testimony and report as to value of services rendered by the attorney to a deceased administrator prior to the issuance of letters of administration. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 480-482; Dec. Dig.202(1).] In the matter of the estate of James A. Nocton. On application by an attorney employed by an administrator for an order determining and enforcing his alleged lien. Application denied. Thomas F. Keogh, of New York City, for administratrix. Robert A. B. Dayton, of New York City, for John Jordan and others. COHALAN, S. This is an application by an attorney for an order determining and enforcing his alleged lien. It appears from the moving papers that the petitioner was authorized and instructed by Anthony P. Nocton to commence a proceeding to obtain letters of administration upon the estate of the decedent; that such letters were subsequently issued by this court to the said Anthony P. Nocton and Mary E. Haynar; that another attorney was selected by the coadministratrix to represent her in the administration of the estate; that thereafter Anthony P. Nocton died, and the estate of the decedent is now being administered by the coadministratrix and her attorney. It is further alleged in the petition that the estate amounts to about $50,000. The applicant has submitted an affidavit showing in detail the services alleged to have been rendered by him, and from his affidavit it appears that most of the services were performed subsequently to the entry of the decree granting letters of administration upon the estate. It has been held that the Surrogate's Court has jurisdiction under section 475 of the Judiciary Law (Consol. Laws, c. 30) to determine and enforce the amount of an attorney's lien in a special proceeding instituted for that purpose. Matter of Regan, 167 N. Y. 338, 60 N. E. 658; Matter of Fitzsimmons, 174 N. Y. 15, 66 N. E. 554. That section provides that: The attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim which attaches to a verdict, report, judgment or final order, in his client's favor and the proceeds thereof." There is no action or proceeding pending before this court in which either the administrator who authorized the petitioner to appear for him or the administratrix of the decedent's estate is interested. [1-4] The proceeding to obtain letters of administration was terminated by the entry of the decree granting such letters. The lien of the petitioner for services rendered to Anthony P. Nocton upon his application for letters of administration attaches to that decree, but no lien for services rendered subsequently to the issuance of letters. of administration can attach to the decree granting the letters. The only way in which the court could enforce the petitioner's lien against the decree would be by setting aside the decree and revoking the letters granted thereunder. But the statutory enumeration of the causes for which letters of administration may be revoked is exclusive, and the failure of the administrator to pay his attorney's fees is not in cluded in that enumeration. The court, therefore, cannot enforce the lien by revoking the letters of administration. Under the statute the lien also attaches to the proceeds of the decree. But in this matter there are no proceeds, as the decree did not determine the right of the petitioner's client to any part of the decedent's estate, but merely his right to act as administrator of it. Therefore there are no proceeds of the decree to which the lien could attach. [5-8] Whether an attorney who performs services for an executor or administrator in the administration of an estate has a lien upon the assets of the estate for such services does not seem to have been decided by the courts of this state. There is a dictum in the Matter of Smith, 111 App. Div. 25, 97 N. Y. Supp. 171, to the effect that such services are a charge upon the estate, although not a debt of the estate. It is true that an executor may pay for such services out of the estate, and the surrogate, upon an accounting by the executor, may allow him for such payment, provided it is reasonable in amount and the services were necessary and proper in the administration of the estate. But it does not necessarily follow from this recognized principle of law that an attorney has a lien upon the assets of the estate for such services. An executor or administrator, who employs an attorney to advise him in the administration of an estate, incurs a personal liability for the value of the services performed by such attorney. Mygatt v. Wilcox, 45 N. Y. 306, 6 Am. Rep. 90; Austin v. Munroe, 47 N. Y. 360; Seaman v. Whitehead, 78 N. Y. 306; U. S. Trust Co. v. Stanton, 139 N. Y. 533, 34 N. E. 1098. It does not seem to be reasonable or consistent with the proper application of legal principles to hold that an attorney has a cause of action against an executor or administrator individually for services performed in the administration of an estate, and at the same