remedies awarded are
executed through the parties, and through Leyson only as he holds
property to be delivered to the parties. No action of the Probate
Court of Suffolk County is attempted to be restrained or limited or
trenched upon, nor the property in its possession disturbed. And
yet it is urged that the suit that sought this purpose and a decree
that executes this purpose transcend the jurisdiction of a circuit
court of the United States.
The proposition has been discussed at length by counsel, many
cases cited and arguments advanced based upon the respective
functions of courts of equity and probate.
The respondents especially rely upon the pendency of proceedings
in the Probate Court of Suffolk County, and, as a corollary, that
the property was in the possession of the probate court and under
its jurisdiction, and therefore not within the jurisdiction of the
circuit court. Respondents express and illustrate the latter
conclusion in various ways. Their fundamental postulate, however,
is that the circuit court has not power to disturb the possession
of the property by the probate court or do any act which may
interfere with the free exercise of jurisdiction by the probate
court. This postulate is argued at length and many cases are cited.
Besides, a statute of Massachusetts is relied upon which provides
that, upon the settlement of an estate, and after the payment of
all debts for which the same is liable in that commonwealth, the
residue of the personal estate may be distributed and disposed
Page 211 U. S. 359
of in the manner provided by the will of a deceased, if he left
any, or according to the laws of the state or country of which he
was an inhabitant,
"
or, in the discretion of the court, it may be transmitted
to the executor or administrator, if any, in the state or country
where the deceased had his domicil, to be there disposed of
according to the laws thereof."
(Italics ours.)
We think, however, a lengthy discussion is not necessary. The
controversy presented by the bill was one between citizens of
different states, and there was that ground of jurisdiction in the
circuit court, being a court of the United States. One object of
the bill, among others, was to declare and foreclose a lien upon
property within the district, and there was that ground of
jurisdiction, and we do not think that jurisdiction thus
established and supported was taken away by the mere fact that the
settlement of the estate of Davis was pending in the Probate Court
of Suffolk County. No interference with that court was sought or
decreed, as we have seen. Rights between the parties, arising from
their transactions and contracts, were only adjudged and only
decreed to be redressed when the probate court should have finished
its functions. Indeed, it may even be that the circuit court was
too restrictive in the exercise of its power, for it may be
disputed whether it is within the power of a state court to order
property upon which there is a lien sent out of a district, and
thereby defeat the jurisdiction of a court of the United States to
enforce such lien in cases where they have jurisdiction under the
Act of March 3, 1875. This question, however, does not arise, nor
any question depending upon it, and the line of cases of which
Wabash Railroad v. Adelbert College, 208 U. S.
38, is an example does not apply, nor do the cases cited
by respondents, but the case falls within the principles announced
in
Payne v. Hook,
7 Wall. 425,, and
Byers v. McAuley, 149 U.
S. 608, and cases there cited.
The power of the court of equity to subject the share of a
person under a lien, "and yet in the hands of an executor,"
Page 211 U. S. 360
to the payment of his debts, has been decided in Massachusetts.
Ricketson v. Merrill, 148 Mass. 76, 19 N.E. 11. The same
in principle is
Davis v. Newton, 6 Met. 537, where it was
held that the distributive share of an insolvent debtor in the
hands of an administrator passed to his assignee, and that the
administrator could not withhold it from the assignee.
In
Lenz v. Prescott, 144 Mass. 505, it was decided that
the probate court does not take cognizance of assignments of their
interests, made by legatees or distributees, but deals only with
those primarily entitled to the legacies or distributive shares,
and many cases were cited. The court therefore sustained a bill in
equity to ascertain the validity and construction of an assignment
of an interest in an estate.
See also Green v. Gaskill,
175 Mass. 265, where the probate jurisdiction of the probate court
and its equity jurisdiction in relation to other courts is
explained, and it is decided that administrators and executors have
a right to have their accounts adjusted and the amounts due to or
from them determined in the probate court, on its probate side, and
in the usual probate proceedings; but, when the amount for which
they are liable is so determined, may, by a bill in equity, be
compelled to pay to those entitled their share of the property of
the deceased. And this being the power of the courts of equity of
the state, a like power certainly may be exercised by the federal
courts.
It is further objected that there is no property of the
respondents in Massachusetts. The argument which is urged to
support the objection is difficult to state. It seems to draw a
distinction, under the laws of Massachusetts, between the will of
Andrew J. Davis and the decree of the Montana court admitting the
will to probate. "The probate court," respondents say,
"might and did accept the decree of the Montana court as proof
that the will ought to be allowed. It could not and did not accept
the decree as establishing that the property in Massachusetts
should be disposed of otherwise than as the will provided."
