ALBERT W. RANSOM, Appellant,
EDITH M. BARKER RANSOM, Individually and as Executrix, etc., of GEORGE A. BARKER, Deceased, and Others, Respondents.
APPEAL by the plaintiff, Albert W. Ransom, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 28th day of December, 1910, upon the decision of the court rendered after a trial at the New York Special Term.
George W. Alger, for the appellant.
George P. Breckenridge and Henry Bacon, for the respondents.
The plaintiff, who is an attorney and counselor at law, brings this action to have adjudged valid a certain assignment by defendant of part of her interest, both principal and income, in the residuary estate of George Bell, deceased, and to enforce his rights thereunder.
George Bell died on December 9, 1881, leaving a last will and testament wherein, among other things, he provided that the net income of his residuary estate should be divided by his trustees between his nephews, George Barker and Charles Barker, and his niece, Mary Leavitt, share and share alike, during the life of his daughter, Catherine B. Bell, less such sum, not exceeding $15,000 per annum, as the trustees might deem necessary for the support and maintenance of his daughter; and upon the death of his daughter leaving no lawful issue her surviving, the residuary estate was devised and bequeathed in equal shares to his said nephews and niece. Catherine Bell, the daughter of the decedent, is still living and is of the age of seventy years, unmarried and incompetent, a committee of her person and property having been appointed, and she was incompetent at the time of her father's death. His estate amounted to upwards of $1,000,000. The proper construction to be given to the will had been a matter of controversy for some years, and litigation had ensued, among the questions there involved and bitterly contested being (1) whether the interest of the nephews and niece under the will was a vested or a contingent one, and (2) whether such interest was alienable. One of the nephews, Charles Barker, claimed that the interest was contingent and inalienable, in order to defeat a certain assignment of an interest therein
made by him, and the executors of the Bell estate, of whom George A. Barker was one, sustained him in that contention. The matter had not been finally adjudicated when George A. Barker, the nephew of Bell, on October 1, 1906, married the defendant Edith M. Barker Ransom, who had been his housekeeper for sixteen years; within a few days thereafter he made his will leaving everything, including his interest in his uncle's estate, to his wife. On January 27, 1907, George Barker died, and his will having been offered for probate by his wife, it was contested by his daughters, Lizbeth Bell Scott and Ethel I. Parker.
The plaintiff had been an office associate of Mr. Tarrant Putnam, who was attorney for George Barker as one of the trustees of the Bell estate, that having been the sole business of Barker for the twenty-five years preceding his death.
Plaintiff by reason of his association with Mr. Putnam and his participation in various litigation, became acquainted with the details of the estate and of the interests of the various parties therein and had earned the confidence of Mr. Barker, whose will he had drawn, and who advised his wife that the plaintiff would be a good man to advise her; so that when the daughters opposed the probate of the father's will she retained the plaintiff as her attorney. The will was admitted to probate in March, 1907, and plaintiff was paid by Mrs. Barker for his services in that proceeding.
Thereafter plaintiff conferred with Mrs. Barker regarding her interests under her husband's will, and she was advised by plaintiff that the next thing to be done was to establish the interest of George Barker in the Bell estate. Mrs. Barker demurred to so doing, saying that her husband had always told her that there was nothing to it, as he would have to outlive Catherine Bell before he would get anything. To this plaintiff replied that he had previously been of that opinion but he had changed his view and that there was considerable to it, to which she replied that she did not want to bother and did not want to waste any money and proposed to keep the money she had. Plaintiff told her that she was foolish not to assert her claim for the interest in the Bell remainder. But she replied 'no,' that she proposed to keep what she had.
Mrs. Barker then inquired whether some arrangement could not be made by plaintiff to take up this matter, and thereafter he proposed to represent her interests on a contingent basis of twenty-five per cent, to which she replied, 'Very well; that is satisfactory.'