time has a lien upon property which the executor or administrator holds as trustee for the legatees or next of kin. I am therefore inclined to think that an attorney who performs services for an executor or administrator of an estate has not a lien upon the general assets of the estate for the value of his services. While the court could appoint a referee to take testimony and report as to the value of the services rendered by the attorney to the deceased administrator prior to the issuance of letters of administration upon the estate, such a proceeding would be futile in view of the fact that the court could not enforce the lien of the attorney for the value of such services. The application is therefore denied. In re RABELL. (Supreme Court, Appellate Division, Second Department. November 24, 1916.) 1. EXECUTORS AND ADMINISTRATORS 472-Power of ATTORNEY TO INITIATE SETTLEMENT STATUTE. An attorney employed by administratrices is not entitled to initiate their settlement, unless he is a "person interested in the estate or fund," within Code Civ. Proc. § 2727, and an attorney's lien on the distributive shares of the administratrices will assure the attorney's right to petition, if sanctioned by Judiciary Law (Consol. Laws, c. 30) § 475, creating an attorney's lien. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2025-2040; Dec. Dig. 472.] 2. ATTORNEY AND CLIENT 182(1)-ATTORNEY'S LIEN-EMPLOYMENT BY AD"REPORT," "DECISION," "JUDG MINISTRATRICES-STATUTE—"VERDICT," An attorney, employed by a decedent's administratrices to act in procuring their letters, and also generally as to matters pertaining to administration, among other things, in adjusting the transfer tax, did not have an attorney's lien on the distributive shares in the estate of the administratrices, under Judiciary Law, § 475, providing that, from commencement of an action or special proceeding, or service of an answer containing counterclaim, the attorney who appears for a party has a lien on his client's cause of action, claim, or counterclaim attaching to verdict, report, decision, judgment, or final order in his client's favor, and the proceeds, since the surrogate's order appointing the administratrices was not a "verdict," "report," "decision," "judgment," or "final order," that decided that they had property rights in the estate, while in the proceedings the attorney did not act for the administratrices individually, but for all parties interested. [Ed. Note.-For other cases, see Attorney and Client, Dec. Dig. 182(1). For other definitions, see Words and Phrases, First and Second Series, Decision; Final Order; Judgment; Report; Verdict.] 3. ATTORNEY AND CLIENT PART OF ATTORNEY. 129(2)-PRESUMPTIONS-IMPROPER ACTION ON It is not presumed that an attorney, retained by administratrices to act in procuring letters and generally in matters pertaining to the administration, acted for the special furtherance of some individual distributees, to the neglect or harm of others. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 288, 289; Dec. Dig. 129(2).] 4. EXECUTORS AND ADMINISTRATORS 283-ATTORNEY'S SERVICES-JURISDICTION OF SURROGATE TO ASCERTAIN AND ORDER PAYMENT STATUTE. In view of Code Civ. Proc. § 2692, authorizing a representative to pay from the estate his legal and proper expenses of administration, which shall be set forth in his account, when filed and settled by the surrogate, the surrogate, who granted letters to administratrices, upon petition of the attorney retained by them to act in procuring the letters and generally for the estate, has jurisdiction to ascertain the value of the attorney's services to the administratrices as such, and to order payment from the estate, though the attorney can enforce collection against the administratrices as individuals; the law being that the estate should compensate, and that the surrogate should fix the amount. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1120-1131; Dec. Dig. 283.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 5. EXECUTORS AND ADMINISTRATORS 283-JURISDICTION OF SURROGATE TO ORDER PAYMENT OF ATTORNEY-REQUEST FOR ACCOUNTING. An attorney employed by administratrices need not ask for an accounting in moving the surrogate, who appointed the administratrices, to decide what sum they shall pay for the attorney's services. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 8 1120-1131; Dec. Dig. 6. EXECUTORS AND ADMINISTRATORS SURROGATE TO PAY ATTORNEY. 283.] 471-RIGHT TO ACCOUNTing-Order of If administratrices, who retained an attorney, are directed by the surrogate, on the attorney's motion, to pay him a sum for services, they are privileged to have a final accounting, to protect themselves, or for other reasons. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 2018-2024; Dec. Dig. 471.] Appeal from Surrogate's Court, Westchester County. In the matter of the petition of Burlock E. Rabell to compel Rebecca A. D. Wendel Swope and Ella V. Von E. Wendel to render and settle their accounts as administratrices, etc., of Augusta A. S. Wendel, deceased. From an order of the Surrogate's Court, directing the administratrices to render and settle their accounts, they appeal. Order reversed, and matter remitted to the Surrogate's Court for further proceedings. Argued before JENKS, P. J., and THOMAS, STAPLETON, MILLS, and PUTNAM, JJ. Lewis L. Delafield, of New York City (George Flint Warren, Jr., of New York City, on the brief), for appellants. Burlock E. Rabell, of New York City, pro se. THOMAS, J. The appellants, two of the next of kin of the decedent, were, without opposition, and at least by parity of right, appointed administratrices of the estate. Mr. Rabell, the respondent, who during the intestate's life had professional relations to her affairs, was retained by such persons to act as lawyer, and he did so, not only in procuring the letters, but also generally as to some matters pertaining to administration, among other things in adjusting the transfer tax. He presented a bill deemed by the representatives so considerable that they refused to pay it, whereupon he petitioned that they render and settle their accounts. Thereupon the order under review was made. [1] The respondent is not entitled to initiate such settlement unless he is a "person interested in the estate or fund," within the meaning of section 2727 of the Code of Civil Procedure. He asserts that he has such relation by reason of an attorney's lien on the distributive shares of the two individuals who retained him. The lien would assure his right to petition, but it must be sanctioned by section 475 of the Judiciary Law, which is: "From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In Matter of Heinsheimer, 214 N. Y. 361, 108 N. E. 636, it is stated with reference to the fund involved: "If the attorney got possession of the fund, he had a general lien. If he did not get possession, his lien was for the services that brought the fund into existence." In Williams v. Ingersoll, 89 N. Y. 508, 517, Judge Earl wrote: "The theory upon which the lien is upheld is that the attorney has, by his skill and labor, obtained the judgment, and that hence he should have a lien thereon for his compensation, in analogy to the lien which a mechanic has upon any article which he manufactures." I would not take a narrow view of the productive effect of the services. It is true that a lawyer's efforts may result, literally, in transferring to the client money or property, as in actions where damages are collected. But, on the other hand, he may merely effect the restoration or delivery of property, as in actions of replevin. There he creates nothing, but restores or brings something into his client's possession. I will not divert the discussion to actions where a specific existing res is the subject-matter. Such are actions to remove cloud on title, to obtain injunctive relief, and others that readily come to mind. [2, 3] Now, looking liberally at the question, what, or whose, part of the estate did the respondent's services bring into existence, produce, or tend to produce? The state declared the devolution of the property, and several persons thereby became the beneficial owners of it. No one was withholding the property or disputing their right to it. But between their then status and their possession and enjoyment of the property stood the administration of the estate. That means that measures must be taken to establish and to discharge debts and public charges, to identify the next of kin, and to gather and to deliver the net estate to them. For that certain papers must be drawn for proceedings before and by the surrogate. That required a lawyer. There was no representative of the estate to employ one. Hence the appellants' next of kin did it. The result was that the appellants were appointed to take title to the personal property for the purpose of administration and to administer the estate. But so far the estate remained what it was without addition or lessening. The individual relation of each next of kin to it was unchanged. The two persons petitioning for appointment were not asking to enforce a cause of action, counterclaim, or individual claim, except the claim to administer. The order appointing them was not a verdict, report, decision, judgment, or final order, that decided that they had property rights in the estate, except as incidentally for the purpose of the decision it was determined that they were of the next of kin and had right to letters. But the petition for acquisition of letters cannot be considered in isolation, but rather as the commencement of a proceeding that would remove impediment, and deliver to the next of kin, one and all, their property. Every successive step also was necessarily taken for that one end, and was enabling for the reduction of the property to the possession of the next of kin, with the full powers of ownership. Real property descended to the same persons. If the |