And from a consideration of the laws
Page 211 U. S. 361
of Massachusetts, respondents conclude that (we quote the
language of counsel),
"no part of the property in Massachusetts can therefore in any
sense be said to belong to the defendants in the suit. All of it
must by law either be paid over according to the will or be
transmitted to Montana, to be distributed as the court may
direct."
We cannot refrain from saying that it is hard to believe that
respondents would like to be taken at the full sense of their
words, and we are quite sure that the Probate Court of Suffolk
County will regard not the will as propounded for probate, but the
will as qualified by the decree, as determining the rights of the
parties. At any rate, it is only upon the shares which that court
will distribute that the decree of the circuit court will
operate.
Again, it is charged that the right of the petitioner's
intestate was derived from Root, and as he, it is further
contended, could not have sued to establish his right to a share in
the funds of the administrator, the latter and he being citizens of
Montana, that the petitioner was equally disqualified to establish
and recover Root's share of the property. The argument is that she
is seeking to enforce a right of Root against the administrator,
arising on an equitable assignment by Root to her intestate, and
she is therefore, it is said, suing to recover as assignee of a
chose in action upon which the assignor could not sue, because his
citizenship is the same as that of the administrator in
Massachusetts. Rev.Stat. § 629. There are several answers to the
contention. It is certainly very disputable if an interest in a
distributive share of an estate is within the statute. Again, she
is suing primarily on the obligation of Root to her intestate, to
secure which a lien was given on Root's distributive share, and
besides, again, she sues as administratrix, and she is a citizen of
a different state from Leyson.
Sere v.
Pitot, 6 Cranch 333;
Chappedelaine v.
Dechenaux, 4 Cranch 308;
Bushnell
v. Kennedy, 9 Wall. 387;
Coal Co.
v. Blatchford, 11 Wall. 172;
Rice v.
Houston, 13 Wall. 66.
Respondents assert the identity of the action in Montana
Page 211 U. S. 362
with the present suit, and upon that identity they urge that
such action constitutes
res judicata. Petitioner denies
the identity of the actions, and urges besides that there is no
such privity between the parties as to make the Montana action
res judicata of the pending case. In support of the latter
contention, petitioner urges that an ancillary administrator in one
jurisdiction is not in privity with an ancillary administrator in
another jurisdiction, and that therefore a judgment against one is
not a bar to a suit by the other. And this was the ruling of the
circuit court. The circuit court of appeals took the contrary view,
and rested its judgment upon the conclusive effect of the Montana
action.
We shall assume that there is identity of subject matter between
the Montana action and that at bar, but the question remains, was
there identity of parties? An extended discussion of the question
is made unnecessary by the case of
Brown v. Fletcher,
210 U. S. 82. In
that case, a suit in equity against Fletcher, brought in his
lifetime, was revived after his death, and a decree obtained.
Fletcher resided in Michigan, where he died leaving a will, which
was duly probated in the Probate Court of Wayne county in that
state, in which the decree of the Massachusetts court was filed as
evidence of a claim against the estate. Its effect as such was
denied, and the case was brought here by writ of error. Replying to
the contention of plaintiff in error, that the Michigan executor
and the administrator with the will annexed of Fletcher's estate in
Massachusetts were in such privity that the decree was conclusive
evidence of it in the proceedings in Michigan, this Court held that
the decree was not binding upon the Michigan executor or the estate
in his possession, citing
Vaughan v.
Northup, 15 Pet. 1;
Aspden v.
Nixon, 4 How. 467;
Stacy v.
Thrasher, 6 How. 44. The latter case was quoted
from as follows:
"Where administrations are granted to different persons in
different states, they are so far deemed independent of each other
that a judgment obtained against one will furnish no right of
action against the
Page 211 U. S. 363
other, to affect assets received by the latter in virtue of his
own administration; for, in contemplation of law, there is no
privity between him and the other administrator.
See
Story, Confl. of Laws § 522;
Brodie v. Bickley, 2 Rawle
431."
McLean v. Meek,
18 How. 16;
Johnson v. Powers, 139 U.
S. 156, were also cited, and it was said that the
"doctrine was enforced in Massachusetts.
Low v. Bartlett,
8 Allen 259."
Respondents insist that this doctrine has no application to the
Montana judgment, and urge that the latter was a bar of the pending
suit (1) because it was a judgment on the merits, and (2) because
such a judgment
"against an ancillary administrator in the suit brought by him
is conclusive as to that cause of action against the domiciliary or
any other ancillary administrator."
