56 Vt. 368 | Vt. | 1883
The opinion of the court was delivered by
The plaintiff seeks to recover the amount of a judgment recovered in his favor as administrator of the estate of Chloe D. Spooner, which the defendants, attorneys for him and Mrs. Spooner in the suit, collected,-and retained the money. The suit was for the recovery of property which belonged to
I. It is contended by the estate that that portion of the defendant’s claim for legal services which accrued in the lifetime of Mrs. Spooner is barred by their failure to present and have it allowed by the commissioners on her estate. This contention would be sustained if this were an action by the defendants to recover for such services. But the defendants claim that they had a lien at common law upon the money which came into their hands in the course of their employment as attorneys, and that they had the right to retain,the money until their claim for services, both before and after the decease of Mrs. Spooner, was satisfied. Liens upon property belonging to an estate, whether created by mortgage, or pledge, whether upon real or personal property, are not discharged by failure to have the debts, for which the property is held, allowed by the commissioners on the estate. Doubtless, to render the pledge of personal property available in such a case, it must be in the possession of the pledgee. Such allowance is only necessary to secure a dividend, or payment in full, out of the estate. The lion withholds so much of the property from the estate as is thus pledged to the extent of the debt for which it is pledged. The right to enforce payment from the property pledged, is not affected by failure to have the debt allowed by the commissioners on the estate; but the right to participate with the creditors of the estate in a dividend declared by the Probate Court is thereby lost. Richmond v. Aiken, 25 Vt. 324; Graf
If the lien existed in their favor, the defendants might therefore retain the money for the payment of that part of their claim for legal services which accrued before the death of Mrs. Spooner, as well as for that part which accrued subsequently to her decease.
II. It is further contended by the plaintiff that at most, the defendants can only retain from the money collected, the amount of the taxable costs, for their services in the suit in which the money was recovered. Under the decision of this court in Heartt v. Chipman, 2 Aik. 162, and until the recent decision of Weed Sewing Machine Company v. Boutelle, trustees and claimants, (reported in this volume) this contention would prevail, if the defendants were asserting only what is called an attorney’s charging lien upon the judgment which had been or might be recovered in the suit by aid of their services; that is, if they came to the court, to have their services and disbursements made a charge upon whatever judgment might be recovered in the suit, so as to protect themselves against an assignment of the claim in prosecution, or a settlement of it, before judgment; or to have them made a charge upon the judgment already recovered so as to protect them against an assignment of the judgment, or its payment to the plaintiff. Tins protection and lien the attorney can acquire and assert by filing a claim of such lien in the court where the cause is pending,or judgment recovered, and by giving notice thereof to the defendants in the cause. Therefore, if the suit be for the recovery of an undisputed debt, and not for a tort to the extent of such lien the court will protect him against an assignment, or settlement of the claim in suit, or payment of the judgment when recovered, without first providing for payment for his services and disbursements in that cause. CJnder the former decision, such lien only extended to the taxable costs in the suit for such services and disbursements ; but under the latter decision it is extended so as to cover, what, as against the client,