Plaintiff then suggested that she talk it over with somebody and write to her brother Alfred, which she refused to do, saying she wanted to talk it over with nobody, as she was satisfied. Plaintiff then promised to prepare a contract in accordance with this arrangement. But there was some delay in doing so, and it was not prepared until some two months afterwards, in May, 1907. Plaintiff claims that he repeatedly asked Mrs. Barker to consult some one about it, suggesting and furnishing names of persons with whom she might confer, all of which she refused to do. At this time Mrs. Barker was the possessor in her own right of cash to the extent of $50,000, $45,000 of which represented the proceeds of the sale of real estate at Baldwins, L. I., given to her by her husband, the remaining $5,000 being the amount realized from the auction sale of furniture and personal effects upon the same property. She appears to have had no obligations of any kind. Frequent interviews were held between plaintiff and Mrs. Barker during this period, averaging five times a week, until June 2, 1907, when she wrote plaintiff a letter informing him that as she was about to go away towards the end of the week to be operated upon, she wanted 'to have that contract signed & my will made before going & do not wish you to put this off any longer.' Plaintiff then invited her to come to his office, which she did, and he again asked her to consult somebody about the agreement, which she refused to do.
The plaintiff reiterated his desire that she should advise with some disinterested party, but upon her continued refusal so to do, he finally suggested that she go with him to see the president of the Broadway Savings Bank, in which institution she was a depositor, and to this she acceded.
Plaintiff and Mrs. Barker went to the president's private room and in his presence the agreement was read over to Mrs. Barker, together with the collateral assignment which accompanied it. Mrs. Barker then said that she was satisfied with the agreement
without going over there, but as Mr. Ransom had insisted upon her going to a third party, she had come over to please him. Mrs. Barker then signed the agreement and acknowledged it before the bank notary, and at the same time, on June 4, 1907, executed and acknowledged in the same way an assignment of her interest in the George Bell estate to the extent of $100,000. Mr. Ransom then claims to have given her a copy of the contract. This agreement recites the death of George Bell and the probate of his will; the death of George Barker and the probate of his will, the terms of which are therein set forth; the fact that doubts have arisen as to whether the remainder set forth in a certain paragraph of the will of George Bell and limited to George A. Barker after the death of Catherine Bell is contingent or vested; also as to the right of Barker to dispose of the same and of any other interest in said will remaining after his death; that the claim of the widow is disputed; that appropriate action is about to be commenced for the judicial construction of the disputed provision and for an adjudication as to the interest of Mrs. Barker in the Bell estate, derived through the will of her deceased husband or otherwise; that the accounting by Barker of his transactions as trustee of the estate would be required; that it was apprehended that divers actions and proceedings would be instituted arising out of the administration of the Bell estate which would affect the ultimate rights of Mrs. Barker; that Mrs. Barker, in view of the possible failure of a final adjudication in favor of her interests, was not willing to incur expenses for extended legal services which might be required; that she preferred to preserve her separate estate and funds and to make more liberal compensation, but only in the event of success in having an adjudication as to her rights in the property of the said estate of George Bell determined in her favor; that it was mutually represented that the estate of George A. Barker, save what it might receive under the said will of George Bell, deceased, was insolvent and that Mrs. Barker could not receive anything therefrom with which to meet the expenses of litigation; that Mrs. Barker was desirous of having plaintiff herein represent her interests and render services, counsel and advice and to pay therefor contingently upon establishing her right in and to
such property based upon a percentage of her interest whether under the will of her husband or by intestate succession; and that it was mutually represented that the value of the interest in the Bell estate claimed by Mrs. Barker was believed to amount approximately to $400,000 in principal, together with the income thereon accruing during the lifetime of Catherine B. Bell. Then followed provisions by which Mrs. Barker retained and employed Mr. Ransom to act as her attorney and counsel in any and all suits which it might be necessary or advisable for him, acting in her behalf and interest, to commence, or which might be commenced against her affecting in anywise her rights in and to any of the property of George Bell, deceased, whether in remainder or otherwise; and she agreed to pay him the sum of twenty-five per cent of the finally determined value of the remainder of the amount of said remainder adjudicated to or received by her, whether under said will of George A. ...