And this is said to follow from the proposition which
respondents advance that "the authorized act of an ancillary
administrator as to property of the intestate within his
jurisdiction is binding everywhere," and it is hence concluded that
a suit brought by an ancillary administrator is subject to the same
principle as an act done touching tangible property. That the
argument by which this conclusion is supported has strength is
established by the fact that the circuit court of appeals yielded
to it, and it is said to be sanctioned by
Biddle v.
Wilkins, 1 Pet. 686;
Wilkins v. Ellett,
108 U. S. 256;
Talmage v. Chapel, 16 Mass. 71. But, as these cases
preceded
Brown v. Fletcher, they must be regarded as
consistent with it. Besides, in that case,
Johnson v.
Powers, 139 U. S. 156, was
cited as establishing, on the authority of
Aspden v. Nixon
and
Stacy v. Thrasher, supra, Low v. Bartlett, 8 Allen,
259, the doctrine that a judgment recovered against the
administrator of a deceased person in one state is no evidence of
debt in a subsequent suit by the same plaintiff in another state,
either against an administrator, whether the same or a different
person, appointed there, or against any other person having assets
of the deceased. That there is a certain amount of artificiality in
the doctrine was pointed out in
Stacy v. Thrasher, and
that it leads to the inconvenience
Page 211 U. S. 364
and burdensome result of retrying controversies and repeating
litigations. The doctrine, however, was vindicated as a necessary
consequence of the different sources from which the different
administrators received their powers, and the absence of privity
between them, and that the imputations against it were not greater
than could be made against other "logical conclusions upon admitted
legal principles." It is not necessary, therefore, to review in
detail the argument of respondents. Its fundamental concept is that
the authorized act of an administrator as to property of the
intestate within his jurisdiction is binding everywhere, and it is
said that a suit brought by an administrator is subject to the same
principle. The generality of the conclusion, however, counsel
immediately limits by the concession that it does not include a
suit brought against an administrator, whether he successfully or
unsuccessfully defends it. In other words, the principle is true
only of an action brought by an ancillary administrator to enforce
a claim in behalf of the estate, and judgment goes against him. But
counsel even limits this again, and says it would not be
binding
"in the sense of creating a personal liability for costs, if
costs be awarded, or otherwise, but it is binding in the sense that
the cause of action has been effectively disposed of."
That is, as counsel explains, merged in the judgment. We do not
think that the doctrine announced in
Brown v. Fletcher,
supra, admits of these distinctions, and surely the estoppel
of a judgment must be mutual. The argument of respondents contends
for the contrary; it makes a judgment against an ancillary
administrator binding against other administrators, but not binding
for them. We think, therefore, that the Montana judgment is not a
bar to the pending suit.
On the merits, there are two propositions: (1) did the
complainant establish the existence of a debt due from Coram and
Root to Ingersoll? (2) did she establish the existence of a lien?
On neither of these propositions did the court of appeals pass; the
circuit court decided them in favor of complainant.
Page 211 U. S. 365
We need not recite the evidence. The circuit court found, and,
we think, rightly found, that the agreement sued on was performed.
In other words, that the will of Davis was defeated, and that the
contestants got their shares through the services of Ingersoll. The
form in which the defeat was expressed is unimportant. The will as
propounded was defeated. As propounded, it cut them off from
inheritance. As qualified in probate, by compromise more property
was received than would have come to them by inheritance. And the
evidence leaves no doubt that it was brought about, to quote the
bill, "by the force, effect, and stress" of the contest and by the
services which it is admitted Ingersoll rendered, and from the
belief that the will as propounded would not receive probate and
would only receive probate when so qualified as to recognize the
rights of the contestants as heirs of the estate. That it did not
do so was its defect, and to make it do so was the purpose for
which they employed Ingersoll and which his services achieved.
There was performance therefore of his contract.
The next question is, does the evidence establish the existence
of the lien? An affirmative answer must be given. It is manifest
that payment to Ingersoll was dependent upon success, but it is
equally manifest that he relied upon more than the personal
responsibility of the parties. The so-called five heirs, Elizabeth
S. Ladd, Ellen M. Cornue, M. Louise Dunbar, Ellen Cornue, and Henry
A. Root, entered into an agreement in which it was recited that
controversies had arisen in regard to the will, and that Root had
rendered services and expended money in behalf thereof, and had
undertaken "to procure evidence, counsel, and such other needs" as
were necessary for opposing the will and obtaining for the others
their "respective rights and shares" of the estate, and in
consideration thereof there was assigned to Root and one Gideon
Wells one-third part of each of their interests to reimburse Root
for the moneys he had expended or should expend or the liabilities
which he might incur on account thereof. And it was agreed
Page 211 U. S. 366
that the assignment was to be in full for past or future
liabilities. Root, on his part, agreed to employ counsel and to do
all things necessary to secure the interests of the other
parties.
