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Court Reviews Action to Impress a Trust on Funds Owned by Father


Probate Lawyers said that records reveal that in an action to impress a trust upon funds on deposit claimed to be the property of the father, the father moved to enjoin the his daughter, and the banks in which the moneys are deposited, from withdrawing or in any manner disposing of the same. During the pendency of the motion the father died. The father’s will, which was admitted to probate, named the daughter as the sole legatee of the father. The daughter now cross-moves to have the action discontinued and to vacate the temporary stay contained in the order to show cause which brought on the original motion. The executor of the deceased’s estate, who is also the daughter’s attorney, refuses to continue with the action and joins in asking for the relief sought by daughter. The sole objectant to the cross-motion is the attorney for the father in this action who claims a lien for services rendered herein and moves by way of separate petition to impress such lien under section 475 of the Judiciary Law.

A New York Estate Lawyer said that the father’s action involved approximately $30,000. Immediately after the service of the summons and complaint, together with the motion papers containing the stay, the father and his daughter arranged for a settlement. The father notified his attorney to discontinue the action. To work out the mechanics of the settlement the father’s attorney adjourned the motion containing the stay but in the meanwhile the father died. The terms of settlement provided that the daughter would retain the bulk of the money in dispute except that $1,300 would be turned over to the father and that she would pay the funeral, doctor’s and hospital bills in connection with her late mother’s last illness and funeral, which amounted to approximately $1,800. The attorney asks for a lien in an amount of $6,000 to $7,500. No agreement between the attorney and the father had been made with respect to the attorney’s fees. Admittedly the estate of the father is in sound financial condition, having upwards of $100,000 exclusive of the moneys involved in this action, and it is willing to pay the attorney’s just claims. Under these circumstances the wishes of the father to discontinue the action should be respected and given effect.

Westchester County Probate Lawyers said that it was was aptly said in Lee v. Vacuum Oil Co.: ‘We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own case, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful owner of the cause of action, and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorney’s just claims. In fact the lien under the agreement, was intended for and operates only as security for the attorney’s legal claims, and, unless those are prejudiced by the client’s contract, she has unrestricted control of the subject of the action, and the terms upon which a settlement shall be effected.’

Suffolk County Probate Lawyers said that the attorney makes no claim that his rights will be prejudiced in any manner by the termination of this action and it is apparent that the father’s estate is abundantly able and willing to pay his just compensation. Under such circumstances the attorney’s lien should not stand in the way of a termination of the action. It appears, however, that the motion for discontinuance is made by the daughter. This is inappropriate in view of Rule 301, Rules of Civil Practice which specifically provides for discontinuance by the complainant. However, since the father has died and has willed his entire estate to the daughter the action has become academic. In view of this fact the defendant’s motion will be considered to be one to dismiss the action on the ground that it has abated since the cause of action cannot now survive.

The separate motion on the petition of father’s attorney cannot be entertained by the court since it does not appear that either the executor of the father’s estate or the daughter has been served in the same manner as is provided for the service of a summons. Furthermore, the summary proceeding sought is ‘generally applicable only to disputes between attorney and client’ and ‘cannot be summarily determined between an attorney and persons who are not his clients, particularly when the amount due is in dispute as in the situation here’. Accordingly, the father’s motion to restrain the daughter is denied, the daughter’s cross-motion is granted dismissing the cause of action and vacating the stay contained in the order to show cause, and the motion of the attorney for the father, to impress a lien, is dismissed, without prejudice to any other action or proceeding to enforce such lien.

Section 475 of the Judiciary Law provides that, “From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, 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, determination, decision, judgment or final order in his client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.”

Furthermore, as to probate, the law substantially provides that, “If a party in a proceeding for the probate of a will requests a determination of the validity, construction or effect of any provision contained in the will process shall issue to all persons interested in the determination who have not appeared in the proceeding and notice shall be given in such manner as directed by the court to all those persons who have so appeared therein. Upon the entry of a decree admitting the will to probate the court may determine the question of construction or in its discretion may admit the will to probate and reserve the question for future consideration and decree. A decree in any proceeding authorized in this section or a decree settling an account of a fiduciary or a decree on probate which construes or interprets any portion of a will, unless reversed or modified on appeal, shall thereafter be binding and conclusive in all courts upon all parties to the proceeding and upon their successors in interest as to all questions of construction or interpretation of the will therein or thereby determined and of all rights and obligations of the parties involved in the construction, depending thereon, or resulting therefrom.”

In cases involving estate litigation, will contest, estate administration, it is not uncommon that some of us secure the assistance of an attorney and often an accountant and possibly one or more appraisers. Stephen Bilkis & Associates, with offices located throughout New York, has its Kings County Estate Lawyers, and its New York Probate Attorneys who can assist you in the legal process of administering the estates of deceased persons.

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