It is alleged in the complaint and admitted by the answer that
Coram acquired the remaining interests of Elizabeth Ladd and Mary
L. Dunbar, and that the interests so acquired were dependent upon
the prosecution of the objections to and contests of the validity
of the will until the shares of the five heirs should be secured to
them by a grant from the proponent of the will or by the decree of
the District Court of Montana. This being the situation, Ingersoll
wrote to Root as follows:
"May 1st, 1891"
"My dear Root: Do not know whether I can get the money, but feel
sure I can raise $25,000 -- have already secured $13,000."
"Now, there is another thing: I suppose it is best for you and I
to have a specific and definite understanding in regard to my fee.
Of course, if you should lose the case, you could not pay. We can
raise money enough to pay expenses and, of course, I shall want
expenses, but the real question is as to what I am to have in case
of success and how that is to be secured --
i.e., what
papers are necessary, etc."
"Let me hear from you."
"Yours,"
"R. G. Ingersoll"
To which Coram and Root replied as follows:
"Butte City, Mont., August 17, 1891"
"R. G. Ingersoll, Esq., Butte City, Montana."
"Sir: We agree that for your services in the contest of Maria
Cummings and Henry A. Root against the probate of the alleged will
of A. J. Davis, deceased, rendered and to be rendered, that your
fee, in case the will is defeated and our clients get their shares,
shall be one hundred (100,000) thousand dollars, and that your
expenses and disbursements shall be paid in any event. "
Page 211 U. S. 367
"There is to be no personal obligation against J. A. Coram in
the event that the interests represented by Henry A. Root are
unsuccessful, and in no event is the said J. A. Coram obligated
except to pay such fee out of the funds secured from the estate of
A. J. Davis, deceased, by Maria Cummings, Lizzie S. Ladd, M. Louise
Dunber, and Mrs. Ellen S. Cornue and Henry A. Root."
"Henry A. Root"
"J. A. Coram."
It is evident, therefore, that Ingersoll asked for security in a
definite and written form. We do not think it can be said that he
sought only a promise to pay. That followed from his employment,
and, besides, Coram stipulated against personal liability, but did
obligate himself to pay "out of the funds secured from the estate."
And this is the test of the agreement. It is the exception that
establishes that, as to Root, there was a personal and property
obligation; as to Coram, a property obligation. It is confirmed by
excerpts from the letters of Root, set out in the complaint and
introduced in evidence. In those letters, he expresses a desire
"that Mrs. Ingersoll should realize out of the Davis estate as much
as possible," and would "bend every effort" to that end. And,
explaining the agreement, he said that Ingersoll "was to receive
$100,000 for moneys collected from the Davis estate for his
services," and assured Mrs. Ingersoll that he would do everything
in his power to see that she received "as much from that fund"
(referring to the estate in Boston).
The sufficiency of the agreement of August 17, 1891, to create a
lien, seems not to have been seriously questioned in the circuit
court upon the argument of the demurrer. However, the court said
that,
"upon all settled rules with reference to the construction of
such instruments, we cannot doubt that this one of August 17, 1891,
created a lien on the funds therein referred to in behalf of Mr.
Ingersoll."
On the final hearing, the effect of the instrument was
contested, and the court adhered to its ruling, saying:
"Whether or not the particular
Page 211 U. S. 368
agreement creates a lien is a matter of construction. In this
case, the fact that there was no primary personal responsibility on
J. A. Coram specially serves to stamp the agreement in issue as
declaring a purpose to create a lien. Therefore, on the whole, we
hold that, on this final hearing on bill, answer, and proofs, the
bill must be sustained."
The conclusion of the court is sustained by authority. In
Wylie v. Coxe,
15 How. 415, a contract was made with an attorney for the
prosecution of a claim against Mexico to pay him a contingent fee
of five percent out of the fund awarded. It was held that the
agreement constituted a lien upon the fund. In
In re
Paschal, 10 Wall. 483, in the letter retaining
Paschal, it was said that his compensation would depend upon the
action of a future legislature, "unless a recovery is had in the
suit, in which event I shall feel authorized to let you retain it
out of the amount received." It was held that, in accordance with
the prevailing rule in this country, Paschal had a lien on the fund
in his hands for disbursement and professional fees. The case was
cited in
McPherson v. Cox, 96 U. S.
404,
96 U. S. 417,
and the doctrine repeated.
See also Central Railroad v.
Pettus, 113 U. S. 116;
Louisville &c. Railroad Company v. Wilson,
138 U. S. 501,
138 U. S. 507.
In
Walker v. Brown, 165 U. S. 654, it
was held that every express executory agreement in writing whereby
the contracting party sufficiently indicates an intention to make
some particular property, real or personal, or fund, therein
described or identified, a security for a debt or other obligations
creates an equitable lien on the property so indicated. This was an
application of the doctrine of
Fourth Street Bank v.
Yardley, 165 U. S. 634, and
Ketchum v. St. Louis, 101 U. S. 306.
These cases are not opposed by
Trist v.
Child, 21 Wall. 441, and
Wright v.
Ellison, 1 Wall. 16. In the latter case, it is said
that it is indispensable to the lien thus created that there should
be a distinct appropriation of the fund by the debtor and an
agreement that the creditor should be paid out of it. These
conditions are satisfied in the case at bar.
The other contentions of respondents assert a defect of
parties
Page 211 U. S. 369
and error in the decree as to the amount of interest adjudged to
Root and Coram in the property. In the first contention we do not
concur.
The second contention is justified. We do not think, however,
that it is necessary to enter into all of its details, with some of
which, we may say, we do not agree. We think that the circuit court
rightly, as we have already pointed out, adjudged that the five
heirs were entitled, by virtue of the final decree in Montana, to
515 1/2 eleven hundredths of the estate in Massachusetts, and in
adopting, as we think it did, in making division among them
according to intestacy -- that is, in proportion to the shares they
would have taken in case Davis had died intestate. Those shares the
bill alleged and the answers admitted would have been as follows:
Sarah M. Cummings and Elizabeth S. Ladd, one eleventh each; Henry
A. Root, Ellen S. Cornue, and Mary Louise Dunbar, one twenty-second
each -- in all 350 eleven hundredths of the estate. But there was
error in adjudging the interest remaining in Sarah Maria Cummings
and Ellen S. Cornue, after the assignment of one-third of their
interest to Root, to be respectively 62 2/3 eleven hundredths and
33 1/3 eleven hundredths. The bill shows that they were entitled
respectively to one hundred eleven hundredths and fifty eleven
hundredths of the amount they, as two of the five heirs, would have
been entitled to if Davis had died intestate -- that is, those
shares of three hundred and fifty eleven hundredths. But the amount
was increased by the decree in Montana to 515 1/2 eleven
hundredths, and their shares thereof necessarily increased. In
other words, as they were entitled respectively to two sevenths and
one-seventh of the first amount, they are entitled respectively to
two sevenths and one-seventh of the second amount, to-wit, 147 4/14
eleven hundredths, and 73 9/14 eleven hundredths, one-third of
which amounts was assigned to Root. There were left in them
respectively, therefore, 98 4/21 eleven hundredths and 49 2/21
eleven hundredths. To Root, as we have seen, they assigned
one-third of their shares, and there was also assigned to him
one-third of the shares
Page 211 U. S. 370
of Elizabeth S. Ladd and Mary Louise Dunbar, making, with the
one-seventh to which he is entitled in his own right, 220 13/14
eleven hundredths. Coram is entitled as assignee to the other two
thirds of the shares of Ladd and Dunbar, to-wit, 147 4/14 eleven
hundredths, making the total in him and Root of 368 3/14 eleven
hundredths instead of 415 1/2 eleven hundredths, as stated in the
decree. The decree must be modified accordingly.
The decree of the circuit court of appeals is reversed and that
of the Circuit Court is modified as above indicated, and as
modified, affirmed.
MR. JUSTICE HOLMES and MR. JUSTICE MOODY dissent.
*
"1. Has the circuit court jurisdiction to ascertain and declare
a lien upon property in the possession of the administrator
appointed by the Probate Court for the County of Suffolk and State
of Massachusetts?"
"2. Has the circuit court jurisdiction to enforce by foreclosure
a lien upon property so situated?"
"3. Has the circuit court jurisdiction to determine the shares
of Root and Coram in the property so situated?"
"4. Has the circuit court jurisdiction, upon the pending bill,
either in its present form or as it might be amended, to direct
that Leyson, Root, Coram, or either of them, should hold any
property coming into their hands by order of distribution of the
probate court, upon the trust to satisfy the claim of the
complainant?"
"5. To what extent, if any, is the jurisdiction of the circuit
court limited or affected by the fact that the property from which
payment is sought is in the hands of an administrator appointed by
the Probate Court of Suffolk County?"
"6. Has the Probate Court of Suffolk County, as ancillary to its
possession of the property, jurisdiction in equity to ascertain,
declare, enforce, and foreclose a lien upon it?"
